Griffiths (Migration)

[2023] AATA 1494

Griffiths (Migration) [2023] AATA 1494 (23 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Paul

William George Griffiths

Mrs Nicole Rita Mcdonagh

CASE NUMBER:  2004998

HOME AFFAIRS REFERENCE(S):          BCC2019/3377882

MEMBER:SM Michael Cooke

DATE:23 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 23 May 2023 at 12:53pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – chef – subject of approved position nomination – no approved nomination in place – no response to tribunal’s invitation to comment or appearance at hearing – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 368
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212(1), 482.312

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 24 February 2020 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 5 July 2019. 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 primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Chef - 351311

3. The delegate in this case refused to grant the visa on the basis that the primary visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

4. The applicants were scheduled to appear before the Tribunal on 23 May 2023 to give evidence and present arguments. The parties did not appear at the scheduled time and no further information has been provided to the Tribunal.

5. The Tribunal finds that the applicants have failed to attend a scheduled hearing before the Tribunal. Pursuant to s.362B of the Act, the Tribunal will (by written statement under section 368) make a decision on the review without taking any further action to allow or enable the applicants to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicants are the subject of an approved nomination.

   Requirement for an approved nomination

8. 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.

9. The applicants were advised by the Department that their prospective sponsoring employer LLOYD MACEY ENTERPRISES PTY LTD did not have an approved nomination in place for them. The first named applicant was invited to comment or withdraw their application in writing and was afforded the prescribed period of to do so. No response was received from the applicant.

10. The applicants have not provided any information to the Tribunal subsequently indicating approval of a nomination.

11. The Tribunal finds that the first named applicant is not the subject of an approved nomination.

12. For these reasons the requirements of cl 482.212(1) are not met.

13. 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.

14. Consequently, the second named applicant does not meet subclause 482.312(1), and clause 482.312 is not met.

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

    DECISION

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

    Michael Cooke
    Senior Member