Liew (Migration)

[2022] AATA 1216

Liew (Migration) [2022] AATA 1216 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Ms San Nyok Liew

Mr Meng Wai Wong

Miss Xuan Han Ada Wong

REPRESENTATIVE:  Mr Brett Li (MARN: 9792769)

CASE NUMBER:  1833895

HOME AFFAIRS REFERENCE(S):          BCC2018/3042431

MEMBER:Karen McNamara

DATE:18 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2022 at 12:57pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Cafe or Restaurant Manager – nomination application associated with the position was not approved – decision under review affirmed

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

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 12 November 2018 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 13 August 2018. 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 primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Cafe or Restaurant Manager (ANZSCO – 141111).

3. The delegate in this case refused to grant the visa on the basis that Ms San Nyok Liew (the applicant) did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations which required Ms San Nyok Liew to be the subject of an approved nomination. The delegate found that the nomination lodged by Everise Food Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs on 12 October 2018.

4. Accordingly, as the nomination application had been refused, the delegate found that cl. 482.212(1) was not met and therefore the applicant did not meet cl.482.212 of Schedule 2 to the Regulations.

5. The delegate also found that the second named applicant, Mr Meng Wai Wong and third named applicant Miss Xuan Han Ada Wong could not be granted a Subclass 482 visa, as they did not meet the secondary visa criterion (cl.482.312) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 482 visa.

6. The applicants applied to the Tribunal on 19 November 2018 for review of the delegate’s decision.

7. On 13 January 2022, Ms San Nyok Liew appeared on behalf of the applicants before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Haiyan Zhang (the nominator) in the related matter for the nomination application (AAT Case file 1831337). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. During the hearing the Tribunal sought feedback from Ms San Nyok Liew and Ms Haiyan Zhang that they were satisfied with the interpretation and advised them to immediately bring to the Tribunal’s attention any concerns regarding the interpretation. Ms San Nyok Liew and Ms Haiyan Zhang advised that they were satisfied with the interpretation and did not raise concerns with the Tribunal during the course of the hearing.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

9. The applicant was represented in relation to the review. The representative attended the Tribunal hearing

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of clause 482.212(1).

    Requirement for an approved nomination

12. 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.

13. On the 1 February 2022, the Tribunal affirmed the decision refusing the approval of the nomination made by Everise Food Pty Ltd (the nominator) in respect of the applicant. As the nomination has been refused, the applicant does not satisfy cl. 482.212(1) and as such cl.482.212 is not met.

14. On 2 February 2022, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Everise Food Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.482.212(1) which requires the nomination to be approved. As the nomination has been refused, cl.482.212(1) is not met.

15. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response were not provided in writing by 16 February 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act.

16. The review applicants have not provided the comments within the prescribed period and no extension has sought or granted. In these circumstances, pursuant to s.359C(2) the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

17. At the hearing of 13 January 2022, the Tribunal told the applicant that a visa cannot be granted unless the relevant criteria specified in the Migration Act and Migration Regulations are satisfied and that in this case, the visa application is required to be subject to an approved nomination. In this instance there is no evidence before the Tribunal to suggest that the applicant’s visa application is subject to a nomination that has been approved and has not been subsequently withdrawn.

18. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.482.212(1) of Schedule 2 to the Regulations.

19. As the first named applicant does not meet an essential criterion for the grant of a subclass 482 visa, cl.482.212 of Schedule 2 to the Regulations is not met.

20. There is no evidence before the Tribunal to indicate that the second named or third named applicants meet the primary requirements for grant of the visa.

21. In relation to the second named applicant Mr Meng Wai Wong and third named applicant Miss Xuan Han Ada Wong, the Tribunal notes that cl.482.312 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 482 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

22. As the applicant has not met the requirements for the grant of a Subclass 482 visa and is not the holder of a Subclass 482 visa, it follows that the second named applicant Mr Meng Wai Wong and third named applicant Miss Xuan Han Ada Wong, as a member of Ms San Nyok Liew’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.482.312 of Schedule 2 to the Regulations.

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

    DECISION

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

    Karen McNamara
    Member