Kim (Migration)

[2024] AATA 3708

Kim (Migration) [2024] AATA 3708 (3 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jee Hae Kim

REPRESENTATIVE:  Ms Dow Woo Park (MARN: 0741800)

CASE NUMBER:  2211331

HOME AFFAIRS REFERENCE(S):          BCC2021/2236230

MEMBER:Alan McMurran

DATE:3 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 03 October 2024 at 1:47pm

CATCHWORDS   
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Short-term stream – Cafe or Restaurant Manager – applicant has not communicated with the Tribunal for this review – was not the subject of an approved nomination as required – Tribunal has no information of any nomination outcome which might be favourable to the applicant – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cl 482.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 5 August 2022 for review of a decision made by a delegate of the Minister for Home Affairs on 20 July 2022 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, Ms Jee Hae Kim, a citizen of the Republic of Korea, applied for the visa on 22 November 2021. 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.

3. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Cafe or Restaurant Manager (ANZSCO 141111).

4. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations, because the applicant was not the subject of an approved nomination.

   No Hearing

5. The applicant has not communicated with the Tribunal for this review since lodgement of the review application.

6. On 12 September 2024, the Tribunal sent a letter to the applicant inviting her to provide information. The letter informed the applicant that the Regulations require the applicant to meet the criteria for an approved nomination.

7. The applicant was requested to provide any information in response by 26 September 2024. The applicant did not respond by the due date, or at all. The Tribunal has waited until 3 October 2024, but has heard nothing from the applicant or from any person on her behalf.

8. Section 360(3) of the Act provides that the applicant is not entitled to appear before the Tribunal where the applicant is invited to give information under section 359C of the Act, but has failed to do so before the time for giving the information has passed, and in which circumstances, the Tribunal may proceed to make a decision on the review without taking any further action to obtain the information.

9. The applicant was represented in relation to the review by her lawyer, a registered migration agent. The Tribunal has checked the applicant’s record which shows that the address for notifications from the Tribunal has not changed, and remains recorded as the same lawyer since 5 August 2022. No communication has been received from the lawyer concerning the application. A check of the Tribunal records shows the applicant was correctly notified by email at the address recorded for communicating with her, and there is no information indicated to show the communication was not received or returned.

10. As the applicant has not responded by the due date for giving information, the Tribunal has proceeded to a decision on the review without taking any further action to obtain information from the applicant or her representative.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant can meet cl 482.212(1) of Schedule 2 to the Regulations.

13. The Tribunal has had regard to the information from the Tribunal file and the related Department file for the visa application. The applicant has provided a copy of the delegate’s decision on the visa made 20 July 2022.

    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 is aware from the Department decision that she does not have an approved nomination from the sponsor, WWG Cooperation Pty Ltd.

16. There is no information before the Tribunal, and none provided by the applicant, to indicate the status of her employment, or whether the sponsor intends to continue her employment or seek any review of a nomination refusal.

17. In any event, the time for lodgement of any review by the nominator has now past, and the Tribunal has no information of any nomination outcome which might be favourable to the applicant. There is further no information before the Tribunal that the applicant has sought another visa or is seeking any deferral or adjournment of this review process pending another outcome.

18. The Tribunal has no discretion to waive the formal requirements in the Act and Regulations for the case at hand. Accordingly, the Tribunal is unable to find in the applicant’s favour and the Department’s decision must be affirmed.

19. The Tribunal finds that the requirements of cl 482.212(1) are not met.

    Conclusion

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

    DECISION

21. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

    Alan McMurran
    Member