Israelite (Migration)

[2023] AATA 3117

Israelite (Migration) [2023] AATA 3117 (15 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Marc Israelite

REPRESENTATIVE:  Mr Hendrik de Korte

CASE NUMBER:  1933833

HOME AFFAIRS REFERENCE(S):          BCC2019/4976733

MEMBER:Noelle Hossen

DATE:15 September 2023

PLACE OF DECISION:  Perth

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

Statement made on 15 September 2023 at 1:21pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – web designer – subject of approved position nomination – no evidence of approved nomination before tribunal – sporadic work on retainer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

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 22 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).

2. The applicant applied for the visa on 4 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

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 of Schedule 2 to the Regulations because the applicant does not have an approved nomination in place.

4. The applicant appeared before the Tribunal on the 15 September 2023 to give evidence and present arguments.

5. The applicant was represented prior to the to the review but his representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is that the applicants do not have any evidence before the Tribunal that they have an approved nomination identified in the visa application.

   Requirement for an approved nomination

8. 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.

9. The issue in this case is that the applicant applied for the Temporary Skill Shortage (Short Term) Subclass 482 Visa on the 4 October 2019 on the basis that they were nominated for a position of  Web Designer – 23414.The applicant had expected to be sponsored by a sponsor namely OPD DEVELOPPERS Pty Ltd.

10. The Delegate’s Decision states as follows:” The applicant was advised that their prospective employer OPD DEVELOPPERS Pty Ltd did not have an approved nomination in place for them. The applicant was invited to comment or withdraw their application in writing and was afforded the prescribed period of to do so.”

11. At the hearing the Tribunal asked the applicant whether he had an approved nomination in place from his prospective employer identified in his application. The applicant replied that he did not have a nomination and that he worked for OPD DEVELOPPERS Pty Ltd on a retainer and explained that the work was sporadic. He also worked for Dreamweaver’s on a part time basis. He had lodged extensive submissions with the Tribunal and the Tribunal has considered the information contained therein.

12. The applicant confirmed that he understood that his application for a visa will fail as there is a requirement that he is the subject of an approved nomination from the employer identified in his application.

13. At the time of the hearing there is no evidence before the Tribunal that the first named applicant is the subject of an approved nomination by the employer identified in his visa application.

14. For these reasons the requirements of cl 482.212(1) are not met.

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 applicant Temporary Skill Shortage (Class GK) visa.

    Noelle Hossen
    Member