George (Migration)

[2022] AATA 2169

George (Migration) [2022] AATA 2169 (6 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Travo Edmond George
Mrs Shiromiya Mary Jesmin Arul Victor

REPRESENTATIVE:  Mr Joshi Prasad Thalluri (MARN: 0210891)

CASE NUMBER:  2110160

HOME AFFAIRS REFERENCE(S):         BCC2020/2215844

MEMBER:C. Packer

DATE:6 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in respect of the first-named applicant in this matter; and

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

Statement made on 6 June 2022 at 11:17am

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– nomination by Sankunnikutty Pty Ltd had been withdrawn – Tribunal does not have jurisdiction with respect to the first-named applicant – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 338, 347
Migration Regulations 1994, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Home Affairs, dated 2 August 2021, to refuse to grant GK – Temporary Skill Shortage (Class GK) (subclass 482) visas under s 65 of the Migration Act 1958 (Cth) (the Act). This decision is reviewable under s 338(2) of the Act.

2. The review application was lodged with the Tribunal on 9 August 2021.

3. A hearing was held by phone on 6 June 2022.

4. For the following reasons, the Tribunal has no jurisdiction to review the decision for the first-named applicant as his application was not made in accordance with the relevant legislation. The Tribunal affirms the decision not to grant the second-named applicant a Temporary Skill Shortage (Class GK) visa.

   The first-named applicant

5. In respect of the first-named (primary) applicant, the issue is whether the decision is a Part-5 reviewable decision for the purposes of s.347(1).

6. In the case of a decision described in s.338(2)(d), the section provides:

   (d)  if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i)  the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or

   (ii)  a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or

   (iii)  a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; 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 under the regulations--the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.

7. The application for the subclass 482 visas was refused by the delegate of the Minister on 2 August 2021. However, on that date there was no review of a decision pending within the terms of s338(2)(d)(ii) or (iii). Rather, departmental systems show the nomination by Sankunnikutty Pty Ltd had been withdrawn on 30 June 2021. Accordingly, s.338(2)(d)(ii) and (iii) are not satisfied.

8. As it appeared the Tribunal did not have jurisdiction with respect to the applicant, the Tribunal sent a natural justice letter dated 16 August 2021 and invited comments by 30 August 2021, extended to 20 September 2021. On 19 September 2021 the representative provided a response and attached letters from the applicant, his current employer, and a Department notification of approval of a nomination dated 11 August 2021.

9. The approved nomination concerned The Opal Inn Pty Ltd and showed the applicant was the nominee. However, although the applicant was identified in a nomination by The Opal Inn Pty Ltd approved on 11 August 2021, that approval was made after the refusal decision on 2 August 2021. At the time of the refusal decision on 2 August 2021 the applicant was not identified in an approved nomination that had not ceased because: the nomination by Sankunnikutty Pty Ltd had ceased when it was withdrawn on 30 June 2021; and the nomination by The Opal Inn Pty Ltd had not been approved at that date. Accordingly, s.338(2)(d)(i) is not satisfied.

10. A submission on 30 May 2022 submitted that on 24 March 2022 The Opal Inn Pty Ltd sold out to a new company:

    I wish to inform you that Mr. George had a nomination approval from The Opal Inn Pty Ltd
    previously but he could not lodge his visa application from offshore due to travel restriction
    (COVID PANDEMIC). On 24/03/2022 company sold out to a new company called Black Rhino
    Group Pty Ltd. The new owners are happy to keep Mr. George as a head chef on their business
    and they advertised on the position and already started the nomination process.
    I wish to state that Mr. George's home country, Sri Lanka is facing its worst economic crisis,
    with food and fuel shortages, soaring prices, and power cuts affecting large number of the
    citizens, and also that Australian government advises reconsider to travel to Sri Lanka due to
    the security situation. Mr. George is waiting to go offshore and lodge his 482 visa application
    once it is safe to travel.
    I humbly request you to grant Mr. George a three months’ time for outcome of the decision.

11. As it is a ‘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’, s.338(2)(d)(iv) is not satisfied.

12. At hearing the applicant discussed the poor working conditions of his first workplace and his employment and health difficulties. He and the representative asked for the Tribunal to delay a decision. The Tribunal indicated it would not delay making a decision.

13. In sum, the Tribunal does not have jurisdiction with respect to the first-named applicant as none of the specified requirements in s 338(2)(d) are met.

    The second-named applicant

14. The second-named (secondary) applicant, Shiromiya Mary Jesmin Arul Victor, did not seek to satisfy the primary criteria and the visa was refused because she did not satisfy the secondary criteria for the grant of the visa. The secondary applicant was in the migration zone at the time of visa application and the decision was not made when the secondary applicant was in immigration clearance or had been refused immigration clearance. Therefore, the Tribunal does have jurisdiction with respect to the second-named applicant under s 338(9) and r.4.02(4)(q).

15. The second-named applicant applied for the visa on the basis that she is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa. However, the primary applicant does not meet the criteria for the Subclass 482 (Temporary Skill Shortage) visa. As the primary applicant does not hold the requisite visa the secondary applicant is therefore not a member of the family unit of a person who is the holder of a Subclass 457 visa or a Subclass 482 visa. Accordingly, cl.482.312 is not met.

    Conclusion

16. The Tribunal does not have jurisdiction in respect of the first-named applicant Travo Edmond George in this matter. The Tribunal affirms the decision not to grant the second-named applicant Shiromiya Mary Jesmin Arul Victor a Temporary Skill Shortage (Class GK) visa.

    DECISION

17. The Tribunal does not have jurisdiction in respect of the first-named applicant in this matter; and

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

    C. Packer
    Member