Fioriti (Migration)

[2022] AATA 1610

Fioriti (Migration) [2022] AATA 1610 (28 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lorenzo Fioriti

REPRESENTATIVE:  Ms Rebecca Santaera (MARN: 1173748)

CASE NUMBER:  1900293

HOME AFFAIRS REFERENCE(S):          BCC2018/4690801

MEMBER:Alan McMurran

DATE:28 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 28 April 2022 at 12:49pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – chef – intention to work in sponsor’s business or associated entity – no longer employed by nominator – working for another employer and subject of approved nomination, with visa application in progress – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(2)(b), (3)
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(2), (3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 6 January 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 28 December 2018 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 is a 24 year old citizen of Italy (”the applicant”), currently living and working in Melbourne. The applicant applied for the visa on 25 October 2018.

3. 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.

4. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Chef (ANZSCO 351311), sponsored by his employer, AMELLO Pty Ltd (“the sponsor”).  

5. 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(3) of Schedule 2 to the Regulations and therefore cl 482.212 was not met, because in the delegate’s assessment, the applicant did not have the necessary three years of relevant experience required for the occupation as specified in ANZSCO.

6. The applicant was represented in relation to the review. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets clause 482.212, as part of the common criteria for the grant of the visa.

8. The applicant has available the Department file and its own file, together with information as provided by the applicant’s representative and referred to below.

   Background

9. The applicant’s visa history from the Department information shows the applicant first came to Australia on a working holiday visa Subclass 417 arriving 25 September 2016.The applicant departed on 4 April 2017 then returned on 14 April 2017 on a second Subclass 417 visa. The applicant was granted a third Subclass 417 visa on 26 September 2017 which ceased on 1 November 2018.

10. The applicant was then granted a Bridging visa Subclass WA 010 on 25 October 2018, and a further Bridging visa WB 020 granted 3 March 2022,which remains current. The applicant is working on that visa whilst in Melbourne where he resides.

11. On 22 March 2022, the Tribunal invited the applicant to a hearing, and sent a request for information under s 359(2) of the Act. In particular, the Tribunal sought information as to the applicant’s skills and qualifications and employment background for the nominated occupation as a Chef.

12. On 5 April 2022, the applicant’s representative emailed a response. The response included the following:

    “The applicant is currently employed as a CHEF with Piccolino and has actually since had a TSS nomination approved with Piccolino.
    Furthermore, the applicant has recently lodged a new offshore 482 visa (as he was subject to s48) in association with the new nomination. The original nomination associated to the 482 visa that is currently being assessed at the AAT , is no longer available.
    Please advise is this 482 visa can continue to be assessed, and if it can in fact be linked to the most recently approved nomination. If this is possible, then it would be in the best interest of the applicant, as it means he will not need to leave the country to await the outcome of his other 482 visa.”

13. On 19 April 2022, a Tribunal officer telephoned the representative on request from the member. The representative asked the Tribunal to make a decision on the information before it, and was advised that in those circumstances, the hearing scheduled for 9 May 2022 would now be cancelled.

14. On 19 April 2022, the Tribunal emailed the applicant’s representative in reply as follows:

    “You informed the Tribunal on 5 April 2022 that the applicant is no longer employed by the nominator and has obtained a nomination approval under a new nominator. As discussed today, you agreed to the Tribunal making a decision based on the materials currently before it. Accordingly, the Tribunal will cancel the hearing scheduled on 9 May 2022 and proceed to make a decision.

    If you have any questions or are experiencing problems opening the document/s attached to this email message, please contact us immediately at [email protected], or call 1800 228 333.”

15. S.360(2)(b) of the Act provides that the Tribunal may decide the review without the applicant appearing before it if the applicant so consents. In those circumstances, the applicant is not entitled to appear [s.360(3)].

    Genuine position and intention to perform occupation

16. Clause 482.212(2) requires that the applicant’s intention to perform the nominated occupation is genuine and the position associated with the nominated occupation is genuine.

17. The applicant’s sponsor for this application has not participated in these proceedings. According to available ASIC information, the visa applicant’s  sponsor for this application operates a number of hospitality venues in Melbourne under several business names, including “Mr McCracken” trading from an address at Essendon Fields Victoria. This was the employer named in the applicant’s visa application to the Department.

18. According to the applicant’s submission to the Tribunal, the applicant now works for a different enterprise in Melbourne under the name “Piccolino”. According to ASIC information, the business is trading as the “Piccolino Pasta and Pizza Restaurant” owned by Mr John Dib, and at a different location.

19. No information has been provided by the applicant as to his new position, the reason for a change in his employment or any further or attempted explanation of the new circumstances. There is no information before the Tribunal about a “new nomination” and there is no available information about a “new offshore 482 application”, either from the applicant or from the Department.

20. The agent has said that the nomination, associated with this application by AMELLO Pty Ltd for ‘Mr. McCracken’, “is no longer available”. The Tribunal cannot “link” a visa application to another nomination, which the agent says is approved for ‘Piccolino’, and which is not the nomination associated with this visa application. If that is what the agent has submitted, the Tribunal cannot accede to that request.

21. The Tribunal has had regard to the available information, the agent’s submissions, and the Department file. The Tribunal finds that the applicant is no longer working in the role for which he was nominated, and the subject of a nomination by the related sponsor to this visa application.

22. There is no information therefore at the time of the Tribunal’s decision before the Tribunal which demonstrates that the applicant has a genuine intention to perform the related nominated occupation, or that the position associated with the related nominated occupation is genuine, because at the time of its decision, the Tribunal finds it is satisfied on the applicant’s information that the applicant’s position no longer exists with the sponsor.  

23. The fact that the applicant may have another nomination or visa application pending does not assist him with this application, and the Tribunal can only deal with the application before it. The applicant has not requested any delay pending some other development and has consented to the matter being finalised.

24. In that event, and in light of the new circumstances outlined by the representative now before the Tribunal, the Tribunal finds the requirements of cl 482.212(2) are not met.

25. In those circumstances, the applicant finds that the applicant cannot satisfy cl 482.212. 

26. For these reasons it is not necessary for the Tribunal to consider other remaining circumstances for the visa in the relevant subclause, including cl. 482.212(3), which was the provision the delegate found was not met concerning the skills, qualifications, and employment background in the related nominated role.

27. The Tribunal notes the applicant did not respond to the Tribunal’s specific request for information as to his qualifications and experience for the role, and which information has not been updated other than to inform the Tribunal that the applicant is now working somewhere else and for another nominator. The applicant did not seek to provide any further information about his qualifications and experience for the role.

    Requirements relating to employment in the nominated occupation and position

28. Additionally, cl 482.233 requires that either the applicant’s nominated occupation is specified in an instrument, or that the applicant is employed to work in the nominated occupation.

29. In the latter case, the employment must be in a position in the sponsor’s business or in an associated entity’s business. [emphasis added]

30. The applicant may only be employed in an associated entity if, at the time the nomination was approved, the sponsor was not an overseas business sponsor.

31. The Tribunal relies upon the findings set out above and finds at the time of decision that there is no information that the applicant is employed to work in a position in the sponsor’s business, or in the business of an associated entity of the sponsor.

32. For these reasons the requirements of cl 482.233 are not met.

    Conclusion

33. As essential requirements for the visa are not met, the decision under review must be affirmed

    DECISION

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

    Alan McMurran
    Member