Patel (Migration)

[2022] AATA 4616

Patel (Migration) [2022] AATA 4616 (8 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Ms Darshnaben Maheshkumar Patel

Mr Chetankumar Rajendrakumar Patel

CASE NUMBER:  1900625

HOME AFFAIRS REFERENCE(S):          BCC2018/3628183

MEMBER:Mary Sheargold

DATE:8 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 08 November 2022 at 3:37pm

CATCHWORDS  
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Pastrycook – subject of an approved nomination – no capacity to consider compelling and compassionate reasons – decision under review affirmed

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 21 December 2018 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 24 September 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 primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Pastrycook, ANZSCO 351112.

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 nomination application made by Mister Close Investments Pty Ltd for the position of Pastrycook was not approved.

4. The applicants appeared before the Tribunal by telephone on 20 October 2022 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   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’s nomination application was refused by the Department. The Tribunal reviewed the decision and affirmed the delegate’s decision.

9. On 8 September 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them 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 Pastrycook made by Mister Close InvestmetsPty 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.  Those comments were due to be received by 22 September 2022.

10. On 22 September 2022, the first named applicant wrote to the Tribunal in response to its invitation to comment.  In her handwritten letter, she summarised her family’s life in Australia since her arrival in 2007, including the birth of their now 3 year old son.  She explained that they have always abided by all visa conditions, obeyed all laws, and paid all their taxes.  Mrs Patel’s letter states that her family participates in the economy as far as possible, not using Medicare services, utilising and paying for public transport, and always paying their rent on time.  She states that the family was entitled to no government assistance during the Covid-19 pandemic and protracted lockdowns in Victoria.

11. The letter goes on to discuss Mrs Patel’s struggles in pregnancy and early motherhood without a support network around her, details her achievements in her studies, and cites the fact that her Subclass 457 visa, the last substantive visa she held, was granted for only 18 months, and not the 4 years she had anticipated.  Mrs Patel goes on to say she understands the nomination has been refused, but cannot understand why her family cannot attain permanent residency when other people she meets who cannot communicate in English manage to attain permanent status.  Mrs Patel says she sometimes is very disappointed and feels no courage and that she does not know where to go from here, and that there is trouble in her family because of her visa status.

12. At the hearing, Mrs Patel explained to the Tribunal that she now works for another employer in her nominated skilled occupation of Pastrycook, and that it is her family’s strong desire to have their visa status regularised so that they may move forward with their lives. Her pleas to the Tribunal were heartfelt and genuine. It was clear that Mrs Patel felt very distressed by the situation her family is currently facing, and she was reluctant to accept that, in circumstances where the specific nomination tied to her visa application had been refused, that she could not meet cl.482.212(1) of Schedule 2 to the Regulations.

13. Mrs Patel told the Tribunal that her neighbours had been praying for a positive outcome at the Tribunal hearing, but that the migration agents and lawyers she had engaged in the past had not been willing to assist her with her appeal.  She told the Tribunal that one agent had told her that her application was rubbish and she should ‘put it in the bin’.  Mrs Patel became very distressed when discussing this. 

14. Unfortunately, as explained to the applicants at the hearing, because the specific nomination application for the position to which her Subclass 482 visa application relates has not been approved, it follows that she does not meet the criteria in cl.482.212(1)(a) of Schedule 2 to the Regulations. The Tribunal expressed its sympathy to the applicants given the circumstances they had found themselves in, but noted there was no capacity to take into account the compelling and compassionate reasons Mrs Patel argued to seek a favourable outcome for this application. 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 Mister Close Investments Pty Ltd was specifically linked to her 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.

17. Pursuant to cl.482.312, the Tribunal must also affirm the decision to refuse to grant a Subclass 482 visa to the secondary applicant as he is not the member of a family unit of a person who holds a Subclass 482 visa, and there is no evidence that he meets the primary criteria in hisown right.

    decision

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

    Mary Sheargold
    Member