D'Amico (Migration)

[2022] AATA 2778

D'Amico (Migration) [2022] AATA 2778 (18 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Elisa D'Amico

REPRESENTATIVE:  Mr Matthew Peter Thompson (MARN: 0316476)

CASE NUMBER:  1822441

HOME AFFAIRS REFERENCE(S):          BCC2018/2189240

MEMBER:Ian Berry

DATE:18 January 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Statement made on 18 January 2022 at 10:55am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Café or restaurant manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2018 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 May 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Café or restaurant manager ANZSCO 141111.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant (the applicant) did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the applicant’s sponsoring employer did not have an approved nomination in place for the applicant.

4. The applicant was represented in relation to the review by her migration agent. By notification from the applicant, the migration agent no longer represented the applicant up to 14 January 2022.

5. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the nomination of which the applicant is the nominee, has been refused or otherwise been withdrawn.

   Requirement for an approved nomination

7. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval and has not ceased.

8. On 10 November 2021, the applicant’s sponsor’s[1] nomination application was refused by the Tribunal.

   [1] Che Fammi Pty Ltd as trustee for the Che Fammi Discretionary Trust Tribunal file 1818718.

   S.359A invitation to the applicant

9. On 29 November 2021, the Tribunal wrote to the applicant under s.359A of the Act, inviting the applicant to provide information or comment, in writing, on the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review:

   ·The particulars of the information are:

   oOn 21 May 2018, you lodged an application for A 482 Visa with the Department of Home Affairs (then Department of immigration and border protection) (the Department).

   oOn 7 June 2018, the nominator, Che Fammi Pty Ltd ATF Che Fammi Discretionary Trust, had their nomination application (nomination) refused by the Department. The nominator lodged an application for review of this decision with the Tribunal on 27 June 2018.

   oOn 10 November 2021, the Tribunal affirmed the Department’s decision to refuse the nomination.

   ·This information is relevant to the review because if the primary applicant cannot satisfy the criteria in clause 42.212(1) the visa application cannot be granted.

   ·If we rely on this information and making a decision, we may affirm the decision made by the Department.

   ·You are invited to give comments on or respond to the above information in writing.

   ·Your comments or response should be received by 13 December 2021. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   ·If you cannot provide your written comments or response by 13 December 2021, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 13 December 2021 and you must state the reason why the extension of time is required.

10. The applicant has requested an extension of time to comply with the invitation, which has been granted. While the applicant requested an extension to mid January 2022, other than in very general terms that documents are being acquired, no substantial reasons were given. In such an event, the Tribunal considered the timing of the request to provide information or make comment and decided to allow the applicant an extension of time to 14 January 2021.

11. On 14 January 2021, the applicant provided to the Tribunal, a series of documents which were unable to be read. From the documents presented, it appears the applicant has advised that the migration agent representing her is no longer doing so. No other information was provided.

12. The applicant’s covering letter is set out below so as to explain the Tribunal’s decision to proceed to make the decision.

    To the Administrative Appeals Tribunal

    Re-Case Number 1822441

    Thank you for the extension of time provided to me to be able to better assess my pathway moving forward.

    After seeking professional advice I am advising the Tribunal that I wish to move forward with the appeal and do not want to withdraw my appeal application.

    I am fully aware that my appeal will not be successful however I plan to apply to the Minister requesting that he use his “public interest That” powers to grant me an Australian Visa that will allow me to remain in Australia.

    I feel that I have been a victim of poor advice and a pandemic that has taken away any ability I might have had to win an appeal and therefore I am hoping that my continuous skilled employment in regional South Australia and my strong ties to the community of the Copper Coast (Kadina, Moonta and Wallaroo) and the contribution I have made, will give me a chance of success with the Minister.

    Again thank you for the additional time.

    I attach evidence that Mr Matthew Thompson is no longer my representative in this matter,

    Yours sincerely

    Elisa D’Amico

    (Signature)

13. The documents attached to the applicant’s covering email are:

    ·Form 956 appointment of a registered migration agent, legal practitioner or exempt person (page 3);

    ·Change of contact details – MR division signed by the applicant dated 21 December 2021 (page 1 of 2);

    ·Part C – declarations – ending appointment registered migration agent and withdrawal of authorised recipient appointment (page 5) signed and dated 21 December 2021;

    ·Page 4 of a form paragraphs numbered 12 – 17;

    ·Page 5 of a form entitled Part B – Ending appointment,

    ·Page 2 of 2 of a form ticking cancellation of authorised recipient, cancellation of representative signed by the applicant and dated 21 December 2021.

14. The Tribunal notes that the forms submitted by the applicant relate only to the applicant’s dissatisfaction of her migration agent and cancelling that agents acting for her. She made mention of making an appeal to the Minister but did not request the Tribunal to undertake that step.

15. The Tribunal is satisfied that the documents given by the applicant to the Tribunal on 14 January 2022 were not documents relating to the applicant’s application. Further, the applicant concedes that the she will not succeed should the matter have proceeded to a hearing.

16. For these reasons the requirements of cl 482.212(1) are not met.

17. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

    Ian Berry
    Member