Kim (Migration)

[2022] AATA 3578

Kim (Migration) [2022] AATA 3578 (30 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mrs Miji Kim

Mr Chaehyun Lim

Miss Hael Lim

REPRESENTATIVE:  Mr Abu Siddque

CASE NUMBER:  1911421

HOME AFFAIRS REFERENCE(S):          BCC2019/1413460

MEMBER:K. Chapman

DATE:30 August 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 30 August 2022 at 6:24pm 

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Short-term stream – Primary Products Inspectors – applicant failed to provide requested information – approval of the nomination ceased –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 2.75, Schedule 2, cls 482.212, 482.312

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 23 April 2019, to refuse to grant the applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The first named applicant applied for the visa on 20 March 2019, including the second and third named applicants in the application. 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 first named applicant (hereafter ‘the applicant’) is seeking the visa in the Short-term stream to work in the nominated occupation of Primary Products Inspectors (not elsewhere classified) (ANZSCO code 311399). 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(3) of Schedule 2 to the Regulations, due to dissatisfaction that she has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

4. On 7 May 2019, the applicant applied to the Tribunal for review of the visa refusal decision. The applicant submitted a copy of the delegate’s decision with her application for review. Since the application for review was lodged, new information came to the attention of the Tribunal. On 3 August 2022, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, inviting her to provide comments on, or response to, the following information:

   a.“Department records indicate that on 12 February 2021 Pakit Adelaide Pty Ltd, the nominator regarding your visa application, had its standard business sponsorship cancelled.”

5. The Tribunal’s correspondence outlined that this information is relevant to the review, as it tends to suggest that there is not an approved nomination of an occupation relating to the applicant by a standard business sponsor, as the approval of the nomination ceased pursuant to regulation 2.75(2)(f) of the Migration Regulations 1994 (Cth). The correspondence also noted that if the Tribunal relies on this information in making its decision, it may affirm the decision under review as the applicant would not meet the requirements of cl.482.212(1)(c) of Schedule 2 to the Migration Regulations 1994 (Cth).

6. The Tribunal is satisfied that this invitation was properly despatched to the email address of the applicant’s solicitor (‘the representative’). The due date for response to this invitation was         17 August 2022. No response to the invitation has been received by the Tribunal at the time of this decision.

7. Where the applicant is invited to respond to information in accordance with s.359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(2) of the Act.

8. The Tribunal has carefully considered whether to afford additional time to the applicant to respond to the information in the s.359A invitation, or to provide further material in support of their application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

9. The Tribunal has taken into account that the applicant has been aware since around 23 April 2019 of the reasons for the visa application being refused, and also that the implications of not responding to the information in the invitation from the Tribunal of 3 August 2022 were set out in that correspondence. Additionally, the Tribunal notes that no contact has been made with it by the representative or the applicant since 7 May 2019.

10. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to respond to the s.359A invitation and address the central issues arising in the application for review. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain the applicant’s response to the invitation.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant meets the requirements of cl.482.212(1)(c).

    Requirement for an approved nomination that has not ceased

13. Clause 482.212(1)(c) requires that the nomination identified in the visa application is approved and has not ceased under regulation 2.75.

14. As outlined in the invitation pursuant to s.359A of the Act, Department records indicate that on 12 February 2021 Pakit Adelaide Pty Ltd, the nominator regarding the Subclass 482 visa application, had its standard business sponsorship cancelled. Therefore, the nomination ceased under regulation 2.75.

15. Accordingly, the Tribunal finds that the nomination has ceased and the requirements of cl.482.212(1)(c) are not met. It is, therefore, unnecessary for the Tribunal to make further findings on any other criteria for the Subclass 482 visa.

16. For the reasons expressed above, the Tribunal finds that the requirements for the Subclass 482 visa in the Short-term stream have not been satisfied. No claims have been made in respect of the other streams for the visa and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams.

17. Given that the applicant has not met the requirements for the grant of a Subclass 482 visa and is not the holder of a Subclass 457 or Subclass 482 visa, it follows that the second and third named applicants do not satisfy the requirements of cl.482.312. The Tribunal so finds.

    decision

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

    K. Chapman
    Member