Hassett (Migration)

[2023] AATA 3341

Hassett (Migration) [2023] AATA 3341 (6 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shane Michael Hassett

REPRESENTATIVE:  Mr Feng Chen (MARN 1577771)

CASE NUMBER:  1931424

HOME AFFAIRS REFERENCE(S):          BCC2019/4049883

MEMBER:Peter Papadopoulos

DATE:6 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 06 September 2023 at 9:55am

CATCHWORDS 
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Carpenter – applicant is not the subject of an approved nomination– nomination identified in the visa application has not been approved – 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 4 November 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 August 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 within 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 Carpenter (ANZSCO 331212).

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 in Part 482 of Schedule 2 to the Regulations because prospective sponsoring employer WAS Property Services (WA) Pty Ltd (WAS Property Services) did not have an approved nomination in place.

4. The applicant was represented in relation to the review.

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

   The Tribunal’s section 359A invitation

6. On 22 August 2023, the Tribunal wrote to the applicant under s 359A of the Act inviting them to comment on or respond to information which the Tribunal considers would, subject to their comment or response, be the reason or a part of the reason, for affirming the decision under review. This information was particularised in the following terms:

   ·On 2 October 2019, the nomination made by WAS Property Services in relation to you was refused by the Department.

   ·WAS Property Services Pty Ltd applied for review of the nomination refusal, however, on 19 December 2022, the Tribunal affirmed the Department’s decision.

7. The Tribunal also noted that this information was relevant to the review because it appeared that the applicant did not have an approved nomination made by WAS Property Services. Additionally, the Tribunal stated that if it relies on this information in making its decision, it may find that the applicant does not satisfy cl 482.212 in Part 482 of Schedule 2 of the Regulations and, accordingly, the Tribunal would affirm the delegate’s decision to refuse the applicant’s Subclass 482 visa.

8. The applicant was invited to comment on or respond to this information by 5 September 2023.  In its letter, the Tribunal advised that if a comment or response was not provided in writing by this date or if a request had not been made for an extension of time in which to provide this information, the Tribunal may make a decision on the review without taking further action to obtain the information.  Further, the Tribunal noted that the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. As the applicant did not respond to the Tribunal s 359A invitation letter, and has similarly failed to engage with the Tribunal since the review application as made in November 2019, the Tribunal has determined that the applicant has lost their right to appear before it to give evidence and present arguments.  On this basis, the Tribunal has proceeded to make a decision based upon the material before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the position to which the application relates is subject of an approved nomination.

    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 has not ceased.

12. Based upon its consideration of the available material, the nomination identified in the visa application has not been approved under s 140GB of the Act.  As the relevant nomination has not been approved, it follows that that the position to which the application relates is not the subject of an approved nomination.

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

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

    DECISION

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

    Peter Papadopoulos
    Member