Mayandy (Migration)

[2019] AATA 2574

Mayandy (Migration) [2019] AATA 2574 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parthiban Mayandy

CASE NUMBER:  1900179

DIBP REFERENCE(S):  BCC2018/1964373

MEMBER:Antonio Dronjic

DATE:12 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 12 June 2019 at 1:03pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482–no approved nomination – applicant failed to provide requested information – not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 363
Migration Regulations 1994, r 2.72, Schedule 2, cl 482.212

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 Immigration on 17 December 2018 to refuse to grant the visa applicant a GK – Temporary Skill Shortage (Class GK) Subclass 482 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 May 2018. The delegate 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 applicant’s prospective sponsoring employer, Lentils and All Pty Ltd, did not have an approved nomination.

3. The applicant applied to the Tribunal on 4 January 2019, and provided a copy of the primary decision record with the application. The applicant was represented in relation to the review by his registered migration agent.

4. On 27 May 2019, the Tribunal wrote to the applicant inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicant’s comment on or response to the following information:

   ·Your visa application was refused by the Department on 17 December 2018 because the delegate found that you have failed to meet the requirements of cl.482.212 (1).

   ·The nomination application lodged with the Department by your prospective employer, Lentils and All Pty Ltd was refused by the department on 16 November 2018.

   ·On 4 December 2018, Lentils and All Pty Ltd applied for review of the decision made by the Department not to approve business nomination application to this Tribunal.

   ·On 10 May 2019, the sponsoring business withdrew the review application and the Tribunal made a decision that it has no jurisdiction to review the application.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 482 visa. This is because one of the criteria contained within subclass 482, namely clause 482.212 (1) requires the visa applicant to demonstrate that at the time the Tribunal comes to deciding the application, the nomination identified in the application has been approved under section 140GB of the Act; the person who made the nomination was an approved work sponsor at the time the nomination was approved and the approval of the nomination has not ceased under regulation 2.75. The relevant provisions are set out in Attachment 1.

   If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that the applicant does not meet the criteria contained within clause 482.212 (1).

   You are invited to give comments on or respond to the above information in writing…

5. The invitation was sent to the applicant’s address provided in connection with the review and advised that, if the comments on or response to the information was not provided in writing by 11 June 2019, and no extension of time has been sought or granted, the Tribunal may make a decision on the review without taking further steps to obtain the comments on or response to the information contained in the Tribunal letter of 27 May 2019.

6. The review applicant has not provided comments on or response to the information contained in the Tribunal letter.

7. The Tribunal has also considered whether it should adjourn the review under subsection 363(1) (b) of the Act to allow the applicant additional time in which to provide comments on or response to the information contained in the Tribunal letter of 27 May 2019.

8. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

   [1] [2002] FCA 617

   [2] [2012] FMCA 28

   [3] [2013] HCA 18 (8 May 2013)

   [4] [2014] FCAFC 1 (4 February 2014)

   [5] [2014] FCA 915 (28 August 2014)

9. The Tribunal considered whether, in the circumstances of this case, the applicant’s comments on or response to the information contained in the Tribunal’s s359A letter are likely to be forthcoming, whether the applicant had a fair opportunity to provide comments on or response to the information and the significance of the information to the applicant.

10. In this case the Tribunal wrote to the applicant under subsection 359A of the Act inviting him to provide comments and/or or response to the Tribunal letter of 27 May 2019. The applicant did not provide comments and/or or response within the prescribed periods set for this purpose.

11. The Tribunal has had regard to the fact that the visa application was refused by the Department on 17 December 2018, because the applicant was unable to meet the cl.482.212 (1) of Schedule 2 to the Regulations. This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The applicant submitted a copy of the primary decision record with the review application. The applicant was aware of the reasons for the delegate’s’ decision for more than five months.

12. The Tribunal note that, if the applicant is not granted a temporary work visa, he may be required to depart Australia. There is nothing to prevent the applicant from re-applying for a temporary visa once the applicant finds the new employer willing to sponsor and nominate the applicant for the position within their business.

13. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide his comments on or response to information contained in the Tribunal letter. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    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 sponsor at the time of approval, and has not ceased.

16. Based on the evidence before it, the Tribunal finds that the applicant is not, at the time of Tribunal decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the applicant that has not ceased. The Tribunal finds that the applicant does not satisfy cl.482.212 (1) of Schedule 2 to the Regulations.

    DECISION

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

    Antonio Dronjic
    Member