Home Plus Stanthorpe Pty Ltd (Migration)

[2023] AATA 118

Home Plus Stanthorpe Pty Ltd (Migration) [2023] AATA 118 (5 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Home Plus Stanthorpe Pty Ltd

VISA APPLICANTS:  Mrs Heejin Kim
Mr Ilteak Choi
Ms Ahmin Choi

REPRESENTATIVE:  Ms Jungmin Lee (MARN: 1279501)

CASE NUMBER:  1916688

HOME AFFAIRS REFERENCE(S):  BCC2019/2367978

MEMBER:Ian Berry

DATE:5 January 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicants’ GK – Temporary Skill Shortage (Class GK) Subclass 482 visas.

Statement made on 05 January 2023 at 9:27am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – subject of approved position nomination – related nomination application refused – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 1, cl 1240(3)(f)(ii), 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 5 June 2019 to refuse to grant the visa applicants a GK – Temporary Skill Shortage (Class GK) Subclass 482 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 3 May 2019. The delegate refused to grant the visa on the basis that clause 1240(3)(f)(ii) of Schedule 1 specifies that an application for a Temporary Skill Shortage (Short Term) visa must be made in the same stream for which the nominated occupation was nominated.  The visa applicant’s visa application was made under the Short Term stream, the criteria for the grant under any of the stream within this visa subclass are not satisfied.  A visa cannot be granted unless the relevant criteria specified in the Act and the Regulations are satisfied.  In this case, the delegate was not satisfied that clause 482.212 of Schedule 2 of the Regulations is satisfied.

Invitation to provide information: s 359(A)

1. On 9 December 2022, because visa applicants’ sponsor and nominator Home Plus Stanthorpe Pty Ltd (the sponsor) had its nomination application refused by the Tribunal on 24 June 2022, that information is relevant to the review as it is a requirement for the grant of a 482 visa for the nomination, in which the visa applicants are identified, to be approved pursuant to clause 482.212(1)(a).  If the Tribunal relied on that information it may be a reason or part of a reason to affirm the delegate’s decision to refuse the visa applicants’ visa application.

2. The visa applicants were invited to give their comments or respond to the relevant information by 23 December 2022.  The visa applicant did not respond.  The visa applicants were advised that if the Tribunal did not receive their comments or responses within the period allowed or by the date stated in that letter namely 23 December 2022, the visa applicants will lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

3. As the visa applicant did not respond by comment or response, they lost the right to a hearing.

4. The review applicant was represented in relation to the review.  The visa applicant did provide to the Tribunal a copy of the delegate’s decision.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the visa applicants have satisfied the criteria relevant to a GK – Temporary Skill Shortage (Class GK) Subclass 482.

2. The visa applicant did not provide enough information of the current and updated position of the visa applicants.  Further, the fact that the nomination application to which the visa applicants were identified as the visa applicants, was refused, then pursuant to clause 482.212, the visa applicants application must be refused.

decision

1. The Tribunal affirms the decision not to grant the visa applicants’ GK – Temporary Skill Shortage (Class GK) Subclass 482 visas.

Ian Berry
Member