Liu (Migration)

[2024] AATA 1007

Liu (Migration) [2024] AATA 1007 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chao Liu

CASE NUMBER:  2103930

HOME AFFAIRS REFERENCE(S):          BCC2020/893150

MEMBER:K. Chapman

DATE:5 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 05 April 2024 at 10:54am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Café or Restaurant Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 10 March 2021, to refuse to grant the applicant a Temporary Skill Shortage (Class GK) visa, pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’). The applicant applied for the visa on 8 January 2021.

2. At the time of application, 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 matter, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111). The applicant’s position was nominated by Hui Peng Pty Ltd (‘the nominator’).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations, because he was not the subject of an approved nomination as required. On 27 March 2021, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with the application for review.

4. On 21 February 2024, the Tribunal wrote to the applicant inviting him to attend a review hearing by telephone scheduled for 10:30am on 7 March 2024. The ‘Invitation to Attend a Hearing’ clearly advised that if the applicant failed to attend the scheduled review hearing by not answering his telephone, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it. The Invitation also requested the applicant to submit a ‘Response to Hearing Invitation’ outlining matters such as any witnesses which may be required. He failed to do so.

5. On 29 February 2024 and 6 March 2024, the Tribunal sent automated messages by short message service (SMS) to the mobile telephone number of the applicant listed in the application for review. These messages reminded the applicant of the scheduled review hearing. No automated error message was received by the Tribunal in relation to these messages.

6. On 6 March 2024 at 1:24pm, the applicant sought a postponement of the scheduled review hearing. He contended that he thought the SMS message he received was a ‘scam message’ until he checked his email. The Tribunal carefully considered the applicant’s request but declined it, given the confined nature of the subject matter pertinent to the review, in combination with him having been duly notified of the hearing by SMS and email. On the afternoon of 6 March 2024, the Tribunal advised the applicant in writing that his hearing postponement request was declined.

7. On 7 March 2024, the applicant failed to attend the scheduled review hearing. He did not answer his telephone when called by the Tribunal Registry to commence the hearing, nor did he respond to additional telephone calls that left messages for him. Indeed, the applicant has not displayed the courtesy to respond to any of the Tribunal’s attempts to contact him on 7 March 2024.

8. On 11 March 2024, the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting him to provide comments on, or response to, the following information:

   a.“The application for approval of the nominated position made by Hui Peng Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but subsequently withdrew their application for review (see AAT matter 2102163). This means that the nominator’s application for the nominated position has not been approved.”

9. The Tribunal is satisfied that this invitation was properly despatched to the applicant’s email address. The due date for response to this invitation was 25 March 2024. No response to the invitation, pursuant to s 359A of the Act, has been received by the Tribunal at the time of this decision.

10. It is apparent that the applicant was invited to attend a review hearing and failed to do so. Additionally, he was invited to respond to information in accordance with s 359A of the Act and failed to do so within the prescribed period. In these circumstances, the Tribunal may make its decision upon the review application without taking any further action to allow or enable the applicant to appear before it, and without taking any further action to obtain a response to the relevant information: s 359C of the Act.

11. The Tribunal has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that it is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18, regarding the reasonableness of any request for an adjournment. The Tribunal has accordingly carefully considered all the circumstances pertaining to the present application for review, in determining whether to grant an adjournment, or to provide additional time to submit material.

12. Given the lack of prospects of success of the application for review, the ample notice provided to the applicant to attend the scheduled review hearing and his lack of response to the efforts to contact him, the Tribunal has decided to make its decision on the review without taking any further steps to enable the applicant to provide further material or to appear before it.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    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 it has not ceased.

16. The Tribunal notes that the nomination of the applicant for the position of Café or Restaurant Manager (ANZSCO 141111) by Hui Peng Pty Ltd (‘the nominator’) has not been approved. Accordingly, the Tribunal finds that there is not an approved nomination of an occupation relating to the applicant, by a standard business sponsor, that has not ceased. Therefore, the requirements of cl 482.212(1) are not met.

17. For the reasons expressed above, the Tribunal finds that the requirements for the Subclass 482 visa in the Short-term stream have not been satisfied. No claims have been made in respect of the other streams for the visa and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams. Accordingly, the decision under review must be affirmed.

    DECISION

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

    K. Chapman
    Member