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

1. 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).

2. 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).

3. 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 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.

4. The Tribunal received a review application from the applicants on 5 November 2021, which was accompanied by a copy of the delegate’s decision, and an authority by which the applicants appointed a registered migration agent, Mr Michel Sulzbach, as their representative and authorised recipient for correspondence.

5. On 30 November 2021, the Tribunal wrote to the applicants via their agent to advise that its preliminary view was that it did not have jurisdiction to review the decision to refuse the first named applicant a subclass 482 visa. The Tribunal advised that this was because the decision to refuse her a subclass 482 visa did not appear to meet the pre-conditions for a reviewable decision, as, at the time that the Department made its decision on 18 October 2021, the first named applicant was not the subject of an approved nomination, and nor was there a pending review application in relation to a decision to refuse her employer’s nomination or not to approve the employer as a standard business sponsor (SBS) (as required by s.338(2)(d) of the Act). The applicants were invited to provide their views on this issue.

6. On 14 December 2021, the applicants’ agent provided a response indicating that a nomination of the first named applicant had been lodged by her employer on 20 December 2019 and had been approved on 22 January 2020. The visa applications had been lodged on 20 December 2019. The agent submitted that the nomination had not ceased 12 months after its approval because, at that time, the visa applications had yet to be decided. The applicants conceded that the first named applicant’s employer’s approval as a Standard Business Sponsor (SBS) had now expired but they advised that a new application for approval had been lodged and was pending, and that the original SBS approval was valid until 27 April 2021, which was more than 12 months after the nomination had been approved on 22 January 2020. He argued that the nomination had not ceased by virtue of r.2.75(2).

7. On 28 July 2022, the Tribunal wrote to the second and third named applicants to invite them, pursuant to s.359A of the Act, to provide comments or a response to information held by the Tribunal that was potentially adverse to their case. Specifically, the Tribunal noted that in the Department’s decision of 18 October 2021 to refuse them subclass 482 visas, the first named applicant was the primary visa applicant and the delegate found that she did not satisfy the primary visa criteria in cl.482.212 (which required her to have an approved nomination by a Standard Business Sponsor). The Tribunal noted that the second and third named applicants were also refused subclass 482 visas on the basis that they did not satisfy cl.482.312, which required that they were members of the family unit of a person who held a subclass 482 or a subclass 457 visa granted on the basis that they satisfied the primary visa criteria.

8. The Tribunal advised that its records indicated that, subsequently, the applicants applied to the Tribunal for review of the decision to refuse them subclass 482 visas on 5 November 2021, and that on 30 November 2021, the Tribunal wrote to them to advise that it did not believe that it had jurisdiction to review the decision to refuse the first named applicant a subclass 482 visa, as at the time that the delegate made the refusal decision on 18 October 2021, the first named applicant was not the subject of an approved nomination, nor was there a pending review application in relation to the nomination refusal decision or of a decision to refuse to approve her employer as a Standard Business Sponsor (as required by s.338(2)(d) of the Act, which set out when a subclass 482 visa refusal decision is reviewable by the Tribunal). The Tribunal further noted that they were invited to comment on this information by and did so on 14 December 2021. It noted that they argued that the nomination of the first named applicant was still in force at the time of the delegate’s decision and thus the Tribunal did have jurisdiction in relation to her, pursuant to r.2.75(2) of the Regulations.

9. The Tribunal advised the applicants that, in its view, rr. 2.75(2)(a), (b), (ba), (c), (e), (f), and (g) were not applicable to the circumstances of their case, and the issue was whether r.2.75(2)(d) applied to the nomination of the first named applicant, such that it had not ceased by 18 October 2021.

10. The Tribunal noted that for the purposes of r.2.75(2)(d), a nomination ended on the nomination end day unless on that date, the person (that is, the nominator) is an SBS.

11. The Tribunal further noted that, as per r.1.03 of the Regulations:

    ·     Nomination end day means the day 3 months after the cessation of the sponsorship end day; and

    ·     Sponsorship end day means the day on which the approval as an SBS ceases

12. The Tribunal indicated that, in this case:

    o   the sponsorship end day was 27 April 2021.

    o   the nomination end day was 28 July 2021

    o   on the nomination end day – 28 July 2021 - the person (that is, the first named applicant’s nominating employer) was not an SBS, and it did not appear that there was at that point an application in place for a new SBS – rather, the evidence provided to the Tribunal indicated that the new SBS application was not lodged by the first named applicant’s employer until later in 2021.

13. Based on the above, the Tribunal advised that it appeared that r.2.75(2)(d) applied such that the nomination ceased on 28 July 2021. In that case, the Tribunal had no jurisdiction to review the decision to refuse the first named applicant a subclass 482 visa, as s.338(2)(d) was not met as she was not the subject of an approved nomination on 18 October 2021 (and nor was there a pending review application in respect of a nomination refusal or an SBS refusal). The Tribunal noted, however, that it still appeared to have jurisdiction to review the decision to refuse the second and third named applicants subclass 482 visas, as per s.338(9) and r.4.02(q).

14. The Tribunal stated that, given this, it sought the second and third named applicants’ comments about additional potentially adverse information that affected their case, as follows:

    • a check of the Department’s Integrated Client Services Environment (ICSE)

    records on 25 July 2022 indicated that the first named applicant did not hold a subclass 482 or a subclass 457 visa.

15. The Tribunal advised that this information was relevant to the review because, subject to the second and third named applicants’ comments or response, it indicated that:

    ·they were not members of the family unit of a person who held a subclass 482 visa or a subclass 457 visa that was granted on the basis of them meeting the primary visa criteria, as required by cl.482.312. The Tribunal stated that this would be the reason (or part of the reason) for it to affirm the decision under review, as it was a requirement that they met cl.485.312 at the time of decision.

16. The Tribunal requested the second and third named applicants to provide a response or comments by 11 August 2022, noting that if they failed to do so (or failed to ask for an extension of time to do so by that date), then they would lose their entitlement to a hearing and the Tribunal might proceed to a decision on the basis of the available evidence.

17. On 12 August 2022, the Tribunal received an email response from the applicants’ agent as follows:

    …

    I am currently in further discussion with both the visa applicant and the sponsoring business to prepare a full response to the tribunal about the above mentioned matter.

    Given the sensitivity of the matter (which involves an employment relationship in Australia), we would highly appreciate if an extension could be given for us to prepare such response.

    We, therefore, would like to request an extension until next Friday – 19/08/2022, to reply to your communication.

    …

18. On 15 August 2022, the Tribunal wrote to the applicants via their agent to advise that their request for an extension of time had been received; however, the Presiding Member had reviewed the extension request and was of the view that it was received after the deadline of 11 August 2022. The Tribunal advised that this was because the Tribunal’s electronic records showed that the response was received at 3.01pm on 12 August 2022, after the prescribed date for response (11 August 2022). Accordingly, the Tribunal confirmed that the second and third applicants had lost their entitlement to a hearing before the Tribunal, but it advised them that the Presiding Member had agreed to defer making a decision in this matter until 29 August 2022 to enable them to provide any additional material to support the case that they wished to provide.

19. On 29 August 2022, the Tribunal received the following response by email from the applicants’ agent:

    …

    Following further discussions with the main applicant and her family, they have today reached a decision to depart Australia and at this stage instructed me that they would prefer not to make any additional comments to their matter.

    The applicants, however, would like to kindly request the matter to be finalized by the end of this week (or even early next week) so to allow them some extra days to organize their life to depart Australia. They have been living here for 8 years and would appreciate the additional time to get things in order to leave. They also kindly request that both matters (main applicant and dependents) are finalized on the same day.

    …

20. The Tribunal did not receive any further response, comments or any further request for an extension of time to do so, by 29 August 2022. The Tribunal has received no further communication from the applicants to date.

21. The second and third named applicants did not respond to the Tribunal's s.359A letter by the extended due date. In the circumstances, s.359C applies and pursuant to s.360(3), they not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890, and Hasran v MIAC [2010] FCAFC 40.

22. Accordingly, the Tribunal has proceeded to make its decision on the available evidence. In doing so, the Tribunal notes that it has written in detail to the applicants about the legal issues arising in their case. The applicants have had the benefit of migration assistance from their agent, and have indicated via their agent that they did not wish to make any further comment or response to the issues raised by the Tribunal in its letters to them.

23. The Tribunal's s.359A request also outlined that one of the consequences of a non-response was that the Tribunal might proceed to make a decision on the available evidence. In these circumstances, and having regard to the principles set out in Minister for Immigration and Citizenship v Li [2013] HCA 18, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral.

24. 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

25. 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

26. 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.

27. 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.

28. 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).

29. 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.

30. 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.

31. As noted above, on 30 November 2021, 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 she was not the subject of an approved nomination on 18 October 2021 (the date of the primary decision to refuse the subclass 482 visas), nor was there a pending review application of a decision to refuse her employer’s nomination of her, or of a decision to refuse to approve that employer as a standard business sponsor, on 18 October 2021. As also noted above, the applicants responded to this information on 14 December 2021.

32. The Tribunal carefully considered their response, in particular their agent’s contention that the approved nomination of the first named applicant had not ceased as of 18 October 2021 but has reached a different conclusion. For the reasons set out in paragraphs 9 to 13 above, the Tribunal finds that the nomination of the first named applicant had ceased by operation of r.2.75(2)(d) by 18 October 2021, and it further finds that there was no pending review of a decision to refuse a nomination or an SBS approval on that date.

33. The Tribunal finds that it does not have jurisdiction to review the decision to refuse the first named applicant a subclass 482 visa as she does not meet s.338(2)(d)(i), (ii) or (iii), and (iv) is not applicable to her. This is because there was no approved nomination of her on 18 October 2021 (as it had ceased on 22 January 2021). Nor was there any review pending with the Tribunal on 18 October 2021 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.

34. 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 her.

    Whether the second and third named applicants are members of the first named applicant’s family unit and satisfy cl.482.312

35. 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.

1. 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.

2. It is not disputed that the second and third named applicants are the spouse and son (respectively) 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.

3. However, the second and third 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 spouse and child, and thus 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. There is also no evidence that the second and third applicants meet the primary visa criteria in their own right.

4. 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

5. The Tribunal affirms the decisions not to grant the second and third named applicants GK – Temporary Skill Shortage (Class GK) visas.

6. The Tribunal has no jurisdiction in relation to the first named applicant.

   Alison Mercer
   Member