Kundu (Migration)

[2022] AATA 3473

Kundu (Migration) [2022] AATA 3473 (19 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjoy Kundu

REPRESENTATIVE:  Mr Siddque Abu

CASE NUMBER:  1911919

HOME AFFAIRS REFERENCE(S):          BCC2019/1122518

MEMBER:Alan McMurran

DATE:19 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 19 August 2022 at 4:39pm

CATCHWORDS  
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Accountant (General) – 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 lodged 14 May 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 26 April 2019 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 visa applicant, Mr Sanjoy Kundu,  applied for the visa on 6 March 2019. The applicant is a 33-year-old citizen of Bangladesh.

3. 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.

4. In this case, the applicant is nominated by Royal Kitchens and Bathrooms Pty Ltd (“the nominator”) seeking the visa in the Medium-term stream to work in the nominated occupation of Accountant (General) ANZSCO 221111.

5. 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 nomination identified in the application has not been approved.

6. The applicant appeared before the Tribunal on 28 June 2022 in a combined hearing with a review of the refusal of the nomination[1]. The director of the nominator and the nominee were both present to give evidence and present arguments. The hearing was conducted virtually by video, in accordance with the Tribunal’s practice direction, and no objection was taken to the form of the hearing.

   [1] Tribunal case 1909493

7. The applicant was represented in relation to the review. The representative, Mr Siddique, also appeared and made submissions.

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 this case is whether the applicant meets the criteria for the grant of the visa and in particular, whether the nomination identified in the application has been approved.

   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. Following the hearing on 28 June 2022, the Tribunal received further submissions on behalf of the nominator and awaited the outcome of a waiver request made by the nominator to the Minister. The waiver request was subsequently refused, and on 15 August 2022 the Tribunal made a decision in case number 1909493. The Tribunal decided to affirm the decision not to approve the nomination.

12. On 16 August 2022, the Tribunal sent a natural justice letter to the visa applicant inviting him to respond. The letter provided particulars that on 15 August 2022, the Tribunal had affirmed the delegate’s decision not to approve the nomination in the related nomination case. The applicant was requested to respond on or before 30 August 2022.

13. On 18 August 2022, the representative for the visa applicant responded by email to the Tribunal, stating that: “The applicant concedes that the applicants review application is subject to the outcome of the nomination approval (BCC 2019/1122389). And now the Tribunal has affirmed the decision dated 15 August 2022. Hence, the applicant requests the Tribunal to determine the current review application.”

14. The Tribunal has proceeded to finalise the application and finds therefore that as the visa applicant is not the subject of a nomination which has been approved, the applicant does not meet the criteria in cl 482.212(1) of Schedule 2 to the Regulations.

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

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

    decision

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

    Alan McMurran
    Member