Devine (Migration)

[2020] AATA 1872

Devine (Migration) [2020] AATA 1872 (13 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ryan Michael Devine
Ms Carrie Margaret Mc Gillion

CASE NUMBER:  1910658

DIBP REFERENCE(S):  BCC2018/6242850

MEMBER:Michelle East

DATE:13 May 2020

PLACE OF DECISION:  Perth

DECISION:1. In relation to the first-named applicant, the Tribunal does not have jurisdiction in this matter.

2. In relation to the second-named applicant, the Tribunal affirms the decision not to grant the applicant a Temporary Skill Shortage (Class GK) visa.

Statement made on 13 May 2020 at 3:20pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – employer’s nomination application for first applicant refused – no application for review – no jurisdiction for first applicant – member of family unit – decision under review affirmed for second applicant

LEGISLATION

Migration Act 1958 (Cth), ss 140GB, 338(2)(d), 359AA

Migration Regulations (Cth), r 4.02(1A), Schedule 2, cl 482.212(1)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 29 April 2019 for review of the decision of the delegate dated 11 April 2019.

2. The first-named applicant applied for the grant of a Temporary Skill Shortage (Medium Term) (subclass 482) visa on the basis that he was nominated for the position of Carpenter (ANZSCO 331212) by his sponsor Highlight Investments Pty Ltd. 

3. The delegate’s decision (a copy of which was attached to the application for review) indicates that the second-named applicant applied for her visa on the basis that she was a member of the family unit of the first-named applicant, who having satisfied the primary criteria, is the holder of a Subclass 457 (Temporary work (Skilled)) visa or a Subclass 482 (Temporary Skill shortage) visa.

4. The delegate decided that as the first-named applicant did not hold the requisite visa, the second-named applicant was not a member of the family unit of a person who is the holder of a Subclass 457 visa or a Subclass 482 visa.

5. The basis of the delegate’s decision dated 11 April 2019 was that the nomination application lodged by Highlight Investments Pty Ltd was refused by the delegate on 23 January 2019 and no application for review was lodged with the Tribunal.  Therefore, at the time of the delegate’s decision on 11 April 2019, there was no valid application for review before the Tribunal for the nomination decision refusal.  Accordingly, section 338(2)(d) was not met.

6. A decision to refuse to grant a Subclass 482 visa is a reviewable decision under Part 5 of the Migration Act 1958 (the Act) in certain circumstances, including that the applicant must have made the visa application while in the migration zone. It is a requirement for the visa that the nomination identified in the visa application must have been approved under s.140GB of the Act and the nomination made by a person who was an approved sponsor at the time the nomination was approved: cl.482.212(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations). Accordingly, the decision is reviewable if at the time the decision to refuse to grant the visa was made: either the applicant is identified in an approved nomination that has not ceased; or a review of a decision under s.140E not to approve the sponsor of the applicant is pending; or a review of a decision under s.140GB not to approve the nomination of the applicant is pending: s.338(2)(d) of the Act and r.4.02(1A) of the Regulations.

7. On 5 May 2020 the Tribunal invited the first and second-named applicant to a hearing to provide evidence and submissions.

8. The Tribunal informed the first-named applicant that it was of the preliminary view that he had not made a valid application, noting that a review of Tribunal records indicates that at the time of the application to the Tribunal there was no valid and pending application for review of a decision not to approve the nomination under s.140GB of the Act.  The Tribunal invited the first-named applicant to respond.  He confirmed he was still working for Highlight Investments as well as another company.  He and the second-named applicant informed the Tribunal they now have a 3 month old infant and wanted to secure a future in Australia.

9. The Tribunal also advised the second-named applicant pursuant to section 359AA of the Act of the reason or part of the reason that would be the basis for the decision under review to be affirmed.  Namely, even though the Tribunal has jurisdiction to consider her application as a secondary applicant, unless the Tribunal found that she was a member of the family unit of a person who is the holder of a Subclass 482 visa, it would have no option other than to affirm the decision.  The second-named applicant was also invited to make further submissions.  She indicated that she understood the basis upon which her application was refused.

10. The Tribunal finds that, at the time the decision to refuse to grant the visa was made, the first-named applicant was not identified in an approved nomination that has not ceased, no review of a decision not to approve the sponsor of the applicant was pending, and no review of a decision not to approve the nomination of the applicant was pending. Accordingly, the requirements of s.338(2)(d) were not met.

11. The Tribunal has significant sympathy for the applicants in this matter.  In light of the current COVID-19 situation, the Tribunal also has concerns about their return to Ireland with a young infant.

12. Unfortunately, however, as the Tribunal does not have jurisdiction with respect to the first-named applicant, it has no discretion in making its decision in this matter.

13. As the delegate’s decision with respect to the first-named applicant is not reviewable under Parts 5 or 7 of the Act it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

14. With respect to the second-named applicant, as the first-named applicant did not hold the requisite visa, the second-named applicant is not a member of the family unit of a person who is the holder of a Subclass 457 visa or a Subclass 482 visa.

15. For this reason the requirements of cl.482.312 are not met.

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

    DECISION

17. In relation to the first-named applicant, the Tribunal does not have jurisdiction in this matter.

18. In relation to the second-named applicant, the Tribunal affirms the decision not to grant the applicant a Temporary Skill Shortage (Class GK) visa.

    Michelle East
    Member