Gao (Migration)

[2021] AATA 3744

Gao (Migration) [2021] AATA 3744 (16 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tianfeng Gao

CASE NUMBER:  1828735

HOME AFFAIRS REFERENCE(S):          BCC2018/2161624

MEMBER:C. Packer

DATE:16 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 September 2021 at 11:56am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Cabinetmaker – genuine position – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, 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 14 September 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 May 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. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Cabinetmaker 394111.

3. 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 of Schedule 2 to the Regulations.

4. On 1 September 2021 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide updated and current information that addressed the requirements for the Temporary Skill Shortage (Class GK) visa. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 15 September 2021 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant has not provided the information 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the Temporary Skill Shortage (Class GK) visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant sought the visa in the Medium-term stream to work in the nominated occupation of Cabinetmaker 394111. He was nominated by the sponsor NK International Australia Pty Ltd.

8. On 1 September 2021 the Tribunal wrote to the applicant inviting the applicant to provide updated and current information that addressed the requirements for the Temporary Skill Shortage (Class GK) visa. The applicant has not provided the information within the prescribed period, no extension has been granted, and the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

9. Clause 482.212(2) requires that: (a) the applicant’s intention to perform the nominated occupation is genuine; and (b) the position associated with the nominated occupation is genuine.

10. In sum, the Tribunal has no information about the business/nominator, the nominated position and the applicant’s employment since 2018, now distant in time. Based on the material before it, the Tribunal is not satisfied that the applicant’s intention to perform the nominated occupation is genuine. The Tribunal is not satisfied that the position associated with the nominated occupation is genuine.

11. For these reasons, cl.482.212(2) is not met. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

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

    C. Packer
    Member