Galesi (Migration) - [2022] AATA 3664

Galesi (Migration) [2022] AATA 3664 (12 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Roberta GALISI
Mr Cesar SOARES

Master Eric GALISI PEREGO

CASE NUMBER:  2115910
HOME AFFAIRS REFERENCE(S):          BCC2019/4009797
MEMBER:Alison Mercer
DATE:12 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the second and third named applicants Temporary Skill Shortage (Class GK) visas.
The Tribunal has no jurisdiction in relation to the first named applicant.

Statement made on 12 September 2022 at 2:34pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Accommodation or Hospitality Manager – no approved nomination of first applicant – no review pending with the Tribunal on 18 October 2021 of the decision to refuse to approve the nomination – no jurisdiction in relation to the first named applicant – not members of the family unit, of a person who holds a subclass 482 visa – decision under review affirmed for second and third named applicants
LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359, 360
Migration Regulations 1994, r 2.75, Schedule 2, cl 482.212
CASES
Hasran v MIAC [2010] FCAFC 40
Minister for Immigration and Citizenship v Li [2013] HCA 18
Yang v MIAC [2010] FMCA 890
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 2021 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 20 December 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 Short-term stream to work in the nominated occupation of Accommodation or Hospitality Manager (not elsewhere classified).
The delegate in this case refused to grant the visa on the basis that the first named applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations, which required that she was the subject of an approved nomination by her Australian employer. The delegate found that there was no approved nomination and therefore the first named applicant did not meet the criteria for a subclass 482 visa. The delegate also refused to grant a subclass 482 visa to the second and third named applicants (the applicant’s partner and son) on the basis that they did not meet the secondary visa criteria…

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.

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Details

AGLC: Galesi (Migration) [2022] AATA 3664
Case: [2022] AATA 3664
Decision Date: 12 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a case involving an applicant seeking a Temporary Skill Shortage (Class GK) visa (subclass 482) and their family members. The primary dispute concerned the Tribunal's jurisdiction to review the refusal of the visa application for the first applicant and whether the second and third applicants, who were family members, met the criteria for the visa.

The legal issues before the Tribunal were twofold: firstly, whether it possessed jurisdiction to review the decision to refuse the subclass 482 visa to the first applicant; and secondly, whether the second and third applicants qualified as members of the family unit of the primary visa applicant, thereby satisfying the relevant visa criteria.

The Tribunal determined that it lacked jurisdiction in relation to the first applicant. This was because, for a subclass 482 visa, a reviewable decision under section 338(2) of the *Migration Act 1958* (Cth) requires, among other things, that at the time of the refusal decision, either an approved nomination identifying the applicant was in effect, or a review of a decision not to approve the sponsor or the nomination was pending. In this instance, there was no approved nomination for the first applicant, nor was there a review pending concerning the refusal to approve the nomination. Consequently, the Tribunal affirmed the decision under review for the second and third applicants, as they did not meet the criteria for the grant of a subclass 482 visa, which was the only relevant visa subclass in this matter.

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 has no jurisdiction in relation to the first named applicant, and that the decision under review in relation to the second and third named applicants should be affirmed.CONSIDERATION OF LAw, CLAIMS AND EVIDENCE The issues in this review are:·whether the Tribunal has jurisdiction to review the decision to refuse the first named applicant a subclass 482 visa; and ·whether the second and third named applicants are members of the family unit of the primary visa applicant and satisfies cl 482.312.Jurisdiction in relation to the first 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).[1] 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. [1] 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;[2] 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.[3][2] See reg 2.75 for cessation of nominations associated with Subclass 482 visas.[3] 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.[4] 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. [4] 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 and third 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 decision under review will be affirmed in relation to them.decision The Tribunal affirms the decisions not to grant the second and third named applicants GK – Temporary Skill Shortage (Class GK) visas. The Tribunal has no jurisdiction in relation to the first named applicant.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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