Dillon (Migration)

[2023] AATA 1612

Dillon (Migration) [2023] AATA 1612 (29 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Caoilte

Dillon

Ms Kensey Cowley

REPRESENTATIVE:  Mr Robert Ivan Walker-Stambuk (MARN: 1463534)

CASE NUMBER:  1933429

HOME AFFAIRS REFERENCE(S):          BCC2019/4328400

MEMBER:Penelope Hunter

DATE:29 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 29 May 2023 at 9:29am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Joiner – no approved nomination – sponsoring employer deregistered – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 482.212, 482.312

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 8 November 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 August 2019. 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 primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Joiner (ANZSCO 331213).

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the nomination identified in the visa application by his sponsoring employer, Northside Fitouts, had not been approved.

4. On 27 April 2023, the Tribunal wrote to the applicants and advised it was unable to make a favourable decision on the information before it and invited them to attend a hearing before it on 26 May 2023 via telephone, to give evidence and present arguments.

5. On 11 May 2023, the Tribunal wrote to the applicants pursuant to the provisions of s 359A of the Act and invited them to comment or respond to information. It was identified to the applicants that information from the Australian Securities and Investment Commission (ASIC) register documented that the applicant’s sponsoring employer, Northside Fitouts, was deregistered on 27 June 2021. Further, that on 30 August 2021, the Tribunal found that it did not have jurisdiction to review the decision of the Department to refuse the nomination. The Tribunal explained the relevance of the information to the applicants if it relied on the information it may find that the relevant nomination had not been approved and the applicant may not be able to meet the requirements of cl 482.212 of Schedule 2 to the Regulations. Consequently the decision under review may be affirmed.

6. The applicant only appeared before the Tribunal on 26 May 2023 to give evidence and present arguments. The applicants were represented in relation to the review, however their representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The application had been made for the visa under review on the basis of a nomination in the position of Joiner by Northside Fitouts. The decision record of the delegate, provided to the Tribunal by the applicants, identifies that the nomination application was refused by the Department in the first instance.

10. The information before the Tribunal is that Northside Fitouts was deregistered on 27 June 2021. The applicant did not dispute this and told the Tribunal that the business had closed in early 2021. He said he had relocated to regional NSW and was currently working for another business.  

11. As set out in the s 359A correspondence sent to the applicants on 30 August 2021, the Tribunal found that it did not have jurisdiction to review the decision to refuse the nomination application. This means that the delegate’s decision has not changed and the Tribunal finds that the relevant nomination for the applicant has not been approved. The applicant confirmed at hearing that he did not dispute this finding.

12. The applicant told the Tribunal that the closure of the business by Northside Fitouts came as a bit of a surprise to him at the time. He confirmed that he was aware that as a consequence of it and the nomination refusal he was aware that he would not be able to satisfy the visa requirements. He told the Tribunal that both he and the secondary applicant had found alternative employment and were hopeful of pursuing further visa applications in the future. The Tribunal is unable to provide any comment on the merits or otherwise of subsequent applications. Its scope is limited to the review application before it.

13. Therefore, cl 482.212(1)(a) is not met, and cl 482.212 of Schedule 2 to the Regulations is not met as a whole.

14. The second named applicant has applied for the visa as a member of the family unit of the applicant, who is a person who satisfies the primary visa criteria. As the applicant has not met one of the primary visa criteria, the second named applicant is also unable to satisfy the secondary criteria contained in cl 482.312.

15. As the essential requirements for the visa is not met, the decisions under review must be affirmed

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Penelope Hunter
    Member