Kaur (Migration)

[2022] AATA 1092

Kaur (Migration) [2022] AATA 1092 (11 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mrs Kamalpreet Kaur

Mr Rajwinder Singh Kharoud

Master Gurbaaz Singh Kharoud

REPRESENTATIVE:  Mr John Kotsifas

CASE NUMBER:  1834843

HOME AFFAIRS REFERENCE(S):          BCC2018/2989347

MEMBER:Karen McNamara

DATE:11 February 2022

PLACE OF DECISION:  Sydney

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

·cl. 482.212(1) of Schedule 2 to the Regulations.

·The Tribunal does not have jurisdiction in this matter in relation to the third named applicant.

Statement made on 11 February 2022 at 2:25pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482 –approved standard business sponsor –approved nomination – no jurisdiction in relation to the third named applicant – decision under review remitted 

LEGISLATION
Migration Act 1958, ss 65, 338, 411
Migration Regulations 1994, Schedule 2, r 4.02, cl 482.212

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 12 November 2018 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 9 August 2018. 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 Mrs Kamalpreet Kaur is seeking the visa in the Medium-term stream to work in the nominated occupation of Chef (ANZSCO 351311).

3. On 12 November 2018, the delegate refused to grant the visas on the basis that the first named applicant Mrs Kamalpreet Kaur (the applicant) did not satisfy the requirements of cl.482.212(1) of Schedule 2 to the Regulations because she was not the subject of an approved nomination by an approved Standard Business Sponsor (SBS). The delegate found that the applicant’s employer, ASMT Pty Ltd did not have an approved nomination for the applicant. Accordingly, the applicant did not meet cl.482.212(1) and therefore did not meet cl.482.212.

4. The applicants applied to the Tribunal on 27 November 2018, for review of the delegate’s decision.

5. On 3 February 2022, Mrs Kamalpreet Kaur appeared before the Tribunal via telephone on behalf of the applicants, to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Sonam Mohan (the nominator) in the related matter for the nomination review application (AAT Case file 1830832). The related matters were heard concurrently in a combined hearing.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. 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 telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

7. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of clause 482.212(1).

   Requirement for an approved nomination

10. 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.

11. The nominating employer ASMT Pty Ltd applied to the Department for approval of a nomination in relation to the occupation of Chef (ANZSCO 351311). That nomination was refused by the Department on 10 October 2018 and consequently the applicants’ visa applications were refused.

12. ASMT Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1830832). On 11 February 2022, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination. Therefore, the applicant satisfies cl.482.212(1)(a) of Schedule 2 to the regulations.

13. The Tribunal is satisfied from the Department’s records that ASMT Pty Ltd was approved as a standard business sponsor on 26 October 2021 to 26 October 2026.

14. Accordingly, the Tribunal is satisfied that the nominator is an approved sponsor and was at the time that the nomination was approved and that the approved nomination has not ceased.

15. As the requirements of clauses 482.212(1)(a), (b) and (c) are satisfied, accordingly the requirements in cl.482.212(1) are met as a whole.

16. The second named applicant (Mr Rajwinder Singh Kharoud) applied on the basis of being a member of the family unit of the first named applicant (Mrs Kamalpreet Kaur). The application by Mr Rajwinder Singh Kharoud will be determined by reference to the outcome of Mrs Kamalpreet Kaur’s application on remittal to the Department for consideration.

    Jurisdiction in relation to the third named review applicant

17. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of the Act, or in limited circumstances, not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions.

18. Evidence before the Tribunal indicates that the third named applicant (Master Gurbaaz Singh Kharoud) was not subject to a decision by the Department as he was not included in his parent’s application lodged with the Department on 9 August 2018. There is no evidence before the Tribunal to support that an application has been subsequently lodged on behalf of Master Gurbaaz Singh Kharoud nor a decision made by the Department in regard to Master Gurbaaz Singh Kharoud. Therefore, at the time the review application was lodged with the Tribunal, no relevant decision had been made by the Department in regard to Master Gurbaaz Singh Kharoud.

19. As no reviewable decision in regard to Master Gurbaaz Singh Kharoud had been made at the time the review application was lodged, it follows that the review application on behalf of Master Gurbaaz Singh Kharoud was not properly made and as such the Tribunal does not have jurisdiction in regard to Master Gurbaaz Singh Kharoud.

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

    DECISION

21. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

    ·cl. 482.212(1) of Schedule 2 to the Regulations.

    ·The Tribunal does not have jurisdiction in this matter in relation to the third named applicant.

    Karen McNamara
    Member