Lin (Migration)

[2024] AATA 694

Lin (Migration) [2024] AATA 694 (22 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sheng

Lin

Mrs Yan Lin
Miss Qidian

Lin

Master Qien Lin

REPRESENTATIVE:  Mr Wang Xiao (MARN: 1466166)

CASE NUMBER:  2104695

HOME AFFAIRS REFERENCE(S):          BCC2020/1829309

MEMBER:Karen McNamara

DATE:22 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 22 February 2024 at 12:05pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Marketing Specialist – subject of an approved nomination – decision on the papers – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 360
Migration Regulations 1994 (Cth), 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 13 April 2021, 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 1 July 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 primary visa applicant, Mr Sheng Lin (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Marketing Specialist (ANZSCO 225113) with the proposed period of employment up to one year.

3. On 13 April 2021, the delegate refused to grant the visas because the applicant did not meet cl.482.212(1) of Schedule 2 to the Regulations, which require the applicant to be the subject of an approved nomination. The delegate found that the prospective sponsoring employer LUXE2221 Pty Ltd (the nominator) did not have an approved nomination.

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 (Mrs Yan Lin), third named applicant (Miss Qidian Lin) and fourth named applicant (Master Qien Lin) could not be granted a Subclass 482 visa, as they did not meet the secondary visa criterion (cl.482.312(1)) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 457 or 482 visa.

6. The applicants lodged an application for review with the Tribunal on 13 April 2021. A copy of the delegate’s decision was provided to the Tribunal. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

7. On 15 December 2023, the Tribunal invited the applicants under s.360 of the Migration Act 1958 to appear before the Tribunal on 23 January 2024 at 12:00pm. The invitation requested the applicant to provide all documents intended to rely on to support the applicant’s case by 16 January 2024.

8. The applicant was requested to provide copies of bank statements showing receipt of salary from the nominator during the period November 2022 to December 2023, Notice of Assessments as issued by ATO for financial years 2022 & 2023 and the applicant’s most recent superannuation statement supporting payment of superannuation by the nominating business.

9. As at the time of this decision, the aforementioned information has not been provided to the Tribunal.

10. On 16 January 2024, the Tribunal wrote to the authorised recipient/representative via email advising as follows;

    ‘.. On 15 December 2023, the Tribunal sent a hearing invite.

    To date, the tribunal has not received any response. Please advise the Tribunal as soon as possible as to whether the applicant, Mr Sheng Lin, will be attending the hearing scheduled for 23 January 2024. If so, please be reminded that submissions of evidence are due 7 days prior to the date of the hearing..’

11. On 17 January 2024, the representative advised the Tribunal via email the following:

    ‘  Please see the attached form for your information. The current status is that the visa applicant is eager to attend the hearing, but I am still unable to contact the employer for the nomination application hearing which seems that the employer didn't want to attend. I haven't had this experience previously, any possible that the Menber [sic] can make decision based on all the documents we have provided?’

12. On 19 January 2024, the authorised recipient/representative via email advised the Tribunal as follows;

    ‘ I am writing in relation to the above application [sic] and our photo [sic] call this morning. I affirm my request for the Member to adjudicate on both the nomination and visa application appeal matters through documents. Thanks.’

13. In accordance with the authorised representative’s request, the Tribunal has resolved this matter on the papers.

14. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

17. 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.

18. On the 8 February 2024, the Tribunal affirmed the decision refusing the approval of the nomination made by LUXE2221 Pty Ltd, in respect of the applicant. As the nomination has been refused, the applicant is not the subject of an approved nomination and therefore does not meet the requirements of cl.482.212(1) and as such cl.482.212 is not met.

19. On 8 February 2024, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient and representative). 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 LUXE2221 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 the application does not meet the requirements of cl.482.212(1).

20. On 21 February 2024, the representative provided to the Tribunal a submission prepared by Mr Sheng Lin dated 20 February 2024, stating as follows;

    “.. I am writing in relation to the above AAT application and your previous

    correspondence.

    I understand that the review of subclass 482 nomination application has been
    refused. I still want to make the following comments:

    1.  I started to work for my employer from February 2017 as a Marketing Officer on

    Full Time base under subclass 457 scheme.

    2. I was performing all marketing related duties and responsibilities.

    3. I was initially working for MARRAMBEAT PTY LTD, trading as Belle Property

    South Hurstville (“BPSH”) which was established in or around December 2010.

    4. My employer’s name is Maurice Maroon.

    5. I understand that my employer changed his business name to LUXE2221 PTY

    LTD.

    6. Due to the reconstruction of MARRAMBEAT PTY LTD, the company started to

    transfer relevant business activities to LUXE2221 PTY LTD. The two companies
    have the same team, same management, same business model and activity but
    two different business names.

    7. I have been working as a Marketing Officer for MARRAMBEAT PTY LTD for more

    than 3 years on full time base that time and I kept working for my employer under
    LUXE2221 PTY LTD and my position was still be Marketing Officer as well with
    the same work duties as previously.

    8. I didn’t realise that my employer registered a new business which means that

    LUXE2221 PTY LTD has different ABN and ACN with MARRAMBEAT PTY LTD.

    9. I understand that the revenue of the new business, LUXE2221 PTY LTD when I

    lodged the subclass 482 visa application was less than $1 million which was new
    requirement for subclass 482 visa application. This was due to the reconstruction
    of the business which affected the business operation.

    10.There was not such requirement when I lodge the initial sponsor visa application.
    [Created on 22/02/2024 10:50:14
    11.The next year’s revenue of LUXE2221 PTY LTD increased to more than $1 million

    which satisfied the requirement.

    12.I have been working for employer and living in Australia for approximately 7 years.

    Our family had a new baby who was born in Australia as well.

    13.I sincerely wish the tribunal can consider the above circumstances.’[1]

    [1] Prepared and transcribed as submitted by applicant.

21. The Tribunal has carefully considered the applicant’s submission and notes the applicant’s response in regard to, the Tribunal’s decision to affirm the decision, not to approve the associated nomination matter.

22. Whilst the Tribunal is sympathetic to the applicant’s position, this is not a matter in which the legislation provides discretion. The Tribunal does not have any discretion to waive the requirement that the applicant is subject of an approved nomination. The Tribunal in conducting a merits review must come to the correct or preferrable decision on the basis of the information before it, and in accordance with the applicable law.

23. Clause 482.212 (1) as applicable in this case, requires that the nomination identified in the application has been approved under section 140GB of the Act. 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.

24. 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.

25. There is no evidence before the Tribunal to indicate that the secondary applicants meet the primary requirements for grant of the visa.

26. In relation to the second named applicant (Mrs Yan Lin), third named applicant (Miss Qidian Lin) and fourth named applicant (Master Qien Lin), 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.

27. As the applicant (Mr Sheng Lin) 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 (Mrs Yan Lin), third named applicant (Miss Qidian Lin), and fourth named applicant (Master Qien Lin), as a member of Mr Sheng Lin’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named, third named and fourth named applicants do not satisfy cl.482.312 of Schedule 2 to the Regulations.

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

    DECISION

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

    Karen McNamara
    Member