Joshi (Migration) - [2022] AATA 3693

Joshi (Migration) [2022] AATA 3693 (19 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:
Dr Vishaw Dev Joshi

Mrs Monica Joshi
REPRESENTATIVE:  Mr Malek Fadi (MARN: 0848702)
CASE NUMBER:  2001939
HOME AFFAIRS REFERENCE(S):          BCC2019/1416295
MEMBER:Alison Mercer
DATE:19 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.
Statement made on 19 September 2022 at 11:43am

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482–applicant failed to provide requested information – Medium-Term stream – General Practitioner – applicant has not provided evidence that he is registered with the AHPRA – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359,360
Migration Regulations 1994, Schedule 2, cl 482.215

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 20 January 2020 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 20 March 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 primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of General Practitioner.
The delegate in this case refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 482.215 of Schedule 2 to the Regulations, which required that his qualifications were recognised in Australia by the relevant authority for the registration of medical practitioners, being the Australian Health Practitioners’ Registration Authority (AHPRA). The delegate noted that the applicant had provided evidence that his assessment by the AHPRA was ongoing, but had not provided evidence establishing that he was registered with the AHPRA yet. The delegate therefore refused to grant him a subclass 482 visa. The delegate also refused to grant a visa to the second named applicant (the applicant’s spouse) on the basis that she did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 482 visa, and there was no evidence that she met the primary visa criteria in her own right.
The Tribunal received a review application from the applicants on 3 February 2020. It was accompanied by a copy of the delegate’s decision and an authority by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Joshi (Migration)

Details

AGLC: Joshi (Migration) [2022] AATA 3693
Case: [2022] AATA 3693
Decision Date: 19 September 2022

CaseChat Overview and Summary

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (subclass 482) by the first named applicant, with the second named applicant seeking to be included as a secondary applicant. The dispute arose because the primary applicant, nominated as a General Practitioner, failed to provide requested information regarding their registration with the Australian Health Practitioner Regulation Agency (AHPRA). The decision under review was made by the Department and subsequently affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the first named applicant met the criteria for a subclass 482 visa in the Medium-Term stream, specifically clause 482.215. This clause requires that if the nominated occupation is a medical practitioner, the applicant's qualifications must be recognised by the relevant Australian authority for registration as entitling them to practise. A further issue was whether the second named applicant met the secondary visa criteria as a family unit member, or the primary criteria in her own right.

The Tribunal reasoned that it was undisputed that the nominated occupation was General Practitioner and that AHPRA is the relevant authority for registration. Despite repeated requests from both the Department and the Tribunal, the first named applicant had not provided evidence of AHPRA registration. Consequently, the Tribunal was compelled to find that clause 482.215 was not met. The Tribunal also affirmed the decision regarding the second named applicant, finding she did not meet the secondary criteria as a family unit member and had not provided evidence to meet the primary criteria herself.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided that the decision under review should be affirmed.CONSIDERATION OF LAW, CLAIMS AND EVIDENCE Clause 482.215 requires that:If the nominated occupation is a medical practitioner, the applicant’s qualifications are recognised by the relevant authority in Australia for the registration of medical practitioners as entitling the applicant to practise as a medical practitioner. It is not disputed that the first named applicant’s nominated occupation was General Practitioner, which is a medical practitioner. Nor is it in dispute that the relevant authority in Australia for the registration of medical practitioners, including General Practitioners, is the AHPRA. Despite requests from the Department and the Tribunal, the first named applicant has not provided evidence that he is registered with the AHPRA and entitled to practise as a medical practitioner. For these reasons, the Tribunal must find that cl 482.215 is not met by the first named applicant. He therefore does not meet the criteria for a subclass 482 visa in the Medium Term stream, and has made no claims to meet the requirements of any other stream. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 482 visa as she does not meet the secondary visa criteria in cl.482.312 to be a member of the family unit of a person who holds a subclass 482 visa, and there is no evidence to suggest that she meets the primary visa criteria in her own right.decision The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.Alison MercerMember

Decision

Reasons for decision

The Tribunal must also affirm the decision not to grant the second named applicant a subclass 482 visa as she does not meet the secondary visa criteria in cl.482.312 to be a member of the family unit of a person who holds a subclass 482 visa, and there is no evidence to suggest that she meets the primary visa criteria in her own right.decision The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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