Espejo (Migration)

[2024] AATA 1617

Espejo (Migration) [2024] AATA 1617 (30 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maria Cecilia  Espejo

REPRESENTATIVE:  Mrs Sandra Coates (MARN: 1173666)

CASE NUMBER:  2118200

HOME AFFAIRS REFERENCE(S):          BCC2021/1752957

MEMBER:Peter Emmerton

DATE:30 April 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 30 April 2024 at 2:10pm

CATCHWORDS   
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Short-term stream – Massage Therapist – no approved nomination identifying the applicant at the time of its decision – was not the subject of an approved nomination as required – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 15 November 2021 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 9 September 2021. 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 Massage Therapist, ANZSCO 411611, Skill level 3.

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Regulations because at the time of decision, the applicant was not the subject of an approved nomination and had not withdrawn their application in writing.

4. The applicant was represented in relation to the review.

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 is approved.

   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. The nomination was refused by the Department on 15 October 2021. The nominator applied for a review of the decision by the AAT which was subsequently affirmed on 9 April 2024. Therefore, there is not a valid nomination associated with this visa application.

9. The visa applicant’s visa was refused by the Department on 15 November 2021 as there was not an approved nomination associated with it. The visa applicant applied for review by the AAT on 3 December 2021. On 18 March 2024 the Tribunal informed them that the nominator had applied for review by the AAT and it was subsequently affirmed on 9 April 2024. Therefore, the nominator’s application for the nomination remains not approved.

10. The contents of the letter are set out below.

    ‘Case number: 2118200

    9 April 2024

    Dear Mrs Espejo

    INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MRS MARIA
    CECILIA ESPEJO

    I am writing on instruction from the Member conducting your review, in relation to the
    application for review made by you in respect of a decision to refuse to grant a GK –
    Temporary Skill Shortage (Class GK) visa.

    In conducting the review, we are required by the Migration Act 1958 to invite you to
    comment on or respond to certain information which we consider would, subject to
    your comments or response, be the reason, or a part of the reason, for affirming the
    decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·The application for approval of the nominated position made by Leanne Condina

    and Domenic Condina (the nominator) was refused by a delegate of the Minister

    for Immigration. The nominator sought a review of that decision but it was recently

    affirmed by the AAT. This means that the nominator’s application for the nominated

    position has not been approved.

    This information is relevant to the review because it is a requirement for the grant of
    the visa that the position specified in your visa application is the subject of an
    approved nomination.

    If we rely on this information in making our decision, we may find that the position
    specified in your visa application is not the subject of an approved nomination. This
    would mean that you do not satisfy a requirement for the grant of the visa and that we
    must affirm the decision that is under review.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 23 April 2024. 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 23 April 2024, 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 23 April 2024 and you must state
    the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as
    extended, we may make a decision on the review without taking any further action to
    obtain your views on the information. You will also lose any entitlement you might
    otherwise have had under the Migration Act 1958 to appear before us to give
    evidence and present arguments.

    If you have any questions, please email [email protected], or contact me on the
    number listed below, or telephone our national enquiry line on 1800 228 333. For
    language assistance, please contact the Translating and Interpreting Service (TIS) on
    131 450.’

11. No response was received from the visa applicant. Therefore, the Tribunal has made its decision that there remains no valid nomination associated with this visa. Without a valid nomination it is not possible to approve the visa.

12. For these reasons the requirements of cl 482.212(1) are not met, subsequently cl 482.212 is not met.

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

    DECISION

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

    Peter Emmerton

    
    

    Member