Kodsi (Migration)

[2022] AATA 4613

Kodsi (Migration) [2022] AATA 4613 (10 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nabil Kodsi

CASE NUMBER:  2110147

HOME AFFAIRS REFERENCE(S):          BCC2020/1533637

MEMBER:Stephen Witts

DATE:10 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 10 November 2022 at 10:51am

CATCHWORDS  
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Occupational Therapist – 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 

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 26 July 2021 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 applied for the visa on 12 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 applicant is seeking the visa in the medium-term stream.

3. 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 Of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is the subject of an approved nomination.

4. The applicant appeared before the Tribunal on 10 November 2022 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. The Tribunal notes that it contacted the applicant on 16 September 2022 inviting the applicant to comment on or respond to certain information which the Tribunal considered would, subject to the applicant’s comments or response, be the reason or part of the reason for affirming the decision under review. It was stated by the Tribunal that the application for approval of the nominated position made by Patient Handling Pty Ltd (the nominator) was refused by a delegate of the Minister and that the nominator sought a review of that decision but that this application was subsequently withdrawn and that that meant that the nominator’s application for the nominated position had not been approved.

8. The applicant was further informed that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination, and that if this information is relied on the Tribunal may find that the position specified in the visa application is not the subject of an approved nomination and that this would mean that the applicant did not satisfy the requirement for the grant of the visa and that the Tribunal must affirm the decision under review. It was stated that a response must be received by 30 September 2022.

9. The applicant was further informed that if the Tribunal did not receive comments or response by 30 September 2022 that the Tribunal may make a decision regarding the review without taking any further action to obtain the views of the applicant and that therefore the applicant has lost any entitlement to appear before the Tribunal to give evidence of present arguments.

10. The Tribunal notes that on 6 October 2022 it received the following response from the applicant:

    “I am writing to you as I was worried to not receive any correspondence about my appeal for my refused application for the visa 482.
    
    As my employer sold the company that was sponsoring me, he was the only one to receive the correspondences from the Tribunal of Appeal but since the company was sold, he never forwarded me anything as I have a new employment contract with another company.
    
    I am very concerned because after calling the tribunal, I have been notified that a notification letter was sent and I had the 30/09/2022 to answer back to this notification.
    As mentioned, my ex employer never forwarded me any correspondence and I am in a very stressful and hopeless situation.
    
    During my review status awaiting time, I am on a bridging visa A. I also started a skill assessment with the Occupational Therapy council as a registered Occupational therapist and I am awaiting the answer from the board so as to do my expression of interest to the immigration and apply for the 190 skilled visa.
    
    I would like to attend to the hearing of the tribunal of appeal related to my case and have the chance to explain the reasons and circumstances of my difficult situation please.I have an immigration lawyer and I am attaching to this email the form of "change of contact" and appointment of representative and authorised recipient. I just need her signature and I will send back to you the completed form but I’ve still attached the representative form for you to have her contact details if needed)
    
    Please if you could come back to me as soon as possible to let me the opportunity to explain my situation and ask for a delay about this appeal refusal.”

11. At the hearing the Tribunal had a discussion with the applicant regarding his application.

12. The applicant stated that he understood that he no longer had an approved nomination as his previous employer sold the business and that he no longer worked for this employer. He further stated that he first arrived in Australia in 2019 on a working holiday visa and worked for his nominator as an occupational therapist for a period of time stating that he then subsequently resigned and now works for a different company.

13. He stated that this company is going through the procedure to sponsor him and that he is applying for a skilled visa and hopes to have this application finalised very soon. He stated that he believed that his original nominator subject to this matter incorrectly applied for a business visa for him applying for a short-term visa where his skill was not listed on the relevant skill list.

14. The Tribunal had a detailed discussion with the applicant noting that this matter is dealing with his original application with this business and that on that basis he no was longer working for his original nominating sponsor, Patient Handling Pty Ltd. The applicant confirmed this was the case.

    Requirement for an approved nomination

15. 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.

16. On the basis of the above the Tribunal finds that the applicant is not the subject of an approved nomination.

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, the decision under review must be affirmed

    decision

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

    Stephen Witts
    Member