Keay (Migration)

[2019] AATA 6085

Keay (Migration) [2019] AATA 6085 (30 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Christopher Lee Keay

Mrs Rebbecca Georgina Keay

Master Christopher Malcom Simon Keay

CASE NUMBER:  1915677

HOME AFFAIRS REFERENCE(S):          BCC2019/1945207

MEMBER:Stavros Georgiadis

DATE:30 December 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 30 December 2019 at 2:40pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Bricklayer – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

CASES
VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280

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 3 June 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 16 April 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 (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 Bricklayer ANZSCO 331111.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.482.212 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

4. The applicants appeared before the Tribunal on 9 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Christopher Keay (Snr) on behalf of the sponsor employer in the related matter AAT case file 1912533 refusing the nomination.  The nominating employer is a partnership between Mr Christopher Keay (Snr) and his spouse Ms Diane Keay, who are the parents of the applicant in these proceedings.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The material issue in this case is whether the applicant is the subject of an approved nomination.

   Requirement for an approved nomination

8. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved sponsor at the time of approval, and has not ceased.

9. The Tribunal is satisfied, on the documentary and oral evidence before it, that the applicant is the nominee in the application for approval by the partnership business between Mr Christopher Keay (Snr) and his spouse Ms Diane Keay. The partnership, C KEAY & D KEAY, is engaged in providing bricklaying services to various builders in Western Australia. The business is located in Rockingham in metropolitan Perth. The business employs labourers to assist the bricklayers some of whom are engaged as contractors and others as employees. At the time of application, the applicant was engaged as a contractor bricklayer with the partnership.

10. On 3 May 2019 the applicant was advised by the Department that his sponsoring employer, C KEAY & D KEAY, did not have an approved nomination in place for him. The applicant was invited to comment regarding the adverse information or withdraw the application in writing, and was provided with the prescribed period to do so.  No response was received from the applicant within the time frame allowed.

11. On 24 December 2019 the Tribunal decided to affirm the decision under review in respect of the applicant’s nomination under s.140GB of the Act and r.2.72 of the Regulations in the related AAT case-file number 1912533 for the reasons set out in the Decision Record of that date refusing the nomination.

12. In accordance with the procedure under s.359AA of the Act the Tribunal put to the applicant at the hearing that it wished to discuss information that, subject to the response, would be the reason or part of the reason, for affirming the decision to refuse the applicants the Subclass 482 visas. The Tribunal explained that they would be invited to comment on, or respond to, this information and would be entitled to seek additional time to comment or respond, which the Tribunal would consider.

13. The Tribunal put to the applicants that in circumstances where the Tribunal affirmed the decision refusing approval of the nomination of the position to which the application relates, the applicant and the secondary visa applicants would not be able to meet essential criteria to satisfy cl.482.212 for the visas and the secondary criteria.  The Tribunal put that this information is relevant to the review because without evidence of the approval of the relevant nomination for the position, the applicants could not satisfy the provisions of clause 482.212(1) of the Regulations for the grant of the Subclass 482 visas sought.

14. The applicant responded straight away in relation to the information. The applicant confirmed to the Tribunal when asked, that the applicants understand and accept that in circumstances where there is no approved nomination, it would not be open for their visa applications to be successful as an approved nomination for the position in relation to the applicant, is one of the essential criteria for the grant of the visas (cl.482.212(1)).

15. The Tribunal has not returned the matter for any further evidence or submissions since the hearing of 8 December 2019 as in these circumstances, and in view of the authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58) it would be ‘futile’ as ‘no useful result could ensue’ because the visas cannot be granted in the absence of an approved nomination. The Tribunal considers that there is no practical injustice in not returning the matter back to the Tribunal following its decision refusing the nomination.

16. Having considered the available evidence before it, the Tribunal finds that at the time of this decision, the applicant is not the subject of an approved nomination and has not withdrawn this application in writing.  Accordingly, the Tribunal finds that the applicant does not meet the requirements of subclause 482.212(1).

17. For these reasons the requirements of cl.482.212(1) are not met.

18. As one of the essential requirements for the visa is not met by the applicant, the decision under review must be affirmed in respect of all applicants including members of the same family unit as the applicant listed as the second and third named visa applicants in the combined application.

    DECISION

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

    Stavros Georgiadis
    Member