Gibson (Migration)

[2024] AATA 179

Gibson (Migration) [2024] AATA 179 (29 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lee Gary Gibson

CASE NUMBER:  2102061

HOME AFFAIRS REFERENCE(S):          BCC2020/2588446

MEMBER:K. Chapman

DATE:29 January 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 29 January 2024 at 12:37pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Production Manager (Manufacturing) – no approved nomination – applicant left Australia – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 482.212

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 11 February 2021, to refuse to grant the applicant a Temporary Skill Shortage (Class GK) visa, pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant, Mr Lee Gibson, applied for the visa on 5 November 2020. In the present matter, the applicant seeks the visa to work in the nominated occupation of Production Manager (Manufacturing) (ANZSCO 133512). His position was nominated by Blue Glass Pebble Company Pty Ltd (‘the nominator’).

3. At the time of application, 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 matter, the applicant is seeking the visa in the Short-term stream.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations, because he was not the subject of an approved nomination as required. On 22 February 2021, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with his application for review.

5. On 8 November 2023, the Tribunal invited the applicant to attend a hearing by video means (MS Teams) scheduled for 3:30pm on 5 December 2023. The applicant replied, on 15 November 2023, advising the Tribunal that he declined the offer to attend the hearing. The Tribunal notes that the applicant was most courteous in his correspondence. Accordingly, having regard to this correspondence, the Tribunal cancelled the scheduled hearing.

6. On 24 January 2024, the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting him to provide comments on, or response to, the following information:

   a.“The application for approval of the nominated position made by Blue Glass Pebble Company Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it was recently affirmed by the Tribunal (see AAT matter 2100607). This means that the nominator’s application for the nominated position has not been approved.”

7. The applicant responded to the Tribunal’s invitation, again with courtesy, on 24 January 2024. In his response he indicated that he had already departed Australia and did not wish to proceed with his visa application. The Tribunal has carefully considered the applicant’s response.

8. Having regard to the applicant’s response to the s 359A invitation, in combination with there being no prospects of success for this review application without an approved nomination, the Tribunal has decided to make its decision without further ado.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present review is whether the applicant meets the requirements of cl 482.212(1).

    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 it has not ceased.

12. The Tribunal notes that the nomination of the applicant for the position of Production Manager (Manufacturing) (ANZSCO 133512) by Blue Glass Pebble Company Pty Ltd (‘the nominator’) has not been approved. Accordingly, the Tribunal finds that there is not an approved nomination of an occupation relating to the applicant, by a standard business sponsor, that has not ceased. Therefore, the requirements of cl 482.212(1) are not met.

13. For the reasons expressed above, the Tribunal finds that the requirements for the Subclass 482 visa in the Short-term stream have not been satisfied. No claims have been made in respect of the other streams for the visa and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams.

14. As one of the essential requirements for the Subclass 482 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.

    K. Chapman
    Member