Moraes (Migration)

[2021] AATA 4953

Moraes (Migration) [2021] AATA 4953 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rafael Moraes

CASE NUMBER:  1834791

HOME AFFAIRS REFERENCE(S):          BCC2018/3104065

MEMBER:George Hallwood

DATE:7 December 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 07 December 2021 at 11:17am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Contract Administrator – subject of an approved nomination – no response to s 359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

CASES
Hasran v MIAC [2010] FCAFC 40

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 5 November 2018 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 August 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 applicant is seeking the visa in the Short-term stream to work in the nominated occupation Contract Administrator – ANZSCO Code 511111.

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 of Schedule 2 to the Regulations because at the time of their decision, the applicant was not the subject of an approved nomination.

4. On 17 November 2021 the Tribunal wrote to the review applicants pursuant to s 359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The adverse information together with its relevance in this matter was included in the letter:

   The application for approval of the nominated position made by AUSTRALIAN BUSINESS MOBILE (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.

   This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 1 December 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicants have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. In the absence of a response the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether 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.

   Requirement for an approved nomination

9. 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.

10. On 17 November 2021 the Tribunal affirmed the decision not to approve the nomination by Australian Business Mobiles (NSW) Pty Ltd, Case number 1830212. This is the nomination identified in the related visa application with Mr Rafael Moraes as the subclass 482 visa applicant.

11. As the related nomination has not been approved, the Tribunal is not satisfied that the visa application is the subject of an approved nomination identified in the visa application.

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

    OVERALL CONCLUSION

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

    DECISION

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

    George Hallwood
    Member