Kaur (Migration)

[2024] AATA 69

Kaur (Migration) [2024] AATA 69 (17 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sandeep

Kaur

Mr Surinder Kumar
Miss Shubhpehal

Heer

Master Aelish Heer

REPRESENTATIVE:  Mr Neeraj Sharma (MARN: 0746230)

CASE NUMBER:  2103775

HOME AFFAIRS REFERENCE(S):          BCC2020/1477515

MEMBER:Karen McNamara

DATE:17 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 17 January 2024 at 2:15pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Cook – no approved nomination – standard business sponsorship cancelled – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 140, 359
Migration Regulations 1994, Schedule 2, cls 482.212, 482.312

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 March 2021, 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 3 May 2020. 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 and first named visa applicant, Mrs Sandeep Kaur (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Cook (ANZSCO 351411).

3. On 12 March 2021, the delegate refused to grant the visas because Mrs Sandeep Kaur did not meet cl.482.212(1) of Schedule 2 to the Regulations, which require the applicant to be the subject of an approved nomination. The delegate found that the prospective sponsoring employer Dugg Pty Ltd (the nominator) did not have an approved nomination.

4. Accordingly, as the nomination application had been refused, the delegate found that cl.482.212 (1) was not met and therefore the applicant did not meet cl.482.212 of Schedule 2 to the Regulations.

5. The delegate also found that the second named applicant (Mr Surinder Kumar), third named applicant (Miss Shubhpehal Heer) and fourth named applicant (Master Aelish Heer) could not be granted a Subclass 482 visa, as they did not meet the secondary visa criterion (cl.482.312(1)) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 457 or 482 visa.

6. The applicants lodged an application for review with the Tribunal on 24 March 2021. A copy of the delegate’s decision was provided to the Tribunal. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

7. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of cl.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. On the 2 January 2024, the Tribunal affirmed the decision refusing the approval of the nomination made by Dugg Pty Ltd, in respect of Mrs Sandeep Kaur. As the nomination has been refused, the applicant is not the subject of an approved nomination and therefore does not meet the requirements of cl.482.212(1) and as such cl.482.212 is not met.

12. On 2 January 2024, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient and representative). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.

13. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Dugg Pty Ltd, in addition to Department of Home Affairs records showing the nominator’s, approval as a standard business sponsor was cancelled on 11 May 2023.

14. The Tribunal explained that this information is relevant to the applicant meeting cl.482.212(1), which requires the nomination to be approved including the requirement the person who made the nomination was an approved sponsor at the time the nomination was approved.  The Tribunal further noted as the nomination has been refused and the nominator is no longer approved as a standard business sponsor, the Tribunal may find that the application does not satisfy the requirements of cl.482.212(1) and will affirm the decision under review.

15. The invitation was sent to the authorised recipient/representative at the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 16 January 2024, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

16. On 15 January 2024, the authorised recipient/representative responded to the Tribunal stating “ We request you to decide on this case on the basis of available information to you i.e. according to the information submitted to the Department.”

17. In accordance with the authorised recipient/representative’s request, the Tribunal has resolved this matter on the papers having consideration to the totality of evidence before it.

18. Clause 482.212 (1) as applicable in this case, requires that the nomination identified in the application has been approved under section 140GB of the Act. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.482.212(1) of Schedule 2 to the Regulations.

19. As the first named applicant does not meet an essential criterion for the grant of a subclass 482 visa, cl.482.212 of Schedule 2 to the Regulations is not met.

20. There is no evidence before the Tribunal to indicate that the secondary applicants meet the primary requirements for grant of the visa.

21. In relation to the second named applicant (Mr Surinder Kumar), third named applicant (Miss Shubhpehal Hee) and fourth named applicant (Master Aelish Heer), the Tribunal notes that cl.482.312 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 482 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

22. As the primary applicant (Mrs Sandeep

    Kaur) has not met the requirements for the grant of a Subclass 482 visa and is not the holder of a Subclass 482 visa, it follows that the second named applicant (Mr Surinder Kumar), third named applicant (Miss Shubhpehal Heer) and fourth named applicant (Master Aelish Heer), as a member of Mrs Sandeep Kaur’s

    
    family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named, third named and fourth named applicants do not satisfy cl.482.312 of Schedule 2 to the Regulations.

23. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

    DECISION

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

    Karen McNamara
    Member