Gamburger (Migration)

[2022] AATA 4615

Gamburger (Migration) [2022] AATA 4615 (7 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anton Gamburger

CASE NUMBER:  1836637

HOME AFFAIRS REFERENCE(S):          BCC2018/3551645

MEMBER:Nicola Findson

DATE:7 November 2022

PLACE OF DECISION:  Perth

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

Statement made on 07 November 2022 at 5:43pm

CATCHWORDS  
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Cook – subject of an approved nomination – no response to s.359A invitation – decision under review affirmed

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

CASES
Hasran v MIAC [2010] FCAFC 40 

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 22 November 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 applied for the visa on 18 September 2018. 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.

3. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Cook (ANZSCO 351411).

4. 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(1) of Schedule 2 to the Regulations, because there was no approved nomination.

5. On 13 December 2018, the applicant applied to the Tribunal for review of the Department’s decision, and with the application provided a copy of the delegate’s decision record.

6. On 21 October 2022 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, and invited his comments on the following information that it considered would be the reason, or part of the reason, for affirming the decision under review:

   On 14 November 2018, the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of The Lodge MGL Pty Ltd. On 16 September 2022, the Tribunal dismissed the review application made by The Lodge MGL Pty Ltd. Consequently, the decision made by the Department of Home Affairs on 24 October 2018, to refuse the nomination, stands.

   The letter indicated that the above information was relevant because the Tribunal may find that the applicant did not meet the requirements of cl 482.212(1) of Schedule 2 of the Regulations, which requires that the nomination identified in the application has been approved under s 140GB of the Act in relation to the applicant.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 4 November 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal is satisfied that its invitation to provide comments on the adverse information was delivered to the correct email address for the applicant.  To date, the requested comments have not been provided and the applicant has not made any contact with the Tribunal to indicate that the comments are forthcoming.  The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

10. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

11. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

12. On the basis of the information before it, the Tribunal finds that at the time the applicant lodged his visa application on 18 September 2018, he was the subject of a nomination application by The Lodge MGL Pty Ltd, for the position of Cook.  The Tribunal further finds that the nomination application made by The Lodge MGL Pty Ltd was refused by the Department on 24 October 2018, and, although The Lodge MGL Pty Ltd sought review of the refused nomination, on 16 September 2022 the Tribunal dismissed its review application.

13. As the nomination identified in the visa application has not been approved, the Tribunal finds that the requirements of cl 482.212(1) are not met.

14. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

    decision

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

    Nicola Findson
    Member