KANASHIRO (Migration)

[2023] AATA 663

KANASHIRO (Migration) [2023] AATA 663 (6 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Willian Kiyoshi KANASHIRO

REPRESENTATIVE:  Ms Krishlyn Chetty

CASE NUMBER:  2004500

HOME AFFAIRS REFERENCE(S):          BCC2019/4742366

MEMBER:Alan McMurran

DATE:6 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.311 of Schedule 2 to the Regulations; and

·cl 482.312 of Schedule 2 to the Regulations

Statement made on 06 February 2023 at 11:05am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – joiner – application made soon after meeting partner – applicant’s and partner’s separate applications – applicant did not complete skills assessment when required – nominating business now closed, and no current approved work sponsor – partner’s visa granted – submission to be included as secondary applicant to partner’s visa – application valid at time of application – no requirement that applicant be considered only as primary or secondary applicant, but not both, even when seeking only to meet primary criteria – relationship status – registration of relationship, evidence at hearing and supporting documentation and statements – genuine relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140M
Migration Regulations 1994 (Cth), Schedule 1, cl 1240(3)(f), Schedule 2, cls 482.212(1), (3), (4), 482.311, 482.312(1)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 6 March 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 17 February 2020 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, Mr Willian Kiyoshi KANASHIRO, a citizen of Brazil, applied for the visa on 21 September 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Joiner (ANZSCO 331213) .

3. 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.

4. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

5. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the primary criteria requirements of cl 482.212(3) of Schedule 2 to the Regulations, because the applicant had failed to provide evidence when requested to do so, that he has the necessary skills for the occupation.

6. The applicant appeared before the Tribunal by video on 31 January 2023 to give evidence and present arguments. The applicant was represented in relation to the review by his solicitor who also appeared. The solicitor also made submissions, before, during, and post-hearing.

7. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the requirements for a Subclass 482 Temporary Skill Shortage Visa.

   Background

9. The applicant arrived in Australia on 9 February 2014 as a student. The applicant obtained further student visas on 17 July 2014, 18 February 2015 and 17 October 2018. The applicant’s studies included English, Certificate IV in Business, Higher English studies, a Diploma of Business, and a Bachelor of Business, completed in 2020.

10. The applicant worked part-time in Sydney for his sponsor, Red Fig Services Pty Ltd, while a student, and which part-time work commenced in about 2016.

11. In about July 2019, the applicant met his partner, Ms Sara Correia, also a Brazilian citizen. The applicant submitted that he and Ms Correia commenced living together after May of 2021 in a de facto relationship, which they registered on 12 February 2022 with the NSW Registry of Births Deaths and Marriages. The relationship issue is further considered below.

12. Ms Correia made application to the Department for a Subclass 482 visa in her own name and which visa was approved on 22 August 2022. The applicant was not included in that visa application which was not a combined application. Ms Correia is currently in Australia on a valid TSS 482 visa and working in Sydney, while living with the applicant.

13. Similarly, the applicant brought his application for his Subclass 482 visa in September 2019, not long after he had met his partner, but for reasons of uncertainty at that time about the new relationship while they were not living together, Ms Correia was not included in his application, and which is not a combined application.

    Requirement for an approved nomination

14. 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.

15. The applicant explained to the Tribunal at hearing that the applicant’s nominator, Red Fig Services Pty Ltd, went into external administration in about early 2020.[1] The applicant was uncertain of the date but linked it to the start of the pandemic, and a downturn in that business which he informed the Tribunal has now ‘closed’. The applicant does not have another sponsor or nominator for the nominated occupation of Joiner (ANZSCO 331213).

    [1] Confirmed independently by the Tribunal’s ASIC search

16. At the time of the Tribunal hearing, the applicant has been unsuccessful in obtaining another sponsor and had not yet informed the Department of his changed circumstances, namely the loss of his nominator.

17. The nomination by Red Fig Services Pty Ltd, was approved by the Department on 28 June 2019, and the related visa application brought on 21 September 2019. The applicant was required to provide a skills assessment for the visa application to proceed and in accordance with the common criteria for the visa, sub-clause 482.212(3) and (4). As already noted, the application was then refused when the skills assessment was not completed.

18. By the time of the Tribunal hearing, there was no advance on that circumstance and the applicant confirmed he had not sought to complete the skills assessment and had not undertaken a further assessment since.

19. At the time of decision, therefore, the Tribunal finds that the applicant is unable to meet the requirements of cl 482.212(1).

20. Similarly, and as the applicant has conceded that he does not have a completed skills assessment, the applicant cannot meet sub-clause 482.212(3) and (4).

21. The Tribunal asked the applicant how he intended to proceed noting that he could not meet the primary criteria for the visa at the time of decision and had not addressed the issue which had led to the visa refusal. The applicant said that he wanted to proceed on the basis that the Tribunal might now be able to include the applicant as a family member to the existing Subclass 482 visa already granted to his partner, Ms Correia. He relies upon the written submissions from his lawyer and submits that he meets the criteria for the grant of the visa now as a secondary applicant in this application.

22. He submits that such a finding is not dependent upon ‘replacing’ or ‘swapping’ or ‘adding’ him so that he then is named as a ‘secondary applicant’ in this application. He submits that he needs only to be named in the application, where he is already an ‘applicant’, to allow consideration of his status also as a secondary applicant, and in which case,  he need only meet the secondary criteria. 

23. The Tribunal then heard legal argument from the applicant’s representative and a submission as to how the Tribunal may proceed on that basis. The representative also made detailed written submissions referred to below.

    Does the applicant meet the secondary criteria?

24. The applicant has made two written submissions from his lawyer, one before hearing, and another post-hearing.

    Submission – 23 January 2023

25. The written submission from the applicant’s lawyer, set out in full, is as follows:

    1.Solve Law acts for the above-mentioned Applicant and his partner, Sara Correia, in this matter. Krishlyn Chetty (LPN 5510073) of Solve Law is an Australian Legal Practitioner who has carriage of this matter.

    2. We write to make a request in relation to the Applicant’s Tribunal hearing, namely, to change him from the main applicant in a 482 visa application to a secondary applicant.

    3. Our clients previously lodged another, separate, 482 visa application for Mr Kiyoshi’s partner, Ms Sara Correia, which was successfully granted on 12 August 20022 (TRN: EGOSIRHMSU).

    4. We request that, as the AAT is able to review a 482 visa for either class of applicant (primary or secondary), the Tribunal please assess the Appeal of Mr Kiyoshi’s 482 visa application against Ms Correia’s 482 visa, with Ms Correia as the main applicant and Mr Kiyoshi as secondary applicant (instead of Mr Kiyoshi being considered as primary applicant in his original 482 application).

    5. We have previously successfully requested the same such change (from primary applicant to secondary) for other clients in the same circumstances in the past and refer the Tribunal to the decision record for one such case; Mr Vincenzo Fumia, AAT Case Number 1621247, Decision Date 17 Dec 2018.

    6. In further support of this request, we would like to address a number of points, in pre-emption of common concerns addressed in the past at Tribunal as to the validity of such a request.

    7. In anticipation of any concerns regarding the requirements of s1240 Migration Regulations (which specifically pertains to Temporary Skill Shortage (Class GK) visas, including subclass 482 visas), we make the following submissions.

    8. We refer the tribunal to 1240(3)(f) which stipulates the requirements for Subclass 482 (Temporary Skill Shortage) visas specifically: (f) If the applicant seeks to satisfy the primary criteria for the grant of a Subclass 482 (Temporary Skill Shortage) visa: (i) a person must have nominated a proposed occupation (the nominated occupation) in relation to the applicant for a Subclass 482 (Temporary Skill Shortage) visa in a stream; and (ii) the application must be for a Subclass 482 (Temporary Skill Shortage) visa in the stream for which the nominated occupation was nominated; and (iii) the application must identify the nomination; and (iv) one of the following must apply: (A) the nomination has been approved under section 140GB of the Act and the approval of the nomination has not ceased under regulation 2.75; (B) a decision in respect of the nomination has not been made under section 140GB of the Act; and (v) the person who made the nomination must not be the subject of a bar under section 140M of the Act.

    9. We submit that the above relates to a valid application, noting that a Nomination was made with relation to a 482 application or approval at the time of Visa Application. We submit that 1240(3)(f) relates to the making of a valid application.

    10. As the application was accepted and acknowledged, we deem the validity requirement to have been met.

    11. We submit and provide an undertaking that before a decision is made on a Subclass 482 visa, a new nomination can be lodged and relinked to either the main or secondary applicant. This includes the following examples, which are readily accepted by the Department of Home Affairs: a. Lodgment of a Nomination and Visa application, Nomination is Approved, before the Visa is approved, a new Nomination is lodged and linked to the visa. b. Lodgment of a Nomination and Visa Application, Nomination is refused, Department provides a 28 day Natural Justice period, a New Nomination with a new employer is lodged, the visa is then reconsidered under the new respective Nomination. c. Lodgment of a Nomination and Visa Application, Nomination is refused, Visa is refused, Department provides a 28 day Natural Justice period, a New Nomination with a new employer and under a new SBS is lodged under the secondary applicant, the visa is then reconsidered under the new respective Nomination and with the Secondary applicant as the Primary Applicant.

    12. In conclusion we submit that:

    i. The issue of validity cannot be raised as the case has been lodged, acknowledged and deemed valid. Validity cannot be revisited due to a change at time of decision. Validity is essentially a Time of Application requirement that relates to requirements at the time of application (not decision) of a visa.

    ii. Even if validity was questioned, 1240(3)(f) has been met as, at the time of lodgment, a valid nomination was lodged, that nomination was appealed and a new 482 nomination was lodged to reconnect the application to the secondary applicant.

    iii. As is evident in all refusals, an application for a visa for a secondary applicant is also an application for the same visa subclass, therefore Mr Kiyoshi has lodged a 482 visa application in his own right at the time of application.

    iv. The applicant meets all requirement for the grant of a 482 visa, as secondary applicant.

    13. We have attached the following: a) Ms Correia’s 482 Visa Grant; b) Ms Correia’s Passport; c) Mr Kiyoshi’s Passport; d) Evidence of the de facto relationship between Mr Kiyoshi and Ms Correia; and e) Tribunal Decision Record for previous case number 1621247.

    14. We hope that the above submissions, prior Tribunal precedent and documentary evidence are taken into consideration wholly and cumulatively when deciding the outcome of the Applicant’s appeal.

    15. We request that the case be decided on papers. However, if the decision cannot be remitted in favour of our client then we will proceed with the scheduled Hearing on 10am, 31 January 2023.

26. At the hearing, the Tribunal pointed out the fact that there was no combined application before it for consideration, where the applicant’s partner may have been included as a dependent applicant, in this application, or in an application by the partner where the applicant may have been named as the dependent applicant. They were not. The Tribunal pointed out that the Tribunal decision relied upon by the representative in argument was readily distinguishable, because that case involved a combined application for a Subclass 457 visa, where both parties were before the Tribunal on review in a combined application, and it was possible for the Tribunal to make directions considering both the primary and secondary applicants, and so as to meet the circumstances of that case[2].

    [2] AAT Case Number 1621247, Decision Date 17 Dec 2018

27. The Tribunal put to the representative that the case was distinguishable for those reasons, that it was a different factual circumstance, that this tribunal was not bound to follow that outcome or decision, and that the application of cl1240(3)(f) in Schedule 1 to the Regulations was not apposite in the circumstances of the applicant. The representative sought to argue that where there was a nomination in place in the same visa stream, being a Subclass 482 Medium Term Stream application by the partner, and a visa approved in that stream for the partner, and where there was no existing bar under section 140M of the Act, then it is arguable that the applicant may also be regarded as the dependent or secondary applicant, following the partner’s Subclass 482 visa approval.

28. Contrary to the request in paragraph numbered 4 of the first written submission set out above, and after discussion with the Tribunal, the representative did not seek to argue at hearing that the Tribunal in this review could ‘replace’ the applicant with Ms Correia and then ‘add’ the applicant as the dependent or secondary applicant in the current application. The representative further conceded that it was not possible for the Tribunal to make any directions in relation to the application already brought and finalised by Ms Correia for her application, which was not a combined application, and where there was never any application by Ms Correia before the Tribunal.

29. The Tribunal listened carefully to the arguments. The Tribunal cannot accept that it has any jurisdiction over the previous application brought by Ms Correa and dealt with by the Department and in which respect there was never any need for a review in the Tribunal.

30. Furthermore, the Tribunal cannot accept the submission that cl1240(3)(f) in Schedule 1 to the Regulations may permit changing or varying the applicants in proceedings and in the circumstances and manner suggested for this particular application, by adding Ms Correia to this application.

    Post-hearing Submission – 2 February 2023 

31. The submission sets out relevantly as follows:

    1.Solve Law acts for the above-mentioned Applicant and his partner, Sara Correia, in this matter. Krishlyn Chetty (LPN 5510073) of Solve Law is an Australian Legal Practitioner who has carriage of this matter.

    2. We write to make the following post-hearing submissions in relation to the Applicants’ Tribunal hearing, held on Tuesday 31st January 2023, to address a number of concerns raised by the Member.

    3. Our clients previously lodged a separate, 482 visa application for Mr. Kiyoshi’s partner, Ms. Sara Correia, which was successfully granted on 12 August 2022 and we had requested that, as the AAT is able to review a 482 visa for either class of applicant (primary or secondary), the Tribunal please assess the Appeal of Mr. Kiyoshi’s 482 visa application against Ms. Correia’s 482 visa, with Ms. Correia as the main applicant and Mr. Kiyoshi as secondary applicant.

    4. We have previously successfully requested the same such change (from primary applicant to secondary) for other clients in similar circumstances in the past and referred the Tribunal to the decision record for one such case; Mr. Vincenzo Fumia, AAT Case Number 1621247, Decision Date 17 Dec 2018.

    5. However, the Member pointed out that this previous decision differed on the facts as both visa applications were still undecided at the time the Tribunal hearing took place, whereas in this instance, Sara’s visa has already been granted.

    6. We therefore refer the Tribunal to an additional case whereby the same underlying principle argued today (that assessment as either primary or secondary applicant for the same visa subclass is possible) was successfully found to be possible at Tribunal, in AAT Case No: 2010156 concerning an Applicant (Mr. Jaspreet Atwal) and his partner (Hardeep Kaur) who held an already-decided visa of her own, of the same subclass.

    7. In this case, Mr. Atwal’s partner was first asked to be recognised as satisfying the secondary criteria to be considered as a member of the family unit of a person.

    8. Once recognised and considered to be included as a Secondary Applicant in the Appeal, the principle of assessing Secondary Applicant instead against the Primary Applicant criteria of the Visa application in the Appeal was then requested. This request was successfully granted, despite the Applicant’s partner already holding her own current visa in this subclass.

    9. We hereby submit that in this instance, similar to the above circumstances, Ms. Sara Correia (as de facto partner of the Applicant) satisfies the requirements for the Secondary Applicant, and subsequently meets the Primary criteria for the grant of the 482 visa.

    10. Our original request was that the Applicant in the appeal, Willian Kiyoshi Kanashiro, be considered as Secondary Applicant (instead of Primary Applicant) against his partner Sara Correia’s visa of the same subclass.

    11. The Tribunal has today asked for a written statement from Ms. Correia’s 482 sponsor consenting to add Mr. Kanashiro to her 482 visa, which they have agreed to provide in support of this appeal.

    12. In the alternative, we submit that the above-mentioned previous Tribunal decision concerning Mr. Jaspreet Atwal (AAT Case No: 2010156) instead provide a second alternative option for Tribunal to instead recommend reconsidering the visa application which is the subject of this appeal with Sara as Primary applicant and Willian as Secondary Applicant.

    13. In either event, we request that the Tribunal remits the application for reconsideration, with the direction that the applicant ought to be assessed by the Department as Secondary Applicant on either his original application or his partner’s current visa, both of subclass 482.

    14. We are aware of and apologise for the fact the Tribunal did not receive the supporting documentation referred to in our previous submissions until the day of the hearing. For your reference this evidence comprised the following: a) Ms. Correia’s 482 Visa Grant; b) Ms. Correia’s Passport; c) Mr. Kiyoshi’s Passport; d) Evidence of the genuine de facto relationship between Mr. Kiyoshi and Ms. Correia; and e) Tribunal Decision Record for previous case numbers 1621247 and 2010156.

    15. In addition, we are further providing at the time of these post-hearing submissions the above-mentioned written statement from Ms. Correia’s 482 sponsor, confirming they are willing to add Mr. Kanashiro to her 482 visa.

    16. We hope that the above submissions, prior Tribunal decisions and documentary evidence are taken into consideration wholly and cumulatively when deciding the outcome of the Applicant’s appeal.

    17. It has been a settled practice that although the Tribunal is not bound by the doctrine of precedent or stare decisis to follow earlier decisions of the Tribunal at first instance, nevertheless, as a matter of comity and consistency, the Tribunal should do so. This was held in Commissioner of Police, NSW Police Force v Lee2.

    18. Since the findings in the case at bar were not erroneous nor were they unreasonable, we therefore request the Tribunal apply these doctrines in the case at hand and consider remitting the decision in favour of our client, with directions to the Department to consider grant of a sc 482 visa (as Secondary Applicant) to Mr. Kanashiro.

1. The Tribunal considers that this submission has considerable weight. Taken cumulatively with the submissions made prior to hearing, the Tribunal concludes that it is acceptable for this application to be considered on the basis the applicant is in fact seeking only to satisfy the secondary criteria.

2. The sponsor for Ms Correia has confirmed in writing that it consents to the addition of the applicant as secondary applicant to the already-decided application of Ms Correia.

3. Policy provides that subsequent dependant applicants cannot be “added” post-lodgement to an existing primary or secondary application that has not been decided. This is because the application will not have been made “at the same time” as the primary application as required by the regulations.[3] The Tribunal is guided by that policy approach and which it accepts. The Tribunal however does not consider that it is necessary to ‘add’ Ms Correia as the primary applicant in this application, as proposed, and for the following reasons, considers the Tribunal may still review the applicant as to whether he meets the secondary criteria for Ms Correia’s application.

   [3] Policy PAM 3 TSS 482 Procedural Instruction at 4.2.6 Combined and separate applications

   Does the applicant meet the secondary criteria?

4. The Tribunal can find no requirement in the Act or Regulations for the making of a valid visa application, which prohibits consideration of an applicant as both primary and secondary applicant. There is no specific provision dealing with replacing or swapping a party in an application. This is to be distinguished from the circumstance where the provisions may allow for removal of a party, or for the addition subsequently of a newborn child as family member, or removal of an applicant who no longer wishes to be included.

5. On review, the Tribunal as decision-maker may assess an applicant’s visa application against both primary and secondary criteria as prescribed in Schedule 2 of the Regulations, and irrespective of the applicant applying to meet either or both criteria.

6. In this instance, there is no suggestion or finding that the application was not validly made and as pointed out in the submission, is accepted by the Tribunal as it was by the Department. At the time of application, the applicant met the criteria of being validly nominated as primary applicant. The Regulations however do not require that an applicant be limited to only being considered as either a primary or a secondary applicant but not in respect of the criteria for both. This leaves open the possibility that the applicant can be considered against the secondary criteria only, and whether or not he has sought at first instance to meet the primary criteria.

7. The same cannot be said for Ms Correia seeking to satisfy the primary criteria in this application. The applicant has submitted that in a previous Tribunal decision referred to, that a person was found to be an applicant in the proceedings on review who satisfied the secondary criteria, and who then went on to be considered against the primary criteria, which were also found to be satisfied. That cannot be said in this instance, as there is no submission or suggestion that Ms Correia could meet the primary criteria in this application. The finding however supports the submission that there is nothing to prevent the Tribunal from considering an applicant against both the primary and secondary criteria. This is so, even in the circumstance where at the outset, the applicant only sought to meet the primary criteria.

8. As the Tribunal is of the view that the applicant is able to be considered against either or both the primary or secondary criteria, then the application of a previous tribunal decision (not directly on point) is moot, and the Tribunal makes no further consideration of that submission that “it is bound by the doctrine of precedent or stare decisis to follow earlier decisions of the Tribunal at first instance”, recognising, however, that although tribunal decisions do not create ‘precedents’ as in the nature of judicial decisions, it is nonetheless in the interests of consistency in decision-making to follow similar tribunal decisions where relevant and appropriate.

9. In order to meet the secondary criteria, the applicant would need to meet clause 482.312(1).

   The applicant’s relationship status

   Is the applicant a member of the household of a person who now holds a Subclass 482 visa, and in which case, the applicant can satisfy the secondary criteria, being in a genuine defacto relationship so as to create a family unit for the purpose of the secondary criteria in cl 482.311?

10. The applicant has informed the Tribunal that he is now in a de facto relationship with his partner, Ms Correia, and seeks to satisfy the secondary criteria on the basis of being a family member of a person (Ms Correia) who has already been granted a Subclass 482 (Temporary Skill Shortage) visa.

11. The Tribunal has listened to the applicant’s evidence at hearing and reviewed the detailed information concerning the relationship, and the documents submitted at the hearing and immediately following, including the witness statements, and accepts on the available information that the applicant and Ms Correia are in a genuine relationship as a defacto couple.

12. On that basis, the Tribunal finds that the applicant satisfies the secondary criteria on the basis of being a family member of a person (Ms Correia) who has already been granted a Subclass 482 (Temporary Skill Shortage) visa.

    Conclusion

13. The Tribunal finds it is satisfied on the available information that the applicant is in Australia and has complied substantially with the conditions that apply to the last of any substantive visa held by him and to any subsequent bridging visa. The applicant therefore meets cl. 482.311.

14. The Tribunal further finds on the available information that it is satisfied the applicant is a member of the family unit of Ms Correia, who having satisfied the primary criteria as a primary applicant, is the holder of a Subclass 482 (Temporary Skill Shortage) visa.

15. The applicant therefore meets the requirements of cl 482.312.

16. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

17. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.311of Schedule 2 to the Regulations; and

    ·cl 482.312 of Schedule 2 to the Regulations.

    Alan McMurran
    Member