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

1. 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).

2. 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.

3. 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.

4. 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 which the applicants appointed a registered migration agent, Mr Fadi Malek, as their representative and authorised recipient for correspondence.

5. On 1 September 2022, the Tribunal wrote to the applicants via their agent to invite them, pursuant to s.359(2) of the Act, to provide information demonstrating that the first named applicant was registered as a General Practitioner by AHPRA and that cl.482.215 was satisfied. The applicants were requested to provide this information by 15 September 2022, and advised that if they did not do so (or did not seek an extension of time to do so) by that date, they would lose their entitlement to a Tribunal hearing, and the Tribunal might proceed to make its decision based on the available evidence without taking further steps to obtain the requested information, or it might dismiss their review application.

6. The Tribunal did not receive the requested information, or a request for an extension of time to provide it, by 15 September 2022. It has received no further communications from the applicants or their agent to date.

7. The Tribunal is satisfied that its s.359(2) letter was sent to the nominated email address for the applicants’ authorised recipient for correspondence, and there is no evidence in the Tribunal’s electronic records that it was undelivered or undeliverable.

8. The applicants have not responded to the Tribunal’s s.359(2) letter. In the circumstances, s.359C applies and pursuant to s.360(3), the applicants are not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890, and Hasran v MIAC [2010] FCAFC 40.

9. Accordingly, the Tribunal has proceeded to make its decision on the available evidence without deferring its decision for a further period. In doing so, the Tribunal notes that the first named applicant has been on notice since January 2020 that the criterion in dispute was whether he was registered by AHPRA as this was clearly set out in the primary decision, a copy of which he provided with the review application. Subsequently, the applicants were invited to provide updated and current information to demonstrate whether the applicant currently meets cl.485.215 but they did not respond. In addition, the applicants have had the assistance of a migration agent. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral, having regard to the principles set out in Minister for Immigration and Citizenship v Li [2013] HCA 18;.

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

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

11. 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.

12. 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.

13. 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.

14. 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.

15. 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

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

    Alison Mercer
    Member