Li (Migration)

[2024] AATA 701

Li (Migration) [2024] AATA 701 (25 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hongtao Li

REPRESENTATIVE:  Mr Degong Yang (MARN: 1684211)

CASE NUMBER:  2113656

HOME AFFAIRS REFERENCE(S):          BCC2020/2822463

MEMBER:Penelope Hunter

DATE:25 March 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 25 March 2024 at 11:35am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – engineering technologist – related position nomination refused and application for review withdrawn – no response to invitation to comment or hearing invitation, and no appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

CASE
Hasran v MIAC [2010] FCAFC 40

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 28 September 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 15 December 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 to work in the nominated occupation of Engineering Technologist.

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(1) of Schedule 2 to the Regulations. This is because the related nomination by the applicant’s sponsoring employer was not approved. A copy of the decision record of the delegate has been provided to the Tribunal with the review application.

4. On 19 February 2024, the applicant was invited to a hearing before the Tribunal on 21 March 2024 to give evidence and present arguments.

5. On 7 March 2024, the Tribunal then wrote to the applicant pursuant to the provisions of s 359A of the Act and invited them to comment or respond to information at the hearing on 21 March 2024. The information identified was that on 22 September 2023, the Tribunal accepted a withdrawal of the review application lodged by the applicant’s sponsoring employer, FIB ELECTRICAL PTY LTD. The Tribunal explained the relevance of the information to the applicant and that if it relied on the information it may find that the relevant nomination had not been approved and the applicant would not be able to meet the requirements of cl 481.212(1) of Schedule 2 to the Regulations. Consequently, the decision under review may be affirmed.

6. The applicant did not attend the hearing on 21 March 2024. The Tribunal made several unsuccessful attempts to contact them. They did not respond to the hearing invitation or the Tribunal’s invitation to comment dated 7 March 2024.

7. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing. The invitation further set out the number on which the Tribunal would contact the applicant. The hearing invitation further stated that if they did not appear at the Tribunal hearing, the Tribunal may make a decision on the review application with taking further action to allow or enable them to appear.

8. Furthermore, as the applicant did not appear at the hearing, or provide any response to the invitation to comment of 7 March 2024, s 359C of the Act applies and pursuant to s 360(3) of the Act the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. The applicant applied for a Subclass 482 visa on the basis of a nomination in the position of Engineering Technologist with their sponsoring employer FIB ELECTRICAL PTY LTD. On 19 August 2021, this nomination was refused by the Department in the first instance.

12. The information before the Tribunal, as provided to the applicant for comment pursuant to the provisions of s 359A of the Act, is that on 22 September 2023, upon review the Tribunal accepted a withdrawal of the review application by FIB ELECTRICAL PTY LTD. The applicant has not presented any information to the Tribunal to dispute this information. This means that the original decision of the Department has not changed and consequently the Tribunal finds that the relevant nomination identified in the applicant’s visa application has not been approved.

13. It follows that the applicant does not meet the requirements of cl 482.212(1) of Schedule 2 to the Regulations.

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

    DECISION

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

    Penelope Hunter
    Member