Navpreet Kaur (Migration)

[2023] AATA 2597

Navpreet Kaur (Migration) [2023] AATA 2597 (17 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Navpreet

Kaur

Miss Karman Choudhary
Miss Remal

Choudhary

Mr Manpreet Singh

REPRESENTATIVE:  Mr Peter Watt (MARN: 0742076)

CASE NUMBER:  1926496

HOME AFFAIRS REFERENCE(S):          BCC2019/3542013

MEMBER:C. Packer

DATE:17 July 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 17 July 2023 at 4.45pm

CATCHWORDS

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Skill Shortage) – Short-term stream – position of Cook – no approved nomination – nomination review application withdrawn – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
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 2 September 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 16 July 2019. 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.

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 there was no approved nomination by Mundy Gusto WA Pty Ltd.

4. On 3 July 2023 the Tribunal invited the applicants to comment on information. The letter stated in part:

   The particulars of the information are:
    On 16 July 2019 you applied for 482 visas on the basis that Navpreet Kaur had
   been nominated for the position of cook 351411 by the sponsor Mundy Gusto
   WA Pty Ltd.
    On 02 August 2019 you were advised that the prospective sponsoring
   employer Mundy Gusto WA Pty Ltd did not have an approved nomination in
   place for you.
    The sponsoring employer sought a review of the nomination refusal decision
   (1923459) with the Tribunal.
    However, on 28 June 2023 the Tribunal accepted the sponsoring employer’s
   withdrawal of their review application.
    This means that there is no approved nomination, and no review of that
   nomination refusal decision pending, that concerns you.

   This information is relevant to the review because without an approved nomination,
   you would not meet an essential criterion for the grant of the visa (clause
   482.212(1)(b)).

   The secondary applicants Mr Manpreet Singh and Miss Karman Choudhary would also not satisfy requirements.

5. The applicants were represented in relation to the review. On 17 July 2023 the applicants advised they had no further documents to provide and they requested that the Tribunal ‘proceed to make a decision based on information provided on file’.

6. 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

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. The nominator, Mundy Gusto WA Pty Ltd, had their application for approval of a nomination refused by the delegate. They sought a review with the Tribunal (case number 1923459). However, the nominator withdrew their review and the Tribunal accepted the withdrawal on 28 June 2023.

9. The Tribunal finds that there is no approved nomination by Mundy Gusto WA Pty Ltd that concerns the applicants. For these reasons the requirements of cl 482.212(1) are not met.

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

    DECISION

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

    C. Packer
    Member