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

1. 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.

2. 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.

3. 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.

4. 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 to the nomination or standard business sponsor applications at that time, as required by s.338(2)(d) of the Act. The Tribunal invited the applicants to comment on or respond to this issue by 18 August 2022.

5. On 17 August 2022, the applicants’ agent requested a 14 day of extension of time to respond. The Tribunal did not receive any further response to its letter of 4 August 2022.

6. On 20 October 2022, the Tribunal received a change of contact details signed by the second named applicant, indicating that they now wished correspondence to be sent directly to her.

7. On 26 October 2022, the Tribunal wrote to the applicants’ agent, enclosing a letter for the applicants, as follows:

   …

   You nominated Mr Vikas Jain as your authorised recipient to receive correspondence in connection with this review.

   On 20 October 2022 we received a completed change of contact details form via the Tribunal’s online portal. This form was uploaded by your representative Mr Vikas Jain and advises that they no longer represent you in this review and should no longer receive correspondence on your behalf.

   This form was signed by secondary applicant Mrs Kerry Finnegan. On 26 October 2022 the Tribunal tried to call Mr Paul Finnegan by phone to clarify your intentions but we were unable to contact you.

   It is important that the primary review applicant (Mr Paul Finnegan) now completes and returns one of the following forms to us as soon as possible. We will continue to send correspondence to Mr Vikas Jain if you do not return either of the forms mentioned below.

   1. Appointment of Representative/Appointment of Authorised Recipient form (MR5)

   If you wish to appoint another person as your authorised recipient and/or representative, you should complete this form. When we have received the completed form, all future correspondence will be sent to the newly nominated authorised recipient. Please refer to the reverse side of the form for more information.

   OR

   2. Change of Contact Details form (MR6)

   If you do not wish to appoint another person as your authorised recipient and want all future correspondence from us to be sent to you directly, you should complete this form to confirm the withdrawal of Mr Vikas Jain as your authorised recipient. When we have received the completed form, all future correspondence will be sent to you.

   …

8. The Tribunal did not receive a response from the applicants or their agent to the above letter.

9. On 22 November 2022, the Tribunal wrote again to the applicants via their agent to invite them to comment, pursuant to s.359A of the Act, on information held by the Tribunal that was potentially adverse to their case. Specifically, the Tribunal advised that a search of the Department’s Integrated Client Service Environment (ICSE) records indicated that the first named applicant did not hold a subclass 482 visa. The Tribunal advised the applicants that this information was relevant to the review because, subject to their comments or response, it indicated that the second, third and fourth named applicants would not meet the requirement in cl.482.312 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. The Tribunal advised that if it found this, this would be a reason to affirm the decisions to refuse subclass 482 visas to the second, third and fourth named applicants. The Tribunal requested that the applicants provide their comments or response by 6 December 2022, noting that if they failed to do so, and failed to request an extension of time to do so, by the due date, they would lose their entitlement to a Tribunal hearing, and the Tribunal might proceed to make its decision on the available evidence.

10. The Tribunal did not receive any response to its letter and nor did it receive a request for an extension of time to respond.

11. Neither the applicants nor their agent responded to the Tribunal’s s.359A letter, or sought an extension of time to do so, by 6 December 2022. The Tribunal is satisfied that its s.359A letter was sent to the email address for correspondence nominated by the applicants in their review application, and there is no indication that it was not delivered or was undeliverable. While the Tribunal notes that it received notification from the second named applicant in October 2022 that she wished the Tribunal to send correspondence to her email address, the applicants did not respond to the Tribunal’s request to have these instructions confirmed by the first named applicant (the primary applicant). Given this, the Tribunal continued to send its correspondence to the originally nominated email address for correspondence.

12. In the circumstances, s.359C applies and pursuant to s.360(3), the applicants are not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890.

13. Accordingly, the Tribunal has proceeded to make its decision on the available evidence. In doing so, the Tribunal considered whether it should adjourn the review under subsection 363(1)(b) of the Act for a further period to allow the applicants additional time to make further submissions. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment (for instance, where the applicant would be able to imminently provide information that would favourably affect the outcome of the case), and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

14. The Tribunal is of the view that, given the nature of the criteria in dispute (discussed further below), there would be no utility to deferring its decision further, and it has decided to proceed to a decision on the available evidence.

15. 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

16. 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 visa

    First named applicant

17. 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.

18. 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.

19. 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).

20. 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.

21. 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.

22. As noted above, on 4 August 2022, the Tribunal wrote to the applicants to advise them that it had taken the preliminary view that it did not have jurisdiction in respect of the first named applicant, as he was not the subject of an approved nomination on 10 May 2022 (the date of the primary decision to refuse the subclass 482 visas), nor was there a pending review application of a decision to refuse his employer’s nomination of him, or of a decision to refuse to approve that employer as a standard business sponsor, on 10 May 2022.

23. The Tribunal finds that it does not have jurisdiction to review the decision to refuse the first named applicant a subclass 482 visa as he does not meet s.338(2)(d)(i), (ii) or (iii), and (iv) is not applicable to him. This is because there was no approved nomination of him on 10 May 2022 (as the Department had refused to approve his employer’s nomination of him prior to that date, as set out in the primary decision record provided to the Tribunal by the applicants with the review application). Nor was there any review pending with the Tribunal on 10 May 2022 of the decision to refuse to approve the nomination, nor of any decision to refuse to approve the first named applicant’s employer as a standard business sponsor.

24. As the delegate’s decision in respect of the first named applicant is not reviewable in these circumstances, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in relation to him.

    Second, third and fourth named applicants

25. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

26. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

    ·the spouse or de facto partner of the family head;

    ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

    ·a dependent child of a person in the second dot point.

27. It is not disputed that the second, third and fourth named applicants are the wife and children of the first named applicant, who is the primary visa applicant. This information was contained in the primary visa application and documentary evidence was provided to the Department in support of the family relationship, which was not disputed by the delegate.

28. However, the second, third and fourth named applicants are unable to meet cl.482.312(1), which must be met at the time of decision (in this case, the time of the Tribunal’s decision in 2022). This is because they are not the wife and children, and thus are not members of the family unit, of a person who holds a subclass 482 visa, as the first named applicant was refused a subclass 482 visa and the Tribunal has found above that it has no jurisdiction to review that decision. There is no evidence before the Tribunal that the first named applicant holds a subclass 482 visa.

29. 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

30. The Tribunal does not have jurisdiction in relation to the first named applicant.

31. The Tribunal affirms the decision not to grant the second, third and fourth named applicants  Class GK subclass 482 Temporary Skill Shortage visas.

    Alison Mercer
    Member