Indian Wave Pty Ltd (Migration) - [2023] AATA 239

Indian Wave Pty Ltd (Migration) [2023] AATA 239 (20 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEWAPPLICANT:  Indian Wave Pty Ltd
VISA APPLICANT:  Mr Bhushan Chettri
REPRESENTATIVE:  Mr Josh Prasad Thalluri (MARN: 0210891)
CASE NUMBER:  1935250
HOME AFFAIRS REFERENCE(S):         BCC2019/5427770
MEMBER:Alison Mercer
DATE:20 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Skill Shortage (Class GK) visa.

Statement made on 20 January 2023 at 1:07pm
CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – cook – genuine temporary entrant – long residence, multiple temporary visas and courses and two short returns – sick grandmother in Australia, parents’ visits and COVID restrictions – only son’s responsibility to look after parents – previous application for permanent visa refused and application for judicial review in progress – employer’s need for applicant’s services in current skills shortage – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.222(a)
CASES
Durzi v MIMIA [2006] FCA 1767
Hneidi v MIAC [2009] FCA 983
Moller v MIAC [2007] FMCA 168
Qiao v MIAC [2008] FMCA 380
Re Drake and MIEA (No 2) (1979) 2 ALD 634
Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 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).
The applicant applied for the visa on 29 October 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 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 applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Cook.
The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.222 of Schedule 2 to the Regulations, which required that he had a genuine intention to reside in Australia temporarily only. The delegate noted that the applicant had been residing in Australia as the holder of temporary visas since June 2008, a period of over 11 years during which time he had only made 2 short trips outside Australia. The delegate noted that the applicant had also unsuccessfully applied for permanent residence and did not accept the applicant’s assertion that he wished to return to India at the end of the period of the subclass 482 visa he was now seeking in order to open his own restaurant.
The Tribunal received a review application on 13 December 2019 made on behalf of the applicant by a registered migration agent.
On 11 February 2020, the Tribunal wrote to the agent to advise that as the applicant was not in Australia at the time he lodged the visa application with the Department of Home Affairs on 29 October 2019, it appeared that it was the sponsor or nominator who was entitled to apply for review to the Tribunal in relation to the refusal decision and not the applicant. The Tribunal noted that in the normal course of events, the prescribed period to lodge a valid application would have passed; however, there appeared to be an error in the notification letter of the Department of Home Affairs and therefore until re-notified and a further prescribed period lapses, it appeared that the applicant had not been validly notified. The Tribunal advised that therefore, it appeared that the applicant was still able to lodge an amended M1 Application for review form to the Tribunal with the sponsor’s details as the review applicant.
On 17 February 2020, the Tribunal received an amended review application listing the review applicant as the applicant’s nominating Australian employer, Indian Wave Pty Ltd, as the review applicant.
On 3 June 2020, the Tribunal received the following documents:
·copy of the delegate’s decision;
·Department nomination approval dated 8 August 2019 for Indian Wave Pty Ltd for the applicant as nominee;
·letter dated 17 February 2014 from Le Pine Funerals to Mr Prakash Lama, relating to funeral arrangements for Chandra Lama;
·letter from Haematology and Oncology Unit of Box Hill Hospital dated 19 January 2014 noting that Mrs Chandra Lama is under care for ‘a form of skin cancer with quite extensive metastatic spread,’ and asking that priority be given to grant visas for her daughters, one of whom is Meenu Chettri, to be able to see their mother;
·undated letter from Mr Prem Chauan, owner of Indian Wave Pty Ltd (trading as Great Indian Wave) asserting the genuine need for the nominee to take over as Cook in the business so that Mr Chauan can attend to the running of the business and spend more time with his family; and
·further detailed and undated statement from Mr Chauan providing further information to the Department regarding the business’ genuine need for the nominee to work as a Cook, its operations and its financial capacity to employ the nominee on a full time basis; and
·agent’s legal submissions dated 3 June 2020.
The submissions by the applicant’s agent were as follows:
…
This is with reference to my client’s refusal letter dated on 25th November 2019.
I state that, the department had refused my client’s application for 482 visas on the following basis as mentioned in the Decision record. A copy of the same is enclosed for your kind reference as E-1.
Decision record from Department of Home Affairs states as below:
“I have given careful consideration to the applicant's GTE submission and all supporting documents, which states the applicant's intention and long-term career plan is to open their own restaurant in their home country - India. I have also considered the applicant’s immigration history.
An analysis of the applicant's immigration history indicates that:
✃ the applicant has established ongoing residence in Australia; and
✃ the applicant appears to be using the TSS and/or other visa programs to maintain
ongoing residence in Australia.
I note that the applicant has been staying in Australia since their arrival on 29 June 2008 except for making two short trips of 22 days overseas. I also note that the applicant did not leave onshore for a continuous period of over 10 years. This cannot be considered as the
reasonable behaviour of a genuine temporary resident.
In the GTE submission the applicant stated “I arrived in Australia in 2009 on a student visa,
to follow courses in Commercial cookery and hospitality management.” This statement is
factually incorrect as the applicant initially arrived in Australia on 29 June 2008 and enrolled
to study a Diploma of Accounting, for which the visa was granted. The applicant studied for
this course for a few months and switched his study to VET courses in other fields such as
hospitality, management and business. I am not sure to what end, the applicant provided this
incorrect information.
It appears that the applicant has been using other temporary visa programs as stated above
to maintain ongoing residence in Australia. From the above visa history, the applicant has
been switching between various temporary visa types and switching courses and education
providers.
The applicant further stated “My goals were to obtain knowledge, training, practice and
experience before opening my own restaurant in a tourist location in India.”
As per the attached form 1221, the applicant has been employed as a Cook in Indian
Restaurants since August 2010. It is reasonable to believe that in the last 9 years, the
applicant has achieved the desired skill as these Indian restaurants basically perform the
same culinary and menu. Therefore, I give less weight to the argument that the applicant
needs to continue working in the same type of Indian restaurant to enhance his skill to
enable him to open own business in India. The applicant has not provided any evidence such as detail business plan or funding sources to achieve this goal either. Therefore, I do not see much merit in this claim.
The applicant has not provided any substantial evidence of close ties to their home country
and has been unable to demonstrate substantial economic ties to their home country which
diminishes their incentive to return to India. Furthermore, given the disparity in the economic
circumstances between India and Australia, I cannot be satisfied that the applicant has
significant incentive to return to India. Departmental records show that since the applicant's
arrival on 29 June 2008, on a student visa subclass TU-572, the applicant had spent just
22 days on 2 short trips outside Australia. In addition, the applicant has not demonstrated
ties to their home country that may provide a strong incentive for them to return there on
the cessation of the temporary visa. The applicant is unmarried with no dependant family
members in their home country. While the applicant may have parents/ siblings residing
outside Australia, however, the applicant has not returned to his home country to visit them
on a reasonably regular basis, as may be expected. I therefore, have serious concerns that
the applicant may not have sufficient incentive to return to his home country and I believe the
applicant’s present circumstances in Australia present a strong incentive for them to remain in Australia.
From the immigration history, it is evident that the applicant has been pursuing all options
to remain permanently in Australia, despite the assertion that they plan to return to India
and work in a 5-star multi cuisine restaurant with the experience that has been gathered in
Australia or to open their own restaurant in India.
Having considered the relevant legislation and all of the evidence before me, I find that the
applicant does not meet the requirements of paragraph 482.222(a) and clause 482.222 is not
met.
Decision
As clause 482.222 is not met by the applicant, I find the primary criteria for the grant of a
Temporary Skill Shortage visa are not met by the applicant.
As one primary criterion was not satisfied, I have not assessed the application against any
other required criteria.
I have also assessed the ability of the applicant to meet the secondary criteria for the
Temporary Skill Shortage visa.
One of these secondary criteria is specified in clause 482.312 of Schedule 2 of the Migration
Regulations. Clause 482.312 requires that the applicant is a member of the family unit of a
person (the primary applicant) who, having satisfied the primary criteria, is the holder of a
Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage)
visa.
As there are no secondary applicants included in the application who hold a Subclass 457
(Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa having
met the primary criteria, I am not satisfied that the applicant meets clause 482.312 for the
grant of a Temporary Skill Shortage visa.
Therefore, I refuse the application by Bhushan CHETTRI for a Temporary Skill Shortage
visa. ”
I state that, all the allegations stated by the DIBP are not true and correct to the best of my knowledge and belief.
The Department has considered the applicant’s immigration history, to conclude that the applicant had not left Australia except for two short trips (22 days) and that he had not provided any substantial evidence of close ties to their home country.
It is absolutely false to mention that he did not have family ties. I state that, the applicant has strong family ties in Australia. His only sibling, sister is living in Australia along with his several uncles and aunties.
His Grandmother was living in Australia. He was very attached and close with his grandmother, who was suffering from a form of skin cancer. A medical certificate issued by Box Hill Hospital is attached herewith for your reference (E-2). As he was very close with his Grandmother, he was worried to leave her. The doctors had given up on her on the basis that she might pass away anytime. Unfortunately, she passed away due to the cancer. A medical certificate issued by the medical practitioner and a detailed copy of the funeral expenses provided by the Funeral home is attached herewith for your reference (E-3).
I wish to state that, the reason for the applicant to not to visit his parents back in India was purely as his mother visited him in Australia. His mother and one aunt arrived in Australia on 4th February 2014 when his grandmother passed away and stayed for 2 months. His mother continued to visit him again in Australia on 31st July 2015 and stayed for 6 months and she is planning to visit next year and stay for a period of one year. When his parents could not visit him in Australia, he went to back for two short visits, which has been considered by the case officer.
I state that, it is not the case that the applicant did not exhibit any ties to his home country. There was no necessity for him to visit his family again in India, when they have spent a lot of time in Australia and he did not feel that he should leave his severely sick grandmother. It has always been either the visa applicant visits their parents, or the parents come to visit him. Hence, the allegations made by the department officer is inconsiderate and unjustified. Based on the above evidence the visa applicant has strong ties to his family.
Hence, the ground for which the application has been refused is against the principles of natural justice. It is absolutely baseless to conclude that there is no substantial evidence of close ties to his home country and that the applicant does not exhibit any significant incentive to return to India. I wish to state that the case officer instead of asking for more clarification as principal of natural justice, refused the application in haste based on a rushed decision.
In the decision record the case officer stated;
In the GTE submission the applicant stated “I arrived in Australia in 2009 on a student visa,
to follow courses in Commercial cookery and hospitality management.” This statement is
factually incorrect as the applicant initially arrived in Australia on 29 June 2008 and enrolled
to study a Diploma of Accounting, for which the visa was granted. The applicant studied for
this course for a few months and switched his study to VET courses in other fields such as
hospitality, management and business. I am not sure to what end, the applicant provided this
incorrect information
I wish to state that, the applicant did not provide incorrect information intentionally. It is purely due to oversight and was not provided to mislead the department. The information in the GTE was provided on the base that the applicant is continuing to work as a cook.
Furthermore, the decision record stated;
The applicant further stated “My goals were to obtain knowledge, training, practice and experience before opening my own restaurant in a tourist location in India.”
As per the attached form 1221, the applicant has been employed as a Cook in Indian
Restaurants since August 2010. It is reasonable to believe that in the last 9 years, the
applicant has achieved the desired skill as these Indian restaurants basically perform the
same culinary and menu. Therefore, I give less weight to the argument that the applicant
needs to continue working in the same type of Indian restaurant to enhance his skill to
enable him to open own business in India. The applicant has not provided any evidence such as detail business plan or funding sources to achieve this goal either. Therefore, I do not see much merit in this claim
As mentioned by the case officer, the applicant has been a cook for 9 years. Hence, he is a very experienced and skilled professional. The sponsor for the applicant has been devastated and disappointed at his decision to leave the restaurant, as he contributed to financial success of the restaurant vastly. Since the employer needed the applicant to be working at the restaurant desperately due to his highly skills and expertise, the applicant was forced to stay behind. Due to the same reason the nomination for the applicant has also been approved. The refusal of the visa application has put the applicant to untold hardships and stress to the employer in losing the benefits and financial loss for no fault of their own.
I state that, the application has been refused on flimsy grounds and based on a rush decision to put stress and strain for no purpose.
The case officer’s refusal is unjustified, and I request the department to look in the matter and review it and pass orders in favour of the applicant so that the employer can be beneficial at the applicant’s service.
I wish to state that the company is desperate in need of the applicant & his skills are very much being utilized.
So therefore, I kindly request you to look into the facts in detail & please set aside the decision made by the department in the interest of justice.
Enclosed list of documents:
E-1 Decision record
E-2 Medical certificates for the applicant’s grandmother
E-3 Funeral expenses
E-4 Response to nomination refusal and nomination approval
E-5 Letter from Owner
…
On 17 November 2022, the Tribunal wrote to the Mr Chauan of the review applicant via the agent to invite him to attend a hearing to be conducted by videoconference on 9 December 2022. At the agent’s request, this hearing was rescheduled to 2 December 2022, on the basis that the agent was departing Australia on 7 December 2022 for several months.
On 25 November 2022, the Tribunal received the following additional material from the review applicant’s agent:
- statutory declaration dated 24 November 2022 by Mr Chauhan
·copy of liquor licence for the Great Indian Wave restaurant;
·copy of food permit for the Great Indian Wave restaurant;
·culinary awards and achievements received by Mr Chauhan; and
·various media reports about the skilled worker shortage in the hospitality industry, 2022, including some Australian restaurants needing to recruit staff from overseas.
In his statutory declaration, Mr Chauan makes the following points:
…
I, Prem Chauhan, the Director of "The Great Indian Wave" Restaurant located in 144 Boronia Road, Boronia Vic 3155 hereby state that,
I am the Director of "The Great Indian Wave" Restaurant. I am in the hospitality industry for the last 36 years and I am also an Executive Chef. I was awarded bronze medal at the National Culinary Arts Exhibition & Contest 1990, New Delhi. Awards and achievements are enclosed for your reference.
I have sponsored Mr. Bhushan as a Cook for my restaurant, the matter which is before this tribunal.
I strongly state that, the position of Cook is still vacant as on date. I am desperately waiting for the visa approval of Mr. Bhushan Chettri. I made an enormous effort and money spent for the process of this visa application. I had put my all efforts to find a Cook but in vain.
I state that during pandemic of Covid -19, during which most of the staff left, leaving me alone.
I state that, I have been running from pillar to post to manage my restaurant as I have to prepare food and order ingredients for the restaurant and do other administrative works single handily. It has become stressful for me handling all the activities alone.
I am loosing business due to the above mentioned. I have stopped doing lunches because I don't have a full time Cook for which I am desperately waiting for Mr. Bhushan's visa approval.
I have not been able to take most of the bulk orders, caterings because of this reason. I am in desperate need of a skilled cook like Bhushan Chettri who has got all skills and expertise which I am desperately waiting for.
I state that, my wife is also helping me in the business on part time basis. She has severe health issues due to which she is unable to work full-time. Moreover, I have two minor daughters to be attended to and she can't dedicate full time to my business.
As the sole Chef, I am unable to cook bulk meal orders, resulting in loss revenue. I get frustrated when orders are coming and have to decline due to short of staff affecting both my revenue and reputation. If I am unable to get the approval of the Cook, there is a possibility which would impact my business adversely and I will be forced to close down the business which is my dream project.
The work pressure has taken a toll on my personal life too, where I am unable to devote quality time with my family, leading to frequent conflicts with my family members.
My restaurant has a dining capacity of 65, offering silver services with wine and dine facilities. I am losing considerable amount of business opportunities as I am unable to take up large orders due to a shortage of staff. I am also a specialist in marriage and party orders; but unable to accept any bulk orders currently. My restaurant has earned a rating review from the web Menulog 5.2/6 Zomato 3.7/5 Facebook 4.4/5.
The applicant is a very active and highly skilled cook and has good experience in both tandoor and curries and his signature dish is Dum Biryani, which is much in demand and very few people make this dish with perfection. He is very responsible and committed person and efficient in managing the kitchen activities.
I state that if a Visa is granted to the applicant, there will be a huge increase in turnover. I am solely dependent on Mr. Bhushan in this given scenario.
It can be observed that the department acted hastily without the use of the application of mind has deliberately refused the visa application.
I further request the Honourable member to please look into the facts the given present situation of shortage of skills due to which most of the businesses are making loss furthermore closing down their business no fault of their own.
I would like to draw your attention to the media reports, publications and few has been presented for your consideration, which clearly shows the employers are running from pillar to post and requesting the Honourable member to set aside the decision of the department.
I wish to state the I spent enormous time and money for this process of this visa application which took herculean task being the soul [sic] chef in the business.
Therefore, I humbly request you in the interest of justice to set aside the decision of the department.
…

Mr Prem Chauhan of the review applicant, and Mr Bhushan Chettri, the visa applicant, appeared before the Tribunal on 2 December 2022 to give evidence and present arguments. The Tribunal also received oral submissions from the review and visa applicants’ agent.
The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the review and visa applicants, and the Presiding Member. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the review and visa applicants were given a fair opportunity to give evidence and present arguments.
On the morning of the hearing, the Tribunal received the following written statement from the visa applicant:
…
I, Bhushan Chettri would like to state that I have a genuine temporarily only as intention to reside in Australia stated the below;
I state that, I am the only son, and my parents want me to return to India. I have to look after my parents it's my according to our culture and not only the culture because they are my parents and it’s my duty and obligation to look after my parents as they are aged.
I wish since to state then that I have been overseas twice, and my parents had come twice to Australia and since then there was a lockdown due to Pandemic and I could not travel to India.
I intend to open my own restaurant when I return to India, and I have more than 5 years' experience as a Cook.
The equivalent Indian government to AUD is offering seed money/new enterprise funds to start business which $50000.00 without collateral security.
I state that I hail from Kolkata. Kolkata is a foody country and having festivals and celebrations in large way. People have the tradition to eat food from outside. We have major festivals like Durga pooja which runs for 10 days and restaurants in India do a good business and people from all over the country of India all the way to participate in this holy festival.
I state that my employer has insisted me to be patient as such the process of the visa has taken enormous time. He also stated that he is solely banking on me as such he has tried many and they had no commitment for work.
I state that I am solely in Australia because of my employer's insistence as such he has spent huge money invested to his business.
I state that I have been offered many jobs from many restaurants and I declined as I have committed to my service to Great Indian Waves.
I state that my stay in Australia is purely temporarily due to employment.
Therefore I humbly pray to you in the interest of justice to look into the above as stated.
…
The visa applicant confirmed that since the Department’s decision in November 2019, he had not left Australia. The last time he departed Australia was in October 2019 to lodge the subclass 482 visa application which is currently under review by the Tribunal. The visa applicant confirmed the immigration history set out in the Department’s decision. He noted that during the COVID19 pandemic throughout 2020 and 2021, he was unable to travel home to India, and his family there were unable to visit him in Australia. The visa applicant confirmed that his mother, Meenu, last visited him in Australia about 4 years ago. She came twice in the same year, once with one of the applicant’s aunts, and once on her own. She stayed several months on each occasion.
In response to the Tribunal’s query, the visa applicant confirmed that he has 1 sibling, his sister Sashi, who is an Australian citizen. She is married and has a 2 year old daughter. The visa applicant also has a number of cousins in Australia to whom he is close but who do not physically live close to him. The visa applicant told the Tribunal that his parents and 5 aunts and various cousins are in India. His parents live in Kolkata. His mother is a housewife and his father is a transport supervisor, who is expected to retire in the next 6 years or so. The visa applicant reiterated that it is culturally expected that he will return to India to look after his parents in their old age, as his sister is expected to perform that role for her in-laws, not her parents. The visa applicant said that he took this responsibility seriously and this was one of the major reasons that he would return to India after any subclass 482 visa expired.
The visa applicant said that he was pursuing the current subclass 482 visa so he could continue to work for Mr Chauhan for a further period, who had had great difficulty recruiting staff during the pandemic period. The visa applicant said that he felt very loyal to Mr Chauhan, who was reliant on the applicant for the restaurant to operate at the moment, and who had supported the applicant throughout the pandemic with food on a daily basis when the restaurant was not permitted to operate due to the prolonged lockdowns in Victoria. The visa applicant said that his intention was to repay Mr Chauhan’s loyalty to him by working in the business for a couple of more years, to enable Mr Chauhan to fully recover from the pandemic, rebuild the business and hire more staff. The visa applicant told the Tribunal that at that point, his plan was to return to India and start his own restaurant in Kolkata. He reiterated that conditions in India were favourable for him to be able to do this, as his research indicated that the Indian government was providing subsidies to encourage new businesses following the pandemic, and the demand for good food was there. The visa applicant stated that, given his experience as a Cook and Chef in Australia, he had sufficient experience to establish and run his own restaurant business in India. In response to the Tribunal’s observation that he would be able to earn more money in Australia as a Cook than he would in India, and that this might act as an incentive for him to remain in Australia permanently or indefinitely, the visa applicant said it would be more profitable to run his own business in India than to work in another person’s business there. He indicated that establishing a restaurant in India would be challenging but said that he believed he was well-equipped for the challenge of doing so, and that there was strong demand from the population for new places to eat, and different cuisines.
The visa applicant confirmed that his maternal grandmother, Mrs Lal, was ill for some years in Australia with cancer before her death in early 2014. His paternal grandfather had died some time before that. He told the Tribunal that he was close to his grandmother and that was one of the reasons that he remained in Australia during that period.
In relation to his present living circumstances, the visa applicant said that he rented a house which he shared with housemates. In response to the Tribunal’s query, he said that he did not have any major assets or savings in Australia, as he spent most of his money on his living expenses, and used a lot of his savings during the lockdown periods in 2020 and 2021 when he was unable to work and was not entitled to any Centrelink assistance. He also noted that he had sometimes sent money to his parents.
In relation to his intentions at the time that he applied for a subclass 186 visa in 2019, which is a permanent residence visa, the visa applicant said that his employers at that time, Nantu Pty Ltd, were very keen to retain him due to his skills as a Cook and they offered to nominate him for permanent residence. He decided to take up this opportunity for as long as it lasted. However, that business later collapsed suddenly, and the visa applicant was not informed by them of this. He told the Tribunal that his former employers at Nantu Pty Ltd had indicated that they would support him in his Tribunal appeal but they then pulled out of the nomination review application. When asked about the fact that he sought judicial review in September 2019 of the Tribunal (differently constituted) decision to affirm the refusal of a subclass 186 visa to him (as he did not have an approved nomination), the visa applicant said that he did not obtain legal advice about this. He was very upset at his treatment by his former employer and believed that taking the matter to court would enable him to get some justice against them. When it was pointed out to him that judicial review of the previous Tribunal decision to refuse his visa would not achieve this outcome, as it would not involve his former employer, the visa applicant said that he would not pursue the judicial review application. He reiterated that his purpose in applying to the Courts was to seek some kind of closure with his former employers, and not to obtain permanent residence.
The visa applicant’s agent clarified that he did not act for the visa applicant in his judicial review application and that he considered that the visa applicant did not fully understand the grounds for seeking judicial review.
The visa applicant confirmed that he had complied with all of his previous visa conditions and would comply with any imposed on a subclass 482 visa, if he were granted one.
Mr Chauhan confirmed to the Tribunal that without the visa applicant working as a Cook in his business, he would not be able to operate it at present, as it had proven very difficult to date to find experienced Cooks and other wait staff. Presently, the restaurant was mainly doing take away orders for this reason, although it previously offered dining in for customers. Mr Chauhan said that he did not currently have the staff to offer a dine in service again yet but hoped that in the next year or so, the business would build back to this and that more staff would be available now that the COVID19-related travel and business restrictions had been lifted. In response to the Tribunal’s observation that it sounded like he wanted to keep the visa applicant in the business permanently, Mr Chauhan said that he needed to keep the visa applicant for the next couple of years so that he could rebuild and recruit, after which the restaurant would be able to survive and expand back to its former operations. He said that he had 2 young children and his wife’s health condition did not permit her to work full time in the restaurant, so without the applicant, it would be extremely difficult for him at the moment, and he might have to close the business.
The review and visa applicants’ agent submitted that at present, Mr Chauhan had a genuine need for the applicant’s services, but this was not a permanent need, as it could be expected that more staff would become available within the next 4 years (the anticipated duration of the subclass 482 visa) such that he could recruit to replace the visa applicant. The applicant’s agent noted, however, that the current shortage of hospitality staff in Australia was critical, and said that he knew of many businesses that had either closed, gone bankrupt or been sold at a loss due to these issues. He submitted that it was crucial to Mr Chauhan to be able to retain the visa applicant’s services as a Cook for a further period, but neither Mr Chauhan nor the visa applicant saw this as a permanent arrangement. Mr Chauhan reiterated that within the expected 4 year duration of the subclass 482 visa, he expected to get the restaurant back to its former level, and then would either continue to run it or would be able to sell it as a going concern.
Following the hearing, Mr Chauhan and the agent provided the following additional material:
·further letter from Mr Chauhan in which he reiterates that he is in desperate need of the applicant, as explained at the hearing, but expects to find alternative staff within the next 2 years as the scarcity of Cooks reduces. He accepted that he would not be able to keep the nominee permanently but stated that it was critical that he continue to work in the business for another 2 years or so, and in particular, he noted that the business was approaching Christmas and New Year and he was unable to decide whether to take orders due to the uncertainty over the nominee’s visa status (provided 6 December 2022);
·several media articles, variously dated, referring to significant labour shortages in Australia in the hospitality sector;
·links to Youtube videos of news coverage by Australian television channels ABC and 9 dealing with current skills shortages and the National Skills and Jobs Summit and link to article on Yahoo Finance website dated 21 November 2022 indicating that the skills shortages in Australia will continue into 2023 (provided 1 January 2023);
·further media articles of skills shortages, including in hospitality (Cooks and other occupations), in Australia (provided 9 January 2023); and
·further statement from Mr Chauhan reiterating that he is unable to fill the position of Cook without the nominee (provided 11 January 2023).
For the following reasons, the Tribunal has decided that decision under review should be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
Genuine short term applicant
Clause 482.222 requires as follows:
The applicant is a genuine applicant for entry and stay as a short term visa holder because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)       the applicant’s circumstances; and
(ii)      the applicant’s immigration history; and
(iii)     any other relevant matter; and
(b)the applicant intends to comply with any conditions to which the visa is subject, having regard to:
(i)       the applicant’s record of compliance with any condition to which a visa previously held by the applicant (if any) was subject; and
(ii)      the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant genuinely intend to stay temporarily?
For the visa applicant to meet cl 482.222(a), the Tribunal must be satisfied that the visa applicant intends genuinely to stay in Australia temporarily, having regard to the visa applicant’s circumstances and immigration history, and any other relevant matter.
As noted above, the Departmental delegate who assessed the visa applicant’s case had a number of concerns about this requirement, noting that:
·the visa applicant had been in Australia since late June 2008 on a series of temporary visas with minimal absences from Australia to date;
·he had at one stage applied for permanent residence (although that application had not been successful);
·the visa applicant now had substantial experience and Australian qualifications as a Cook and thus there appeared no reason for him not to return to India to establish a restaurant of his own, given his claimed intention to do so; and
·the visa applicant had little family incentive to return to India as his only sibling was an Australian citizen and he had cousins in Australia, although it was acknowledged that his parents remained in India.
In response, the visa applicant submitted (in summary) that:
·he stayed in Australia because he was studying, and also wished to be here during the period that his grandmother (who lived in Australia) was diagnosed with cancer and ultimately died;
·his parents visited him in Australia on a number of occasions for significant periods, thereby reducing his need to travel to India to see them. In any case, it was not possible for him to travel to India with any guarantee of being able to return to Australia during the COVID19 pandemic in 2020 and 2021 when there were travel restrictions in place;
·he had thought of applying for permanent residence when he was offered a nomination for this by his former employers, Nantu Pty Ltd, but this ultimately failed and his only reason for pursuing judicial review of the Tribunal (differently constituted) decision to affirm the decision not to grant him a permanent residence visa was to confront his former employers about their failure to support him;
·he felt strong loyalty to his current employer, Mr Chauhan, and wanted to work in the business for several more years so that Mr Chauhan could build it back up to its pre-pandemic level, at which point the applicant intended to return to India; and
·he genuinely intended to return to India as he was expected to care for his parents in their old age and this responsibility was a culturally significant one. Moreover, he still intended to establish his own restaurant in Kolkata and was confident that this would provide him with a good income, such that his wages as a Cook in Australia were not a long term incentive for him to remain here.
The Tribunal has considered the above, and has also had regard to the Department’s policy guidelines on this issue, as set out in its Procedures Advice Manual (or PAM3) (current as at 1 December 2022]:
4.4.2. Genuine temporary entrant
4.4.2.1 Overview
The TSS short-term stream is intended to fill short-term vacancies in Australia. As a result, under clause 482.222, primary visa applicants are required to be genuine applicants for entry and stay as a short term visa holder – that is, they must be a ‘genuine temporary entrant (GTE)’.
This ‘GTE requirement’ should be considered met in the following circumstances:
·     an international trade obligation (ITO) applies under policy; and
·     the primary applicant’s intended duration of stay is within the period permitted under the ITO.
For further information, see section 4.4.2.2 International trade obligations and repeat stays below.
In other circumstances, under policy, GTE can generally be considered met unless the primary visa applicant:
·     has held more than two TSS visas in the short term stream during the last five years; or
·     has been in Australia for four years already (regardless of visa type) and the decision-maker has significant concerns that the applicant is not a GTE, having regard to the factors outlined below – see section 4.4.2.3 Where further assessment is required.
4.4.2.2 International trade obligations (ITOs) and repeat stays
The World Trade Organization General Agreement on Trade in Services and Australia’s free trade agreements (FTAs) contain commitments on duration of stay for certain categories of service suppliers. Each category commitment will also specify whether an onshore provision for extension is permitted.
The Department takes this into account already in the context of the short-term stream, when allowing employers seeking to benefit from such ITOs to select an employment period of up to four years as part of the nomination application process - see: Procedural Instruction: Temporary Skill Shortage visa (subclass 482) - nominations. This employment period then drives the visa stay period that will be granted, with a maximum stay period of four years available.
Such ITOs are also, however, relevant in the context of assessing the GTE requirement. This is because the GTE requirement should be considered met if the period of stay of the visa applicant does not exceed the permitted period under the ITO. In practical terms, given the GTE policy settings outlined above, decision-makers are, however, only required to consider whether ITOs apply where the duration of stay permitted under the ITO is longer than four years.
Visa applicants who are eligible for stays totalling more than four years include the following client cohorts:

Client cohort

Duration of stay

Citizens from Japan or citizens and permanent residents of South Korea, or Chile who are:

·     identified in the related nomination form as an intra-corporate transferees; and

·     nominated as an Executive or Senior Manager.

8 years

All Chinese citizens

8 years

Citizens of Thailand who are identified in the related nomination form as an intra-corporate transferee

14 years

Singapore citizens and permanent residents who are identified in the related nomination form as an intra-corporate transferee

15 years

Citizens of other ASEAN nations* who are:

·     identified in the related nomination form as an intra-corporate transferees; and

·     nominated as an Executive or Senior Manager.
14 years

* That is, Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Thailand and Vietnam.
4.4.2.3 Where further assessment is required
If further assessment is required consistent with the guidelines above, officers should then consider whether they are satisfied that the applicant is a GTE because they intend genuinely to stay in Australia temporarily (see paragraph 482.222(a)), taking into account:
·     the applicant’s circumstances;
·     the applicant’s immigration history; and
·     any other relevant matter.

Where such further assessment is undertaken, decision-makers should consider the further guidelines below, including factors that may under policy support a finding that the applicant is, or is not, a GTE.
Note:
· Paragraphs 482.222(b) and (c) can be considered met where a decision-maker has already assessed clause 482.211 as met, and there no information available to the contrary.
· decision makers should not refuse a visa on GTE grounds for a visa applicant who has been in Australia for less than four years without first consulting Program Management, who will confirm that no other ITOs apply in the specific case – with, for example, FTAs providing for an extension for intra-corporate transferees from a WTO country who are nominated as an Executive or Senior Manager.

Factors supporting finding that applicant is a genuine temporary entrant
Under policy, the factors which may add weight to an assessment that the applicant is a GTE include:
·     the visa applicant has substantially complied with the conditions on any previous visas; or
·     the applicant’s periods of stay in Australia have been intermittent; and
·     the applicant has not established ongoing residence in Australia.

Factors supporting finding that applicant is not a genuine temporary entrant
Under policy, factors that may add weight to an assessment that the applicant is not a GTE:
·     the applicant has failed to comply with the conditions of a previous visa(s) and/or had a previous visa cancelled or is being considered for cancellation;
·     the applicant has spent more than four cumulative years on a TSS short-term visa(s) in the last five years;
·     there are substantive inconsistencies in the information provided by the applicant in their TSS visa application, that cannot be reconciled (example occupation/s declared in previous applications, incoming passenger cards, Form 80, etc.);
·     the applicant appears to be using the TSS and/or other visa programs to maintain ongoing residence in Australia*;
·     the applicant has lodged two or more unsuccessful TSS applications (that is, applications that have been refused or withdrawn), in particular, where:
·     the nominated occupation has changed per application; and/or
·     the nominated occupation is not consistent with their previous employment or studies in Australia.
·     the applicant is in a cohort of clients identified in statistical, intelligence and analysis reports on migration fraud and immigration compliance compiled by the Department;
·     the applicant or their family member has an immigration history of concern, that is;
·     an applicant was previously refused a visa in Australia and now seeks to prolong their stay
·     an applicant who has maintained ongoing residence in Australia on a range of short term temporary visas
·     an applicant who has a history of visa refusal, or non-compliance with immigration requirements in another country
·     there are substantive inconsistencies in the information provided by the applicant in their various interactions with the department that cannot be reconciled
·     the applicant has made a protection visa application that is either currently under consideration or was refused, this may demonstrate that there are significant incentives for the applicant not to return to their home country. Officers should have regard to the applicant’s previous claims for protection and should be satisfied that these claims no longer reflect the applicant’s current or future circumstances. If the applicant’s circumstances have not changed, they may not be intending to reside in Australia temporarily.”; or
·     economic or political circumstances in the applicant’s country would present as a significant incentive for the applicant not to return to their home country or country of residence.

*Important: This does not mean that visa applicants cannot meet the genuine temporary entrant requirement where they have utilised a number of temporary visa programs. This is not of concern where the applicant has clearly utilised the relevant temporary programs for an appropriate purpose (e.g. visiting Australia, studying in Australia), has complied with their visa conditions and is clearly a skilled overseas worker filling a skilled position that cannot be filled locally.

In the ordinary case, policy is a relevant factor for the Tribunal to take into account.[1] Whether the Tribunal should apply that policy or interpretative guidelines in a particular case will depend on a range of factors, including whether it is exercising a discretionary or non-discretionary power and whether the nature of the power suggests an emphasis on consistency or a focus on the circumstances of the individual case.
[1] See, e.g., Hneidi v MIAC [2009] FCA 983 (Besanko J, 2 September 2009), at [37].
When exercising a discretionary power the Tribunal should have regard to policy, as a relevant consideration. However, whether exercising a discretionary or non-discretionary power, policy is not binding on the Tribunal.[2] In Re Drake and MIEA (No 2) (Re Drake No 2) Brennan J stated:
the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case.[3]
[2] See, e.g., Qiao v MIAC [2008] FMCA 380 (Orchiston FM, 28 March 2008) at [29] and Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732 (Davies J, 12 December 1995).
[3] (1979) 2 ALD 634 at 644.
As noted by the Court in Durzi v MIMIA, when considering the issue of the role of PAM3 in relation to the interpretation of r.1.15:
PAM3 is simply a document which brings a number of relevant facts to the attention of the decision maker to which the decision maker may or may not have regard in considering whether an applicant has brought himself or herself within the criteria required in reg 1.15. It has no legislative effect. It does not construe reg 1.15. A decision maker is not bound to have regard to it or if a decision maker has regard to it the decision maker commits no error. [4]
[4] [2006] FCA 1767 (Lander J, 19 December 2006) at [49].
This view was restated in Moller v MIAC:
[PAM3’s] status is merely a set of administrative guidelines, and its contents cannot be elevated into legally relevant considerations or binding representations (see Vishnumolakala v Minister for Immigration & Anor [2006] FMCA 1209 at [27]-[29] and cases there cited). Nor can its legal interpretations or restatements be applied by the Migration Review Tribunal or this Court as substitutes for the regulations, which must be construed according to their own language under principles of statutory interpretation.[5]
[5] [2007] FMCA 168 (Smith FM, 28 February 2007) at [14].
The Tribunal notes that the visa applicant has been residing in Australia on a series of temporary visas for over 14 years as at the time of the Tribunal’s consideration in January 2023, having arrived as a student in June 2008, then having been granted post study temporary sponsored employment visas with 3 different employers (in 2013, 2014, 2017 and 2019).
This is a considerable amount of time and clearly raises the question of whether the visa applicant genuinely intends – in relation to the current visa application under review – to only reside in Australia temporarily.
Adding to the Tribunal’s concerns arising from the length of the visa applicant’s residence in Australia are:
·the fact that the visa applicant applied for permanent residence in June 2017 (nominated by Nantu Pty Ltd) and, when this application was refused, pursued to matter by seeking review of that decision with this Tribunal (differently constituted) and when the Tribunal affirmed the refusal decision, by lodging an application for judicial review which is still pending as at the date of the Tribunal’s decision; and
·the strength of the visa applicant’s ties to Australia versus those he has to India, as evidenced by his family composition and his limited return travel to India over the 14+ year period he has largely resided in Australia.
In relation to the visa applicant’s permanent residence application, the Tribunal considers that at hearing, the visa applicant sought to play down the significance of this visa application, suggesting that it was largely driven by his employers (Nantu Pty Ltd). However, the Tribunal notes that the visa applicant consciously made the permanent residence application in 2019, and actively pursued it through the available appeal avenues when the Department rejected it, including the Tribunal and the Federal Court (where it is currently pending). The Tribunal finds it difficult to reconcile this with the visa applicant’s claim that he only applied for permanent residence at the behest of his then employers, and that he only continued to pursue the matter because he wished to confront his former employer after they withdrew support for his nomination while the case was at the Tribunal. The Tribunal notes the agent’s submissions that the visa applicant did not have legal advice about the appeal process he engaged in, and that the applicant appeared naïve about expecting the Tribunal and/or judicial review process to address any outstanding matters between him and his former employer. The Tribunal notes that by 2019, the visa applicant had been residing in Australia for 9 years and had held several employer sponsored temporary visas. The Tribunal therefore does not accept that he was particularly naïve or unfamiliar with visa application processes or that he did not intend, at least at that time, to obtain permanent residence in Australia.
The Tribunal acknowledges that it is possible that the visa applicant’s intention has changed, as he asserted at hearing that it had, but considers that his still pending judicial review application in relation to the refusal of his permanent residence visa undermines this contention.
The Department’s movement records indicate that from the date of the visa applicant’s arrival in Australia as a student on 29 June 2008 to date, he has been outside Australia for the following periods:
·6 July 2010 to 25 July 2010 (21 days); and
·24 October 2019 to 1 November 2019 (8 days)
Accordingly, the visa applicant has been outside Australia for approximately 1 month out of the last 14.5 years. On the face of it, this is a significant indicator to the Tribunal that the visa applicant does not genuinely intend to reside only temporarily in Australia.
Nevertheless, the Tribunal acknowledges that the visa applicant put forward several reasons as to why he had not spent more time outside Australia in the above period, being that:
·his mother visited him in Australia for at least 2 extended periods, so he did not need to return to India to see her;
·his maternal grandmother, who resided in Australia, died in 2014 and he wished to spend as much time with her as possible throughout the illness that preceded her death; and
·the global COVID19 pandemic had prevented him travelling overseas with any guarantee of returning to Australia from early 2020 to date.
The Tribunal accepts that the global COVID19 pandemic has prevented most international travel for the best part of 2 years from early 2020 onwards, and this factor was outside the control of the visa applicant. In relation to his family circumstances, while the Tribunal accepts that the visa applicant’s mother has been able to visit Australia on several occasions to see him (and other family members), and that he wished to spend time with his grandmother during her terminal illness, the lack of return travel to India undermines the visa applicant’s claims that he only intends to stay in Australia temporarily and that he has a strong incentive to return to India because of his responsibilities to his parents. In relation to the latter consideration, the Tribunal acknowledges that the visa applicant’s parents have not required significant care to date since it appears that his father is still in the workforce and is yet to retire. The applicant estimated that this may occur in the next 6 years. However, the Tribunal considers that this must be weighed against the fact that the visa applicant’s only sibling, his sister, is an Australian citizen resident here, and that the visa applicant has a niece, brother in law and several cousins in Australia. He therefore has strong family ties in both India and Australia, and it is not clear to the Tribunal that he has stronger family ties in India than he does here. The Tribunal is therefore not satisfied that the applicant’s family ties in India indicate that he only intends to reside temporarily in Australia.
It was submitted that another reason for accepting that the visa applicant genuinely intended to reside temporarily only in Australia was his plan to open his own restaurant in Kolkata, given the employment and business experience he had acquired from having worked as a Cook for over 8 years in Australia. The Tribunal accepts that the visa applicant has undertaken some research into this issue but finds that he has no imminent plans to return to India in the near future to set up his own business.
The visa applicant, his employer Mr Chauhan and the agent further submitted that the visa applicant and Mr Chauhan accepted that the visa applicant would remain working as a Cook in the nominating business for 2 to 4 years if granted the visa currently under review, at the conclusion of which, Mr Chauhan would have been able to recruit another Cook (and other staff) and the visa applicant would return to India to establish his own restaurant. The Tribunal has some doubts about these assertions, given the strong need expressed by Mr Chauhan for the visa applicant’s ongoing service, the likely ongoing skills shortages which may not be resolved by the time that any temporary visa granted to the visa applicant expires, and the visa applicant’s earlier permanent residence application.
The Tribunal acknowledges that there is a well-documented skills shortage in Australia, including in the hospitality sector, and it is cognisant of the critical importance of the visa applicant’s role, as identified by Mr Chauhan, in the nominating business. This leads the Tribunal to consider that it may be in the mutual interests of Mr Chauhan and the visa applicant for the visa applicant to remain in Australia for as long as possible.
The Tribunal considers that, while there are factors weighing in favour of the visa applicant genuinely intending to reside temporarily in Australia in connection with this visa application, the cumulative effect of the considerations discussed above indicate that the visa applicant does not genuinely intend to reside in Australia temporarily only.
Therefore, the visa applicant does not meet cl 482.222(a).
It is therefore unnecessary for the Tribunal to consider whether the applicant intends to comply with visa conditions if granted a visa.
Is the applicant a genuine applicant for entry and stay as a short term visa holder because of any other relevant matter?
For the applicant to meet cl 482.222(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a short term visa holder because of any other relevant matter (in addition to the requirements in cls 482.222(a) and (b)).
The Tribunal is not aware of any other relevant matter other than the issues discussed above in relation to cl.482.222(a). The Tribunal has found that the applicant is not a genuine applicant for entry and stay as a short term visa and therefore finds he does not meet cl.482.222(c).
Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a short term visa holder as required by cl 482.222.
As one of the essential requirements for the visa is not met, the decision under review must be affirmed
decision
The Tribunal affirms the decision not to grant the visa applicant Temporary Skill Shortage (Class GK) visa.
Alison Mercer
Member

Client cohort	Duration of stay
Citizens from Japan or citizens and permanent residents of South Korea, or Chile who are: · identified in the related nomination form as an intra-corporate transferees; and · nominated as an Executive or Senior Manager.	8 years
All Chinese citizens	8 years
Citizens of Thailand who are identified in the related nomination form as an intra-corporate transferee	14 years
Singapore citizens and permanent residents who are identified in the related nomination form as an intra-corporate transferee	15 years
Citizens of other ASEAN nations* who are: · identified in the related nomination form as an intra-corporate transferees; and · nominated as an Executive or Senior Manager.	14 years