HASAN (Migration) - [2020] AATA 2859

HASAN (Migration) [2020] AATA 2859 (23 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:
MIR WASITUL HASAN

MOUSUMI RAHMAN
CASE NUMBER:  1905621
HOME AFFAIRS REFERENCE:               BCC2018/2542689
MEMBER:Lilly Mojsin
DATE:23 April 2020
PLACE OF DECISION:  Sydney
DECISION:In regard to the first named applicant the Tribunal does not have jurisdiction
The Tribunal affirms the decision not to grant the second named applicant a Temporary Skill Shortage (Class GK) visa.

Statement made on 23 April 2020 at 04:00 pm

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 February 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 6 July 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 (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.
The delegate refused to grant the visa on the basis that the primary applicant, the first named applicant, did not satisfy the requirements of cl.482.212 of Schedule 2 to the Regulations because the primary applicant did not have an approved nomination in place.
On 29 October 2019 the Tribunal wrote to the applicants and invited the applicants to comment on or respond to information that it considered would, subject to their comments, be the reason, or part of the reason, for affirming the decision under review.
In particular, the Tribunal advised the primary applicant, that he was not identified in an approved nomination that had not ceased at the time of the delegate’s decision to refuse to grant the visa. The Tribunal also advised him that there was not a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Act or of a decision not to approve the nomination under s.140GB of the Act. The Tribunal advised that the relevance of this information was that the Tribunal does not have jurisdiction to review the decision made by the Department refusing the primary applicant a Subclass 482 visa and the decision refusing to grant the Subclass 482 visa would stand.
In regard to the 2^nd named applicant, the Tribunal advised the 2^nd named applicant that she had applied for the visa as a member of the family unit of the 1^st named applicant and had not made any claim to meet the primary criteria. Further one of the requirements for the grant of a Subclass 482 visa, as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 2859
Decision Date: 23 April 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Temporary Skill Shortage (Class GK) visa (Subclass 482). The primary applicant, Mr Hasan, was the first named applicant, and the secondary applicant was a member of his family unit. The dispute concerned whether the Tribunal had jurisdiction to review the decision not to grant the visa to Mr Hasan, and whether the decision to refuse the visa to the secondary applicant should be affirmed.

The Tribunal was required to determine whether it had jurisdiction to consider the appeal lodged by the first named applicant. It also had to determine whether the decision to refuse the visa to the second named applicant, who was a member of the family unit, should be affirmed.

The Tribunal found that it did not have jurisdiction in relation to the first named applicant. For the second named applicant, the Tribunal affirmed the decision not to grant the visa, indicating that an essential requirement for the visa had not been met. The Tribunal's decision was made by Member Lilly Mojsin.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As one of the essential requirements for the visa is not met, the decision under review must be affirmed.DECISION In regard to the first named applicant the Tribunal does not have jurisdiction The Tribunal affirms the decision not to grant the second named applicant a Temporary Skill Shortage (Class GK) visa.Lilly MojsinMember

Ratio Decidendi

Legal Principle Established

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