Devish Pty Ltd (Migration)

[2021] AATA 2143

Devish Pty Ltd (Migration) [2021] AATA 2143 (25 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Devish Pty Ltd

CASE NUMBER:  1832903

HOME AFFAIRS REFERENCE(S):          BCC2017/3551048

MEMBER:C. Packer

DATE:25 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 25 May 2021 at 1:41pm

CATCHWORDS

MIGRATION – approval of a nomination – occupation of Painting Trades Worker – genuine position – closure of the Subclass 457 visa program – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 140
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, rr 2.72, 2.73

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 22 October 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 28 September 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s 140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) of the Regulations because the delegate was not satisfied the position associated with the nominated occupation is genuine.

4. The applicant was invited to appear before the Tribunal on 21 May 2021 at 11am by phoning the Tribunal. The invitation stated in part that:

   If you do not participate in the scheduled hearing (that is, if you do not call the AAT at
   the scheduled date and time using the phone number and conference ID provided), we
   may make a decision on the review without taking any further action to allow or enable
   you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

5. The Tribunal was not phoned on the scheduled day and time. The applicant did not appear before the Tribunal on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s 140GBA must be met.

   Identification of the nominee

8. Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

9. In a letter dated 22 October 2020 the Tribunal advised the applicant in part that:

   The particulars of the information are:

   · It is a requirement for approval of the nomination that you have identified the visa holder, applicant or proposed applicant for the visa who will work in the nominated occupation. This requirement is in r.2.72(5) of the Migration Regulations 1994 as it applies to your case.

   ·    A review of your file and Departmental records suggests that the person you identified does not hold a Subclass 457 (Temporary Work (Skilled)) visa and they do not have an application for a Subclass 457 (Temporary Work (Skilled)) that is yet to be decided by the Department of Home Affairs or the Tribunal.

   ·    The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced 18 March 2018. As a result, the Subclass 457 visa program was repealed and closed to new applications from that date onwards.

   · The Subclass 482 (Temporary Skills Shortage) visa that commenced on 18 March 2018 is not compatible with a nomination application made before then, meaning that a Subclass 482 (Temporary Skills Shortage) visa holder cannot be relied upon to satisfy r.2.72(5) as it applies in your case.

   This information is relevant to the review because it suggests that the person you identified as the proposed applicant does not hold, and is unable to be granted, the type of visa required to work in your nominated occupation. 

10. The authorised representative responded by email on 22 October 2020 and stated:

    Thank you for your email. Please note that I am not representing this client and has informed to client and AAT. Hence I am not in a position to comment above matter.

11. On 23 April 2021 the Tribunal requested amongst other things, that the representative provide the applicant’s phone number, and on 26 April 2021 the former representative responded:

    I am not representing this client anymore.

12. The Tribunal sent the hearing invitation letter to the authorised recipient and to the business address. On 11 May 2021 the representative responded:

    As mentioned in our previous email, I am not representing this client anymore.

13. At the scheduled hearing on 21 May 2021 at 11am  the applicant did not phone the Tribunal. The Tribunal therefore proceeded to a decision based on the material before the Tribunal.

14. In the application the nominee was Smrita Shrestha. She was refused a 457 visa and did not seek a review. Her former spouse Sabin Ghimire sought a review and he stated: “ Recently me & my wife has made application for divorce. My wife withdraw my name from 457 Visa Application as she is the main applicant. I do not have copy of any documents but she had message me the copy of Visa Refusal Screenshot with hiding details.” However, his review application (1832743) was finalised on 16 January 2019 as ‘No jurisdiction’.

15. Accordingly, there is no application for a Subclass 457 (Temporary Work (Skilled)) that is yet to be decided by the Department of Home Affairs or the Tribunal. There is no-one identified who will work in the nominated occupation.

16. For these reasons the requirements of r.2.72(5) are not met.

17. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to approve the nomination.

    C. Packer
    Member