Mamun (Migration)

[2024] AATA 400

Mamun (Migration) [2024] AATA 400 (29 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Md

Abdullah Al Mamun

Mrs Mst Shahanaj Khatun
Mr

Sayan Mamun

CASE NUMBER:  2108877

HOME AFFAIRS REFERENCE(S): BCC2020164519 BCC20201645197

MEMBER:Mary Sheargold

DATE:29 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 29 February 2024 at 12:26pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Cook – no approved nomination – nomination application withdrawn – new employer making a nomination – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
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 22 June 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 29 May 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 (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Cook.

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Schedule 2 to the Regulations because the nomination application made by 17 Church Street Nelson Bay Pty Ltd had been withdrawn.

4. The first named applicant appeared before the Tribunal on 29 February 2024 by MS Teams video link to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the first named applicant meets the requirements of cl 482.212(1) of Schedule 2 to the Regulations.

   Requirement for an approved nomination

7. 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.

8. At the hearing, Mr Mamun explained that he understood his nominating sponsor, 17 Church Street Nelson Bay Pty Ltd, had withdrawn its nomination application in respect of the Chef position.  He acknowledged that he understood that this meant he could not demonstrate that he had an approved nomination and as such, this visa application could not be approved.

9. Mr Mamun explained that he had had difficulties with 17 Church Street Nelson Bay Pty Ltd because in the process of a nomination application being made and refused, then withdrawn, the Department’s concerns regarding his length of stay in Australia had been raised and that his sponsor had indicated they could not assist him in overcoming that problem.  He explained that the Covid-19 pandemic had seriously impacted his family. 

10. Ultimately, he has relocated to a different part of New South Wales, and has been working at the Blazing Stump Hotel for approximately 2 years.  He noted that this business was in the process of making a nomination to sponsor him and he requested the Tribunal defer its decision until at least July 2024.  The Tribunal noted that Mr Mamun had already requested several postponements of the Tribunal’s listed hearings of his application that had been granted.  It is not consistent with the Tribunal’s aims for this decision to be delayed indefinitely.

11. Mr Mamun provided the Tribunal with a reference letter from his employer dated 28 February 2024 that was mistakenly addressed to the Department but was intended to support his application before the Tribunal.  His employer requests an extension for his bridging visa for 4-6 weeks to allow it to make the nomination application on his behalf, citing the dire shortage of skilled cooks and chefs in the local area as the key motivator to nominate Mr Mamun for a visa.

12. The Tribunal appreciates the difficult circumstances that this application leaves Mr Mamun’s family in, as well as the potential difficulty for the Blazing Stump Hotel in Wodonga should this application be refused. However, the Tribunal does not have discretion to take these factors into consideration in making its findings. The Tribunal is limited to a consideration of whether or not Mr Mamun can demonstrate that he has an approved nomination from his sponsor, 17 Church Street Nelson Bay Pty Ltd, to support his visa application. As he does not have an approved nomination, the Tribunal cannot be satisfied that he meets the requirements of cl 482.212(1)(a) of Schedule 2 to the Regulations.

13. For these reasons the requirements of cl 482.212(1) are not met.

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

15. Pursuant to cl.482.312, the Tribunal must also affirm the decision to refuse to grant Subclass 482 visas to the secondary applicants as they are not the member of a family unit of a person who holds a Subclass 482 visa, and there is no evidence that they meet the primary criteria in their own right.

    DECISION

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

    Mary Sheargold
    Member