GONG (Migration)

[2022] AATA 4934

GONG (Migration) [2022] AATA 4934 (15 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Ms Junli Gong

Mr Jun Tang

REPRESENTATIVE:  Mr Gordon Cheng

CASE NUMBER:  1919297

HOME AFFAIRS REFERENCE(S):          BCC2019/2011737

MEMBER:K. Chapman

DATE:15 December 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 15 December 2022 at 5:25pm

CATCHWORDS 
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Chief Executive or Managing Director – applicant was not the subject of an approved nomination as required – applicant failed to provide requested information – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 2.75, Schedule 2, cl 482.212

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 27 June 2019, to refuse to grant the applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The first named applicant applied for the visa on 19 April 2019, including the second named applicant in the visa application. In the present matter, the first named applicant (hereafter ‘the applicant’) seeks the visa to work in the nominated occupation of Chief Executive or Managing Director (ANZSCO 111111). Her position was nominated by Australia Dionysus Wine 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 case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Chief Executive or Managing Director (ANZSCO 111111).

4. The delegate refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.482.212(1) of Schedule 2 to the Regulations, because she was not the subject of an approved nomination as required. On 16 July 2019, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with her application for review.

5. The applicant appeared by telephone before the Tribunal on 20 October 2022 to give evidence and present arguments. She confirmed she was comfortable participating in the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, with the applicant confirming she understood the interpreting service. The applicant was represented in relation to the review by her barrister (‘the representative’).

6. Following the review hearing, on 30 November 2022, the Tribunal wrote to the applicant pursuant to s.359A of the Act, through the representative, inviting her to provide comments on, or response to, the following information:

   a.“The application for approval of the nominated position made by Australia Dionysus Wine 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 1912680). This means that the nominator’s application for the nominated position has not been approved.”

7. The Tribunal is satisfied that this invitation was properly despatched to the email address of the representative. The due date for response to this invitation was 14 December 2022. No response to the invitation, pursuant to s.359A of the Act, has been received by the Tribunal at the time of this decision.

8. Where the applicant is invited to respond to information in accordance with s.359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(2) of the Act.

9. The Tribunal has carefully considered whether to afford additional time to the applicant to respond to the information in the s.359A invitation, or to provide further material in support of her application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

10. The Tribunal has taken into account that the applicant has been aware since around 27 June 2019 of the reasons for the visa application being refused, and also that the implications of not responding to the information in the invitation from the Tribunal of 30 November 2022 were set out in that correspondence. Additionally, the Tribunal notes that no contact has been made with it by the representative or the applicant since the review hearing on 20 October 2022.

11. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to respond to the s.359A invitation and address the central issues arising in the application for review. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain the applicant’s response to the invitation.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

14. 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.

15. At the review hearing, the applicant advised that she had previously worked for the nominator. Since the application for nomination was refused in 2019, she has been offering ‘advice and instructions’ to the nominator. The applicant also confirmed she is the sister in law of Mr Zeng, who is involved in the management of the nominator’s business.

16. The Tribunal notes that the nomination of the applicant for the position of Chief Executive or Managing Director (ANZSCO 111111) by Australia Dionysus Wine 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.

17. For the reasons expressed above, the Tribunal finds that the requirements for the Subclass 482 visa in the Medium-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.

18. Given that the applicant has not met the requirements for the grant of a Subclass 482 visa and is not the holder of a Subclass 457 or Subclass 482 visa, it follows that the second named applicant does not satisfy the requirements of cl.482.312. The Tribunal so finds.

    decision

19. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    K. Chapman
    Member