Oza (Migration)

[2024] AATA 989

Oza (Migration) [2024] AATA 989 (3 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Zankhana

Jayesh Oza

Mr Jayesh Manishbhai Oza
Ms

Drashti Jayeshbhai Oza

REPRESENTATIVE:  Mr Yashpal Erda (MARN: 0963835)

CASE NUMBER:  2107159

HOME AFFAIRS REFERENCE(S):          BCC2020/1926949

MEMBER:Karen McNamara

DATE:3 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 03 April 2024 at 11:47am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Accountant (General) – decision on the papers – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 13 May 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 19 July 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 Mrs Zankhana Jayesh Oza (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Accountant (General) ANZSCO 221111).

3. Information before the Tribunal shows that on 13 May 2021, the delegate refused to grant the visas because Mrs Zankhana Jayesh Oza did not meet cl.482.212(1) of Schedule 2 to the Regulations, which require the applicant to be the subject of an approved nomination. The delegate found that the prospective sponsoring employer Fidan Holdings Pty Ltd (the nominator) did not have an approved nomination.

4. Accordingly, as the nomination application had been refused, the delegate found that cl.482.212 (1) was not met and therefore the applicant did not meet cl.482.212 of Schedule 2 to the Regulations.

5. The delegate also found that the second named applicant (Mr Jayesh Manishbhai Oza) and third named applicant (Ms Drashti Jayeshbhai Oza) could not be granted a Subclass 482 visa, as they did not meet the secondary visa criterion (cl.482.312(1)) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 457 or 482 visa.

6. The applicants lodged an application for review with the Tribunal on 31 May 2021. The review application was accompanied by a copy of the primary decision record and copies of the applicants’ passport biodata pages. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

7. On 5 March 2024, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient and representative). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.

8. The invitation was sent to the applicants’ authorised recipient/representative via the last email address provided in connection with the review and requested the information be provided by 19 March 2024.

9. On 19 March 2024, the authorised recipient/representative wrote to the Tribunal via email advising as follows;

   “…We have been instructed by our client to inform you to take a further decision on this case based on the documents on the file and on paper.

   Our client has been cc'd in this email for your reference as well.

   We thank you for your time on this case and for its process…”

10. In accordance with the applicants request, the Tribunal has resolved this matter on the papers.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

13. 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.

14. On the 4 March 2024, the Tribunal affirmed the decision refusing the approval of the nomination made by Fidan Holdings Pty Ltd in respect of the applicant. As the nomination has been refused, the applicant is not the subject of an approved nomination and therefore does not meet the requirements of cl.482.212(1) and as such cl.482.212 is not met.

15. As mentioned previously in this decision, on 5 March 2024, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient and representative). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision not to approve the nomination made by Fidan Holdings Pty Ltd, which the Tribunal explained was relevant to the applicant meeting cl.482.212(1) which requires the nomination to be approved. As the nomination has been refused the application does not meet the requirements of cl.482.212(1).

16. Clause 482.212 (1) as applicable in this case, requires that the nomination identified in the application has been approved under section 140GB of the Act. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the applicant does not meet cl.482.212(1) of Schedule 2 to the Regulations.

17. As the first named applicant does not meet an essential criterion for the grant of a subclass 482 visa, cl.482.212 of Schedule 2 to the Regulations is not met.

18. There is no evidence before the Tribunal to indicate that the secondary applicants meet the primary requirements for grant of the visa.

19. In relation to the second named applicant (Mr Jayesh Manishbhai Oza) and third named applicant (Ms Drashti Jayeshbhai Oza), the Tribunal notes that cl.482.312 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 482 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

20. As the applicant (Mrs Zankhana Jayesh Oza) has not met the requirements for the grant of a Subclass 482 visa and is not the holder of a Subclass 482 visa, it follows that the second named applicant (Mr Jayesh Manishbhai Oza) and third named applicant (Ms Drashti Jayeshbhai Oza), as a member of Mrs Zankhana Jayesh Oza’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.482.312 of Schedule 2 to the Regulations.

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

    DECISION

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

    Karen McNamara
    Member