Ong (Migration)

[2022] AATA 4868

Ong (Migration) [2022] AATA 4868 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Jia Seng Ong

Ms Shu-Huei Lin

Miss Xiang Ning Ong

CASE NUMBER:  1901492

HOME AFFAIRS REFERENCE(S):          BCC2018/4754799

MEMBER:K. Chapman

DATE:17 November 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 17 November 2022 at 5:54pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – subject of an approved nomination – non-appearance before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Citizenship v Li [2013] HCA 18

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 January 2019 to refuse to grant the applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The applicants applied for the visas on 29 October 2018.

2. At the time of application, 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 first named applicant is seeking the visa in the Medium-term stream.

3. The delegate refused to grant the visas on the basis that the first named applicant (hereafter ‘the applicant’) did not satisfy the requirements of cl.482.212(1) of Schedule 2 to the Regulations, because they were not the subject of an approved nomination as required. On 22 January 2019, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with the application for review.

4. On 26 September 2022, the Tribunal wrote to the applicant inviting him to attend a review hearing by telephone scheduled for 8:00am (his local time) on 13 October 2022. The ‘Invitation to Attend a Hearing’ clearly advised that if the applicant failed to attend the scheduled review hearing by not answering his telephone, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it. The Invitation also requested the applicant to submit a ‘Response to Hearing Invitation’ outlining matters such as any witnesses which may be required. He failed to do so.

5. On 6 and 12 October 2022, the Tribunal sent automated messages by short message service (SMS) to the mobile telephone number of the applicant listed in the application for review. These messages reminded the applicant of the scheduled review hearing. No automated error message was received by the Tribunal in relation to these messages.

6. The applicant failed to attend the review hearing scheduled on 13 October 2022. No request for adjournment was made by him and no explanation for his non-attendance has been submitted. The applicant has not displayed the courtesy to make contact with the Tribunal following his non-attendance on 13 October 2022.

7. The Tribunal is satisfied that the applicant was notified of the scheduled review hearing pursuant to the statutory requirements. He was duly issued a written invitation to attend the scheduled review hearing and he was also provided SMS reminders of it. On balance, the Tribunal is satisfied the applicant has been provided with a fair opportunity to attend a review hearing if he wished to do so. Further, there is a lack of persuasive evidence to suggest the applicant has an approved nomination associated with his Subclass 482 visa application. Accordingly, the Tribunal forms the view that the application for review has no prospects of success.

8. The Tribunal has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment. The Tribunal has accordingly carefully considered all the circumstances pertaining to the present application for review in considering whether to grant an adjournment, even though one has not been requested.

9. Given the lack of prospects of success of the application for review, the Tribunal has decided to make its decision on the review without taking any further steps to enable the applicant to appear before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.482.212(1).

    Requirement for an approved nomination

12. 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 it has not ceased.

13. Following careful consideration of the evidence, the Tribunal is not satisfied there is an approved nomination of an occupation relating to the applicant, by a standard business sponsor, that has not ceased. Therefore, the requirements of cl.482.212(1) are not met.

14. For the reasons expressed above, the Tribunal finds that the requirements for the Subclass 482 visa in the Medium-term stream have not been satisfied. No claims have been made in respect of the other streams for the visa and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams.

15. Given that the applicant has not met the requirements for the grant of a Subclass 482 visa and is not the holder of a Subclass 457 or Subclass 482 visa, it follows that the second and third named applicants do not satisfy the requirements of cl.482.312. The Tribunal so finds.

    decision

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

    K. Chapman
    Member