HONG (Migration)

[2022] AATA 1476

HONG (Migration) [2022] AATA 1476 (28 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Jeoneui HONG

Ms KA YOUNG YOO

REPRESENTATIVE:  Mr Young Rim Choi (MARN: 1466197)

CASE NUMBER:  1900377

HOME AFFAIRS REFERENCE(S):          BCC2018/3598731

MEMBER:Namoi Dougall

DATE:28 April 2022

PLACE OF DECISION:  Sydney

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

Statement made on 28 April 2022 at 2:03pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – carpenter – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212(1)(a), 482.312

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 21 December 2018 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 21 September 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 (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 primary visa applicant (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 Mr Jeoneui Hong (the primary applicant) did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because the primary applicant was not the subject of an approved nomination as the business nomination application of the primary applicant’s business sponsor, Hans Project Pty Ltd (the nominating business) had been refused by the Department.

4. The primary applicant appeared before the Tribunal on 17 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from a director of the nominating business, Mr Woo Park. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicants were represented in relation to the review.

6. On 8 April 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting the applicant to provide comments in writing on information that it considered would be part of the reason for affirming the decision under review. The relevant information before the Tribunal was that the nomination application made by the nominating business was, on 22 November 2018 was refused by the Department and the Tribunal affirmed the Department’s decision on 7 April 2022.

7. The Tribunal’s letter then explained that if the Tribunal relied on the above information in making its decision, then it may find that the nomination of an occupation in relation to the applicant has not been approved. Consequently, the applicant would not meet the requirements of cl.482.212(1)(a) and the decision under review would be affirmed. No response was received by the Tribunal to its letter of 8 April 2022.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the primary visa applicant meets the requirements of cl 482.212(1)(a).

   Requirement for an approved nomination

10. 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.

11. In this case, the applicants applied for the visas on the basis of a nomination of an occupation made by the nominating business. The nomination was refused on 22 November 2018 and the nominating business applied to the Tribunal for review of that decision. On 7 April 2022, the Tribunal affirmed the delegates decision not to approve the nominating business’s application.

12. Further, the Tribunal wrote to the applicants pursuant to s.359(A) on 8 April 2022 in which the applicants were put on notice that they may not satisfy the requirements in cl.482.212(1)(a). The applicants did not respond to the Tribunal’s letter on 8 April 2022.

13. The evidence before the Tribunal is that the nomination in relation to the primary applicant in support of the Subclass 482 visa has been refused. That decision was reviewed by the Tribunal and the Tribunal finalised the Department’s decision to not approve the nominating business’s nomination application as a withdrawal, meaning that the decision refusing the nomination stands. As the applicant is not the subject of an approved nomination that can support his application for a Subclass 482 visa, it follows that the applicant does not satisfy the requirement in cl.482.212(1)(a).

14. The remaining applicant relies on her status as a member of the family unit of the primary applicant. As the primary applicant does not satisfied primary criteria for the grant of a Subclass 482 visa, the remaining applicant does not satisfy cl.482.312 and there is no evidence before the Tribunal that she meets the primary criteria in her own right.

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

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Namoi Dougall
    Member