P & A Group Investments Pty Ltd (Migration)

[2022] AATA 3467

P & A Group Investments Pty Ltd (Migration) [2022] AATA 3467 (29 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEWAPPLICANT:  P & A Group Investments Pty Ltd

VISA APPLICANT:  Mrs Sunita Kumari

REPRESENTATIVE:  Mrs Mandeep Kaur (MARN: 1462851)

CASE NUMBER:  1900305

HOME AFFAIRS REFERENCE(S):          BCC2018/5038062

MEMBER:Mary Sheargold

DATE:29 September 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 29 September 2022 at 5:00pm

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

LEGISLATION 
Migration Act 1958 (Cth), ss 65, 359C, 306, 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 17 December 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 13 November 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 of Cook, ANZSCO 351411.

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(1) of Schedule 2 to the Regulations because the applicant’s prospective nominating employer P&A Group Investments Pty Ltd did not have an approved nomination in place for them.

4. The review applicant was represented in relation to the review.

5. On 12 September 2022, the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting it to provide comments in writing on information that the Tribunal considered would be part of the reason for affirming the decision under review.  That adverse information was that the application for approval of the nominated position of Cook made by P&A Group Investments Pty Ltd was refused by a delegate of the Minister of Home Affairs, and that the Tribunal had recently affirmed the delegate’s decision.  The letter outlined that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

6. 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 26 September 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant did not provide the comments within the prescribed period and no extension was sought nor was one granted.  In these circumstances, s.359C applies, and pursuant to s.360(3) of the Act, the applicant is 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.

8. On 28 September 2022, the Tribunal wrote to the applicant noting that it had not received any comments or response to its invitation dated 12 September 2022, and advised the applicant that a telephone hearing listed for 5 October 2022, to which he had been separately invited, had been cancelled due to the effect of ss.360(3) and 363A of the Act.

9. For completeness, the Tribunal notes that the applicant also failed to respond to the invitation to attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the visa applicant meets the requirements of cl.482.212(1) of Schedule 2 to the Regulations.

    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 has not ceased.

13. The nominator’s nomination application was refused by the Department. The nominator sought a review of that decision with the Tribunal, but the Tribunal affirmed the delegate’s decision.  The review applicant failed to provide any response to, or comments on, this information. 

14. As the nomination application for the position to which the visa applicant’s Subclass 482 visa relates has not been approved, it follows that the visa applicant does not meet the criteria in cl.482.212(1)(a) of Schedule 2 to the Regulations. The Tribunal notes that because there is no approved nomination for the applicant’s visa application, she cannot overcome her current inability to meet cl.482.212(1)(a) in relation to her application. The nomination by P&A Group Investments Pty Ltd was specifically linked to this visa application, and that nomination was not, and now cannot be, approved.

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

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

    decision

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

    Mary Sheargold
    Member