Machado De Castro (Migration)

[2022] AATA 2686

Machado De Castro (Migration) [2022] AATA 2686 (21 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Thiago Machado De Castro

Mrs Fernanda Mara Santana De Castro

Miss Maria Flor Santana De Castro

CASE NUMBER:  1902882

HOME AFFAIRS REFERENCE(S):          BCC2018/5066981

MEMBER:Alison Mercer

DATE:21 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 21 June 2022 at 2:47pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Short-term stream – Other Sports Coach or Instructor – applicant is not the subject of an approved nomination by an approved standard business sponsor – nomination identified in the visa application has not been approved – decision under review affirmed

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

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 21 January 2019 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 14 November 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 Other Sports Coach or Instructor (ANZSCO code 452317).

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, which requires that he is the subject of an approved nomination by an approved standard business sponsor. The delegate found that the applicant was not the subject of an approved nomination and had failed to respond to a natural justice letter sent to him about this issue by the Department. The delegate found that the applicant therefore did not meet cl.482.212(1) and did not meet cl.482.212 as a whole. The delegate also refused to grant the second and third named applicants subclass 482 visas on the basis that they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 482 visa, and there was no evidence that they met the primary visa criteria in their own right.

4. The Tribunal received a review application from the applicants on 8 February 2019. The review application was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Troy Sanders, as their representative and authorised recipient for correspondence.

5. On 3 March 2022, the Tribunal wrote to the applicants via their agent to invite them to attend a telephone hearing on 20 April 2022. On the same date, the Tribunal was advised that the applicants’ agent no longer acted for them, and that the applicants wished the Tribunal to correspond directly with them.

6. On 24 March 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act to invite them to provide comments on or a response to information held by the Tribunal that was potentially adverse to their case. The Tribunal advised them that the particulars of the information were that:

   ·in their subclass 482 visa application, the applicant was identified in a nomination made by his proposed employer, Checkmat Tweed Heads Australia Pty Ltd, for the occupation of Other Sports Coach or Instructor;

   ·their visa application was refused by a Department officer who determined that the applicant did not meet cl.482.212, which requires that he was the subject of an approved nomination by an employer who was an approved standard business sponsor, and the nomination had not ceased. The delegate found that Checkmat Tweed Heads Australia Pty Ltd did not have an approved nomination of the applicant, and therefore he did not meet the requirements to be granted a subclass 482 visa in the Short Term stream (and had not made any claims against any other stream). The delegate also refused to grant subclass 482 visas to the second and third named applicants as the delegate found that they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 482 visa, and there was no evidence that they met the primary visa criteria in their own right.

   • Checkmat Tweed Heads Australia Pty Ltd lodged an application for review with the Tribunal of the decision to refuse to approve its nomination of Mr Machado De Castro for a subclass 482 visa;
   • on 22 November 2021, the Tribunal (differently constituted) made a decision that it had no jurisdiction to review the Department’s decision to refuse the nomination made by Checkmat Tweed Heads Australia Pty Ltd because the company withdrew its review application on 5 November 2021; and
   • this indicated that the applicant was not presently the subject of an approved nomination by an approved standard business sponsor.

7. The Tribunal advised that this information would be the reason or part of the reason for it to affirm the decision made by the Department to refuse to grant the applicants subclass 482 visas because one of the criteria contained within subclass 482 (namely, clause 482.212), required that at time of decision, the primary applicant was the subject of an approved nomination by a standard business sponsor. The Tribunal noted that it appeared that he was not, and also that it was the legal view of the Tribunal that any new nomination of the applicant, whether by Checkmat Tweed Heads Australia Pty Ltd, or another employer, could not satisfy cl.482.212.

8. The Tribunal requested that the applicants provide their response or comments (or seek an extension of time to do so by 7 April 2022, or they would lose their entitlement to a Tribunal hearing and the Tribunal might proceed to make its decision on the available evidence.

9. On 7 April 2022, the Tribunal received a response from the applicants, as follows:

   …

   To whom it may concern,

   Firstly I would like to thank you for taking the time to read this. I am writing in response to the email received on March 24, 2022 regarding my case number 1902882.

   Thank you for the opportunity to respond.

   After my 482 Visa with Check Mat was denied, I continued to invest in my profession as a Brazilian Jiu Jitsu instructor. A profession that I dedicated myself to since 2015. I continued to study, train, and participate in major Jiu Jitsu competitions, including the biggest Championship in Australia, called "Pan Pacific Australia", where I was able to achieve second place in the Black Belt division.

   The Pan Pacific is considered one of the most prestigious and well known Brazilian Jiu Jitsu championships in the World and I was extremely happy and humbled to be able to achieve that goal. This was the last championship before the pandemic.

   During this time, my wife Fernanda Mara Santana de Castro had a new job opportunity and wanted to build her career. I fully supported her decision, so I dedicated myself to the education of my daughter, Maria Flor Santana de Castro, so I could help my wife dedicate herself to her new job and achieve her professional goals.

   During this period, I also started looking for a new Brazilian Jiu Jitsu school that would sponsor me and give me the opportunity to continue my journey as a Brazilian Jiu Jitsu instructor. That was when I received a job offer from Gracie Barra Shellharbour, a well regarded school that currently employs 7 other instructors and has more than 400 students. The school has been operating for more than 7 years and I would have the opportunity to teach the kids (4yo-9yo), Juniors (10yo-16yo) and adult classes.

   Gracie Barra Shellharbour has already applied with a Nomination for my 482 Visa and we will proceed with my application in a few days. I will start my job at Gracie Barra Shellharbour once/if the visa is approved.

   My goal has always been to improve people’s lives through Jiu Jitsu, both kids and adults, and there is nothing that I want more than the opportunity to continue to teach this amazing Martial Art.

   I have been working so hard over so many years and I truly feel I am on the right path to continue this journey.

   My biggest desire now is to be able to wait in Australia for the approval of my new sponsorship visa with Gracie Barra Shellharbour.

   Thank you very much for your attention with my case.

   I look forward to talking to you at the hearing and to be able to provide further details on our case.

   …

10. The first and second named applicants appeared before the Tribunal by telephone on 20 April 2022 to give evidence and present arguments. The Tribunal was assisted by the services of an interpreter in the English and Portuguese languages.

11. 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 (in particular, the fact that the applicants are based in New South Wales and the Presiding Member in Melbourne). 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 applicant was given a fair opportunity to give evidence and present arguments.

12. The applicant confirmed the contents of his written statement, adding that after the visa refusals, he and his family moved back to Melbourne for a period, as his wife obtained a job as a photographer at the Melbourne Aquarium. However, they then moved to Shellharbour in New South Wales in November 2021, after he was offered the position at Gracie Shellharbour. The applicant told the Tribunal that Gracie Shellharbour had had its nomination of him for the role of Sports Coach (Brazilian Ju-Jitsu instructor) approved, and that he and the family had lodged a subclass 482 visa application on the basis of this nomination on 15 April 2022 offshore. They had been advised that the processing (in Singapore) could take anywhere between 13 days to 8 weeks.

13. The Tribunal reiterated the legal position set out in its s.359A letter; namely that a new nomination by Gracie Shellharbour could not satisfy cl.482.212(1) for the purposes of the subclass 482 visa application made in 2018. The applicants indicated that they understood but that they hoped for enough time to secure new subclass 482 visas. The Tribunal noted this and advised that it expected to make a decision in 4 to 6 weeks, based on its existing work commitments, noting that a pending offshore application was not a valid legal reason for it to delay making a decision on the present review application indefinitely. It nevertheless asked the applicants to keep it advised of the progress of the offshore application.

14. The second named applicant told the Tribunal that they were most concerned about the situation for their daughter, who had had a difficult 2 years having to attend school remotely. She was now in year 7 and had regained some stability this year, which they wanted to continue. They all wished to continue their lives in Australia.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

16. 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.

17. It is not disputed that, at the time of the delegate’s decision, the applicant was not the subject of an approved nomination by the nominating employer identified in the visa application, Checkmat Tweed Heads Australia Pty Ltd.

18. Nor was it disputed that, as set out in the Tribunal’s s.359A letter, the Tribunal (differently constituted) found that it had no jurisdiction to review (and therefore to overturn) the Department’s decision to refuse Checkmat Tweed Heads Australia Pty Ltd’s nomination of the applicant. This means that he is currently not the subject of an approved nomination by Checkmat Tweed Heads Australia Pty Ltd and there is no prospect that he will be in future.

19. The Tribunal has some sympathy for the applicant and his present employer, as the applicant had no control over actions taken by his former employer in withdrawing its review application in respect of the nomination. It also appears clear that the applicant’s current employer also considers the applicant a valuable employee and has been willing to nominate him for a subclass 482 visa, in relation to which the applicants have pending subclass 482 visa applications which they lodged offshore. The Tribunal also acknowledges that the second and third named applicants are settled in their work and school situations respectively. Unfortunately, these factors do not alter the Tribunal’s legal conclusion that the nomination identified in the visa application by Checkmat Tweed Heads Australia Pty Ltd has not been approved, and there is no prospect that it can be approved.

20. Moreover, cl.482.212(1) does not confer on the Tribunal any discretion to overlook or waive its requirements, even where there are compassionate and/or compelling circumstances in the case, as is arguably the case here.

21. Accordingly, the Tribunal must find that the requirements of cl 482.212(1) are not met.

22. As one of the essential requirements for the visa is not met, the decision under review must be affirmed in relation to the applicant. The Tribunal must also affirm the decision not to grant a subclass 482 visa to the second and third named applicants as it finds that they do not satisfy the secondary visa criteria requiring them to be members of the family unit of a person who holds a subclass 482 visa, and there is no evidence that they meet the primary visa criteria in their own right.

    DECISION

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

    Alison Mercer
    Member