Hong (Migration) - [2024] ARTA 464

HONG (MIGRATION) [2024] ARTA 464 (23 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Applicants:Miss Myongja Hong and Miss Jihye Hong
Respondent:  Minister for Home Affairs
Tribunal Numbers:  2112486 and 2112487

Tribunal:Susan Hoffman
Place:Perth
Date: 23 October 2024
Decision:The Tribunal affirms the decisions not to grant the applicants Temporary Skill Shortage (Class GK) visas.

Statement made on 23 October 2024 at 9:49am
CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Short-term stream – Massage Therapist – no approved nomination in place for either of the applicant – was not the subject of an approved nomination as required – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.212
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicants lodged their applications for review with the with the Administrative Appeals Tribunal (AAT) on 16 September 2021.
From 14 October 2024, the AAT was replaced by the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
These are applications for review of decisions made by delegates of the Minister for Home Affairs on 1 September 2021 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).
Miss Jihye Hong (Miss J Hong) and Miss Myongia Hong (Miss M Hong) are sisters. Miss J Hong applied for the visa on 21 May 2021 and Miss M Hong applied for the visa on 24 May 2021.
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 applicants are seeking their visas in the Short-term stream to work in the nominated occupation of Massage Therapist (ANZSCO 411611).
The delegates in the sisters’ cases refused to grant the visas on the basis that they did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because the prospective nominating employer, Gold Coast Thai Massage Pty Ltd (GCTM), did not have an approved nomination in place. That was the situation for both applicants.
The Tribunal had invited the applicants to hearings at 9:30 am AWST and 11:00 am AWST on 10 October 2024. Each accepted the invitation and advised that they wanted their sister (the other primary applicant) to attend as a witness. They both attended the hearing listed for 9:30 am. As they had each applied for a Subclass 482 visa and their prospective nominating employer was Gold Coast Thai Massage Pty Ltd, the Tribunal sought their views on combining the two hearings. They were each agreeable to this, and therefore what had been listed as two separate hearings proceeded as a combined hearing.
The applicants appeared before the Tribunal on 10 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.
The applicants were not represented during the hearing.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether either or both applicants had an approved nomination in place in relation to their applications for Subclass 482 visas.
Requirement for an approved nomination.
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.
According to the delegates’ decisions, GCTM did not have an approved nomination in place in relation to either applicant.
The Tribunal asked the applicants if they understood that their vias applications had been refused because GCTM did not have an approved nomination in place for them. They each responded “Yes”.
Miss J Hong said they worked with their migration agent as well as their employer, GCTM, when preparing their visa application. The migration agent explained to them that GCTM has met all the criteria but the government notified them that their visa application was not successful. She said their plan was to explain that GCTM was a legitimate business.
Miss J Hong said that they were going to work for GCTM for a long time but the business owner proposed a change to their labour contract without going through their migration agent. They tried to negotiate with their employer which was not successful, so they decided to work for them for one year, which they thought was the minimum requirement according to the business owner and the migration agent. After one year had passed, they decided to look for a new sponsor.
The Tribunal asked the applicants if they did look for a new sponsor. Miss J Hong said that they were looking for a new sponsor, but they decided to open their own business. They started their own business offering remedial massage.
Miss J Hong said that they were both on bridging visas. She confirmed that GCTM was no longer sponsoring either applicant for a visa.
Miss J Hong then said that GCTM offered legitimate remedial massage and they could not understand why GCTM’s nomination application had been refused. They suspected it might be to do with GCTM’s website being quite outdated and not much mention of remedial massage business, and that might create suspicion in the mind of the government. They were going to lodge a document to demonstrate the legitimacy of GCTM but then GCTM wanted to change their employment contacts, so they decided to leave that employer.
Miss M Hong said that GCTM not only provided remedial massage but also traditional Thai massage which was included in the list of eligible occupations for visas. So she did not understand why the nomination was refused. This was why they decided to appeal the decisions to refuse their visa applications.
The Tribunal explained that the visa applications were linked to GCTM as the sponsoring employer and if GCTM was no longer sponsoring them and was not approved to sponsor them, then it was not possible for the Tribunal to make a decision favourable to the applicants.
Miss M Hong said that GCTM had offered to sponsor them in the first place, and they worked with the business and the migration agent. But in the end their visa application was refused because GCTM’s nomination application was refused. Miss M Hong asked whether GCTM received approval as a business sponsor.
The Tribunal said that it had the same information as the applicants about GCTM which was the information in the delegates’ decisions to refuse the visa applications. Those decisions said that GCTM did not have an approved nomination in place for either or both of the applicants.
The Tribunal asked the applicants if they had spoken to a migration agent about their situation, and they said they had.
Miss M Hong said that their employer was going sponsor them but then changed their employment contract, so they started their own business. They have been running their own business for about two years. They have received 5-star rating on google and have had 400 customers. They pay tax and contribute to the society and community socially and economically. They both want to live in Australia on a permanent basis and have a large existing customer base. They love their work with a passion. Their business in called Metime Wellness and they provide remedial massage and therapy to their customers so the customers can relax and improve their wellbeing.
Miss M Hong said that they looked for a new sponsor and a regular customer offered to be a sponsor so they could continue their business and offer a quality service. His plan was to buy their business first and sponsor them, and once visas were granted to them, then he would return their business to them. However, he withdrew the offer as their business was too new.
Miss M Hong said that now they plan to look for a new sponsor but they do not know how long that will take. She said they did not know how long they could stay in the country but they need time to look for a new sponsor, and they cannot close their business suddenly as they have a large customer base. She requested that the Tribunal give them time to stay in Australia.
The Tribunal said that it was required to make its decisions promptly and could not delay doing so in the manner requested by Miss M Hong. The Tribunal said that it expected to make its decision within two to three weeks of the hearing but could not guarantee that timeframe.
The Tribunal also explained that with regard to the case under review, the Tribunal had no discretion that it could exercise: either the person met the criteria or not.
Miss M Hong said she had two questions. She said that another business offered to sponsor them before GCTM but the owner of GCTM insisted that they stay working for her and she would sponsor them. They worked with the migration agent who said the business was large enough, and a legitimate business, and that traditional Thai massage was on the skilled shortage list so they were convinced that GCTM would be approved as a sponsor for them and were shocked when the nomination application was refused.
Miss M Hong asked why GCTM’s nomination application was refused. The Tribunal said it had not seen the delegate’s decision to refuse the nomination and did not know why it had been refused.
Miss M Hong then asked how long they would be allowed to stay in Australia after the Tribunal made its decision. The Tribunal said that they should check that with the Department and/or with a migration agent.
Miss J Hong said that they had a reference letter from GCTM which said how many hours they had worked for them and that they had worked for GCTM for over a year. She asked if submitting that letter would make any difference to the decision.
The Tribunal advised that it would not because the deciding factor was whether GCTM had an approved nomination in place in relation to each applicant. There was no approved nomination in place for either of them.
Miss J Hong said that she understood the role of the Tribunal. She said that she and her sister were passionate about their work and that hundreds of their customers expressed their wish that the applicants stayed and would support them in the future. She asked for more time to seek a new sponsor. The Tribunal had said earlier in the hearing that it was required to make its decision promptly.
In light of the foregoing, the Tribunal finds that the requirements of cl 482.212(1) are not met.
As one of the essential requirements for the visas is not met, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decisions not to grant the applicant Temporary Skill Shortage (Class GK) visas.
Date of hearing: 10 October 2024
Representative for the Applicant: Not applicable