Finnegan (Migration) - [2022] AATA 4693

Finnegan (Migration) [2022] AATA 4693 (9 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Paul Jarron Finnegan
Mrs Kerry-sue Finnegan
Master Hawke Jarron Finnegan
Master Phoenix Jarron Finnegan
REPRESENTATIVE:  Mr Vikas Jain
CASE NUMBER:  2207886
HOME AFFAIRS REFERENCE(S):         BCC2021/26756
MEMBER:Alison Mercer
DATE:9 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in relation to the first named applicant.
The Tribunal affirms the decisions not to grant Class GK subclass 482 Temporary Skill Shortage visas to the second, third and fourth named applicants.

Statement made on 9 December 2022 at 3:41pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – reviewable decision – additional requirement – subject of an approved nomination – No jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 359C, 360, 363A, 411
Migration Regulations 1994 (Cth), r 4.02; Schedule 2, cls 482.212
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
Yang v MIAC [2010] FMCA 890
statement of decision and reasons
application for review

An application was made to the Tribunal on 30 May 2022 for review of decisions made by a delegate of the Minister for Immigration (the delegate) on 10 May 2022 to refuse to grant Class GK subclass 482 Temporary Skill Shortage visas to the applicants.
In the delegate’s decision, the delegate found that the first named applicant did not meet cl.482.212 of Schedule 2 to the Migration Regulations (the Regulations) as he was not the subject of an approved nomination by an approved standard business sponsor. The delegate also refused to grant subclass 482 visas to the second, third and fourth named applicants (the first named applicant’s wife and children) as they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 482 visa, and there was no evidence that they met the primary visa criteria in their own right.
As noted above, the applicants sought review of these decisions with the Tribunal on 30 may 2022. The review application was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Jain Vikas, as their representative and authorised recipient for correspondence.
On 4 August 2022, the Tribunal wrote to the applicants via their agent to advise them that a preliminary view had been formed that the Tribunal did not have jurisdiction to review the decision of the delegate to refuse to grant the first named applicant a subclass 482 visa, as at the time of the primary decision, he was not the subject of an approved nomination and nor was there a review application pending with the Tribunal relating…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Finnegan (Migration)

Details

AGLC: Finnegan (Migration) [2022] AATA 4693
Case: [2022] AATA 4693
Decision Date: 9 December 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a case involving an application for a Temporary Skill Shortage (Class GK) visa (subclass 482). The dispute concerned whether the Tribunal had jurisdiction to review the refusal of the visa application for the first applicant and whether the second, third, and fourth applicants met the criteria for the grant of the visa.

The primary legal issues before the Tribunal were: first, whether it possessed jurisdiction to review the decision in relation to the first named applicant; and second, whether the second, third, and fourth named applicants satisfied the requirements for a subclass 482 visa. The Tribunal's jurisdiction to review decisions under the Migration Act 1958 (Cth) is established by specific provisions, including sections 338 and 411 of the Act and regulation 4.02(4) of the Migration Regulations 1994 (Cth). For onshore visa applications, a refusal to grant a subclass 482 visa is reviewable under section 338(2) of the Act, provided certain conditions are met.

The Tribunal reasoned that while the general conditions for reviewability under section 338(2) were satisfied, an additional requirement under section 338(2)(d) applied to subclass 482 visas. This additional requirement mandates that, at the time of the refusal decision, one of four alternative conditions must be met. Crucially, for primary subclass 482 visa applicants, it is a criterion that they be identified in an approved nomination. Therefore, one of the first three alternatives under section 338(2)(d) must be satisfied: either the applicant is identified in an approved nomination, or a review of a decision not to approve the sponsor is pending, or a review of a decision not to approve the nomination is pending. The Tribunal found that these specific jurisdictional requirements were not met for the first applicant.

Consequently, the Tribunal determined that it lacked jurisdiction in relation to the first named applicant. For the second, third, and fourth named applicants, the Tribunal affirmed the decision not to grant them the subclass 482 visas, as they did not satisfy the visa criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided that it does not have jurisdiction in relation to the first named applicant, and that the decision to refuse the second, third and fourth named applicants subclass 482 visas must be affirmed. CONSIDERATION OF LAW, CLAIMS AND EVIDENCE The issues in this case are:·whether the Tribunal has jurisdiction in relation to the first named applicant; and·whether the second, third and fourth named applicants meet the criteria for the grant of a subclass 482 visaFirst named applicant The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable. For onshore visa applications, such as the current one, a decision to refuse to grant a subclass 482 visa is reviewable in certain circumstances as set out in s 338(2). Paragraphs (a) to (c) of s 338(2) apply in all cases, requiring that the visa could be granted to a person in the migration zone, and the person made the application in the migration zone after being immigration cleared (which would always be the case for a valid onshore subclass 482 visa application). The Tribunal is satisfied that these conditions are met in this case. However, section 338(2)(d) imposes an additional requirement for certain prescribed temporary visas to be reviewable (including subclass 482 visas).[6] There are four alternative requirements; however, the fourth is only applicable if it is not a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the Regulations. [6] A Subclass 482 visa is prescribed for s 338(2)(d): reg 4.02(1A). In each instance, the requirement must be met at the time the decision to refuse to grant the visa is made. The alternatives are:(i)the non-citizen is identified in an approved nomination that has not ceased under the regulations;[7] or(ii)a review of a decision under s 140E not to approve the sponsor of the non-citizen is pending; or(iii)a review of a decision under s 140GB not to approve the nomination of the non-citizen is pending; or(iv)except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased, the non-citizen is sponsored by an approved sponsor.[8][7] See reg 2.75 for cessation of nominations associated with Subclass 482 visas.[8] s 338(2)(d) as repealed and substituted by No 90, 2018, with effect for decisions made on or after 13 December 2018. All primary subclass 482 visa applicants must be identified in an approved nomination.[9] Accordingly one of the first three alternative requirements (ss 338(2)(d)(i)–(iii)) must be met, at the time the decision to refuse to grant the visa is made. This means that, at that point in time, a nomination identifying the primary visa applicant must be approved, or a decision not to approve their sponsor be pending review before the Tribunal, or a decision to refuse the nomination be pending review before the Tribunal, for the decision to be a Part 5-reviewable decision. [9] See cl 482.212(1), which applies to all primary applicants regardless of the stream applied for.

Decision

Reasons for decision

It follows that the second, third and fourth named applicants do not satisfy the criteria for the grant of a subclass 482 visa. As this is the only relevant subclass in this case, the decisions under review will be affirmed in relation to them.decision The Tribunal does not have jurisdiction in relation to the first named applicant. The Tribunal affirms the decision not to grant the second, third and fourth named applicants Class GK subclass 482 Temporary Skill Shortage visas.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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