Herisan (Migration)

[2024] AATA 1614

Herisan (Migration) [2024] AATA 1614 (27 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Herisan

REPRESENTATIVE:  Ms Samantha Vitale (MARN: 0964981)

CASE NUMBER:  2113814

HOME AFFAIRS REFERENCE(S):          BCC2020/2786729

MEMBER:Antonio Dronjic

DATE:27 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 27 May 2024 at 2:53pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Accountant (General) – subject of an approved nomination – non-appearance before the Tribunal – medical certificate – Tribunal declined further adjournment of review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360, 362B
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 6 October 2021 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 9 December 2020. 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. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Accountant.

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 (1) of Schedule 2 to the Regulations because the applicant’s prospective employer, Alpha Global Catering Pty Limited, did not have an approved nomination.

4. The applicant applied for the review of the departments’ decision on 8 October 2021 and with the review application submitted a copy of the primary decision record.

5. On 16 April 2024, the Tribunal wrote to the applicant inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicant’s comment on or response to the following information:

   ·On 9 December 2020, Alpha Global Catering Pty Limited (the nominator) applied to the Department of Home Affairs (the Department) to nominate you for the position of Accountant (General) ANZSCO 221111).

   ·On 6 September 2021, the application for approval of the nominated position made by the nominator was refused by the Department. The nominator applied to the Tribunal for the review of that decision.

   ·On 11 April 2024, the Tribunal affirmed the decision not to approve the nomination application.

   This information, if accepted and relied upon by the Tribunal, would be the reason or
   part of the reason for the Tribunal to affirm the decision made by the Department to
   refuse you the grant of a Subclass 482 visa. This is because one of the criteria
   contained within Subclass 482, namely cl 482.212 (1) requires the visa applicant to
   demonstrate that at the time the Tribunal comes to deciding the application, the
   nomination identified in the application has been approved under section 140GB of the
   Act.

6. On 30 April 2024, the applicant’s representative responded to the Tribunal letter by seeking an additional time because the applicant ‘has become an indispensable staff member of renown Australian company, which is in the process of sponsoring him as accountant’. With this response, the applicant’s representative submitted a copy letter from Boom Logistic dated 26 April 2024 indicating their intention to nominate the applicant for the position within their company.

7. Relying on the authority in MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233, the Tribunal accepts that there is no minimum requirement for a ‘response’ to a s.359A invitation and that any reply directed to the information itself will constitute a response.

8. On 2 May 2024, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a video hearing scheduled for 27 May 2024.

9. On 27 May 2024, the Tribunal received a copy letter from Hola Health dated 26 May 2024, stating that the applicant ‘has a medical condition’ and will be unfit for work from 26 May 2024 to 28 May 2024.

10. On the same day, the Tribunal wrote the following letter to the applicant’s representative:

    The Tribunal refers to your correspondence dated 27 May 2024 seeking an adjournment of the hearing scheduled for 27 May 2024, and attaching a Medical Certificate. The Medical Certificate states that you have a medical condition, and you will be unfit for work from 26 May 2024 to 28 May 2024 inclusive.

    On the basis of the medical evidence currently before the Tribunal, the presiding Member is not prepared to grant an adjournment of the hearing scheduled for today. Having had regard to the limited information contained in the Medical Certificate, the presiding Member is not satisfied that you have demonstrated that you will be unfit to attend a hearing via video link. In particular, the certification dated is only in relation to your incapacity to work and provides no opinion regarding your capacity to participate in a hearing.

    The Tribunal will carefully consider any additional certification by your treating doctor which outlines in detail the nature and history of your medical condition, your future prognosis and the reasons why you would be unable to appear before the Tribunal. In the event that further medical certification is presented, please note that the Tribunal may also wish to contact your treating doctor to discuss with him/her your capacity to give evidence before any future adjournment request will be granted.

    Accordingly, the hearing will proceed as scheduled.

11. On the same day, at 10.16 am, the Tribunal officer attempted to contact both the applicant and his representative by telephone using the numbers provided by the applicant in the review application form. They did not answer those calls.

12. At 11.05 am, the Tribunal’s hearing officer attempted to contact the applicant and his representative. The telephone call was answered by the applicant’s cousin who undertook to inform the applicant of the Tribunal’s attempts to contact him. At 11.26 am, some 26 minutes after the scheduled hearing, the applicant contacted the Tribunal to ‘discuss’ the rescheduling of the hearing.

13. At 11.40 the Tribunal hearing officer contacted the applicant using the recently provided telephone number in attempt to commence the hearing. The applicant refused to attend the hearing claiming that he is not feeling well. As no further medical evidence was provided, the Tribunal informed the applicant that if he does not attend the hearing, the Tribunal may proceed to its decision based on the evidence before it. The applicant decided not to attend the hearing.

14. On the same day, at 12.10, the applicant wrote to the Tribunal to inform ‘that I am feeling sick due to having a bad cold in this wet weather’. He attached the same medical certificate from Hola Health dated 26 May 2024 as previously submitted to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. 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.

17. On 9 December 2020, the applicant was nominated by Alpha Global Catering Pty Limited for the position of Accountant (General) ANZSCO 221111). This application was refused by the Department on 6 September 2021. On 26 September 2021, the applicant sought the review of the Department’s decision and on 11 April 2024, the Tribunal affirmed the decision not to approve the nomination application.

18. In response to the Tribunal’s s.359A letter of 16 April 2024, the applicant’s representative informed the Tribunal that the applicant is seeking sponsorship and nomination from a different company, Boom Logistic, and requested additional time from the Tribunal to complete the sponsorship and nomination process. On 2 May 2024, the Tribunal invited the applicant to attend the video hearing scheduled for 27 May 2024.

19. On the morning of the scheduled hearing, the Tribunal received a letter from Hola Health dated 26 May 2024, stating that the applicant ‘has a medical condition’ and will be unfit for work from 26 May 2024 to 28 May 2024. No explanation was given as to what ‘his medical condition’ is or why is he unable to attend and participate at the video hearing.

20. The Tribunal responded to this letter advising that the hearing will proceed as scheduled (see paragraph 10 of this decision record) and made several attempts to contact the applicant and conduct the hearing. The applicant has chosen not to appear at the hearing.

21. Section 362B of the Act provide that if an applicant has been invited under s 360 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

22. In considering whether to proceed to its decision, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

23. The Tribunal has had regard to the fact that the visa application was refused by the Department on 6 October 2021 because the applicant was unable to meet the cl.482.212 (1) of Schedule 2 to the Regulations. The applicant was aware of the reasons for the delegate’s’ decision for more than 30 months.

24. The Tribunal note that, if the applicant is not granted temporary work visa, he may be required to depart Australia. The applicant is not prevented from re-applying for a temporary visa once he finds new employer willing to sponsor and nominate the applicant for the position within their business.

25. The Tribunal further note that cl. 482.212(1) requires that the nomination identified in the application has been approved under s 140GB; the person who made the nomination was an approved work sponsor at the time the nomination was approved; and the approval of the nomination has not ceased under reg 2.75. In effect, this means the visa application is linked to the one nomination, and this criterion could not be met based on a subsequently lodged and approved nomination.

26. For the reasons stated above the Tribunal has decided not to exercise its discretion to adjourn the review any further and proceed to its decision. 

27. Based on the evidence before it, the Tribunal finds that, at the time of the Tribunal decision, the nomination identified in the application has not been approved under s 140GB of the Act. Accordingly, the Tribunal finds that the applicant does not satisfy cl 482.212 (1) of Schedule 2 to the Regulations.

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

    DECISION

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

    Antonio Dronjic
    Member