Patel (Migration)

[2022] AATA 3320

Patel (Migration) [2022] AATA 3320 (15 August 2022)

ECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mrs Binal Mitenkumar Patel

Mr Miten Natwarlal Patel

Master Pratham Mitenkumar Patel

Master Taksh Patel

REPRESENTATIVE:  Mr Shiju Mathews (MARN: 0637656)

CASE NUMBER:  2107696

HOME AFFAIRS REFERENCE(S):          BCC2020/1322005

MEMBER:Alison Mercer

DATE:15 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the second, third, and fourth named applicants Temporary Skill Shortage (Class GK) visas.

The Tribunal has no jurisdiction in respect of the first named applicant.

Statement made on 15 August 2022 at 11:38am

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Dental Technician – applicants had departed Australia –a member of the family unit– Short-Term stream – applicant is not the subject of an approved nomination by an approved standard business sponsor – no jurisdiction in relation to the first named applicant – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140, 338, 359
Migration Regulations 1994, r 1.12, Schedule 2, cl 482.212, 482.312

CASES

Yang v MIAC [2010] FMCA 890

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 24 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 6 April 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 (the applicant) is seeking the visa in the Short-term to work in the nominated occupation of Dental Technician.

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 she was not the subject of an approved nomination by an approved standard business sponsor. The delegate further refused to grant the second, third and fourth named applicants (the spouse and children of the first named applicant) subclass 482 visas as they were not members of the family unit of a person who held a subclass 482 visa, as required by cl.482.312.

4. The Tribunal received a review application from the applicants on 15 June 2021. It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Mr Shiju Matthews, as their representative and authorised recipient for correspondence.

5. On 17 June 2021, the Tribunal wrote to the applicants via their agent to advise them that a preliminary view had been taken that the Tribunal did not have jurisdiction in respect of the first named applicant because at the time of the delegate’s decision to refuse to grant the visa, the first named applicant was not identified in an approved nomination that had not ceased, and nor was there a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Migration Act 1958, or of a decision not to approve the nomination under s.140GB of the Act. The Tribunal advised, however, that this was a matter which must be determined by a Tribunal Member, but that if the applicants wished to make any comments on whether a valid application has been made, they were invited to do so, in writing, by 1 July 2021 and then their application, with any comments they made, would then be referred to a Member to make a decision on their application. They were advised that if a Member decided that either of them had not made a valid application, they would be given a written statement of decision and reasons

6. On 1 July 2021, the Tribunal received a response to its letter from the applicants’ agent, in which he stated that the first named applicant had been the subject of an approved nomination that was approved in January 2020, but that due to the COVID19 pandemic, the nominating employer’s business was badly affected and it withdrew its nomination of the first named applicant. The agent advised that the first named applicant had been trying to secure new employment but her efforts had also been affected by the COVID19 pandemic. He further stated that she had planned to re-train in another field but was unable to enrol in a course because her visa status prevented this. He asked that she be granted additional time to do this. The agent provided was a confirmation of enrolment (CoE) issued to the applicant by the Australian Technical College WA for a Graduate Diploma of Management (Learning) on 17 March 2021, and an undated statement from the first named applicant in which she indicated that the situation was not her fault and that she and her family wished to remain in Australia.

7. On 12 October 2021, the Tribunal wrote again to the applicants via their agent to note that the Department’s movement records indicated that the applicants had departed Australia and to ask them to confirm whether they wished to withdraw their review application or proceed with it.

8. The Tribunal did not receive a response to this email.

9. On 21 July 2022, the Tribunal wrote again to the second, third and fourth named applicants via the agent to invite them to comment on or respond to potentially adverse information held by the Tribunal, pursuant to s.359A of the Act.

10. The Tribunal noted that In the Department’s decision of 24 May 2021 to refuse the applicants the visas, the first named applicant was the primary visa applicant and the delegate found that she did not satisfy the primary visa criteria in cl.482.212 (which required her to have an approved nomination by a Standard Business Sponsor). It further noted that the second, third and fourth named applicants were also refused subclass 482 visas on the basis that they did not satisfy cl.482.312, which required that they were members of the family unit of a person who held a subclass 482 or a subclass 457 visa granted on the basis that they satisfied the primary visa criteria. The Tribunal advised that its records indicate that, subsequently, they and the first named applicant applied to the Tribunal for review of the decision to refuse them subclass 482 visas on 15 June 2021, and that on 17 June 2021, the Tribunal wrote to them to advise that it did not believe that it had jurisdiction to review the decision to refuse the first named applicant a subclass 482 visa, as at the time that the delegate made the refusal decision on 24 May 2021, the first named applicant was not the subject of an approved nomination, nor was there a pending review application in relation to the nomination refusal decision or of a decision to refuse to approve the first named applicant’s employer as a Standard Business Sponsor (as required by s.338(2)(d) of the Act, which set out when a subclass 482 visa refusal decision is reviewable by the Tribunal). The Tribunal further noted that it invited the applicants to comment on this information by 1 July 2021 and they did so.

11. The Tribunal stated that it was writing to seek their comments about additional potentially adverse information that affected their case, the particulars of which were that:

    ·a check of the Department’s Integrated Client Services Environment (ICSE) electronic records conducted on 12 July 2022 indicated that the first named applicant did not hold a subclass 482 or a subclass 457 visa.

12. The Tribunal advised that the information was relevant to the review because, subject to their comments or response, it indicated that the second, third and fourth named applicants were not members of the family unit of a person who held a subclass 482 visa or a subclass 457 visa that was granted on the basis of them meeting the primary visa criteria, as required by cl.482.312, and that this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the second, third and fourth named applicants met cl.485.312 at the time of decision. The second, third and fourth named applicants were invited to comment on or respond in writing to this information by 4 August 2022, and was advised that if they did not do so (and did not seek an extension of time to do so by that date), they would lose their entitlement to a Tribunal hearing and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain their views about the information.

13. The Tribunal did not receive a response or comments, or a request for an extension of time to do so, from the second, third or fourth named applicant or the agent by 4 August 2022. It has received no further communication from them to date. The Tribunal is satisfied that its s.359A letter was sent via email to the email address nominated by the applicants. There is no evidence in the Tribunal’s electronic records that the email was not delivered or undeliverable.

14. The second, third and fourth named applicants did not respond to the Tribunal’s s.359A letter.  In the circumstances, s.359C applies and pursuant to s.360(3), they are not entitled to appear before the Tribunal.  The Tribunal has no power to permit an applicant to appear before it where they are not entitled to do so: see s.363A and Yang v MIAC [2010] FMCA 890. In the circumstances set out above – where no comments or response has been provided despite this being requested, and the criterion in dispute is a confined legal issue - the Tribunal has decided to proceed to a decision without taking further steps to obtain their views about the information contained in its s.359A letter.

15. For the following reasons, the Tribunal has concluded that it has no jurisdiction in relation to the first named applicant, and that the decisions under review in relation to the second, third and fourth named applicants should be affirmed.

    Consideration of claims and evidence

16. The issues in this review are:

    ·whether the Tribunal has jurisdiction to review the decision to refuse the first named applicant a subclass 482 visa; and

    ·whether the second, third and fourth named applicants are members of the family unit of the primary visa applicant and satisfy cl 482.312.

    Jurisdiction

17. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.

18. For onshore visa applications, such as the current one, a decision to refuse to grant a subclass 482 visa is reviewable in certain circumstances as set out in s 338(2). Paragraphs (a) to (c) of s 338(2) apply in all cases, requiring that the visa could be granted to a person in the migration zone, and the person made the application in the migration zone after being immigration cleared (which would always be the case for a valid onshore subclass 482 visa application). The Tribunal is satisfied that these conditions are met in this case.

19. However, section 338(2)(d) imposes an additional requirement for certain prescribed temporary visas to be reviewable (including subclass 482 visas).[1] There are four alternative requirements; however, the fourth is only applicable if it is not a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the Regulations.

    [1] A Subclass 482 visa is prescribed for s 338(2)(d): reg 4.02(1A).

20. In each instance, the requirement must be met at the time the decision to refuse to grant the visa is made. The alternatives are:

    (i)the non-citizen is identified in an approved nomination that has not ceased under the regulations;[2] or

    (ii)a review of a decision under s 140E not to approve the sponsor of the non-citizen is pending; or

    (iii)a review of a decision under s 140GB not to approve the nomination of the non-citizen is pending; or

    (iv)except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased, the non-citizen is sponsored by an approved sponsor.[3]

    [2] See reg 2.75 for cessation of nominations associated with Subclass 482 visas.

    [3] s 338(2)(d) as repealed and substituted by No 90, 2018, with effect for decisions made on or after 13 December 2018.

21. All primary subclass 482 visa applicants must be identified in an approved nomination.[4] Accordingly one of the first three alternative requirements (ss 338(2)(d)(i)–(iii)) must be met, at the time the decision to refuse to grant the visa is made. This means that, at that point in time, a nomination identifying the primary visa applicant must be approved, or a decision not to approve their sponsor be pending review before the Tribunal, or a decision to refuse the nomination be pending review before the Tribunal, for the decision to be a Part 5-reviewable decision.

    [4] See cl 482.212(1), which applies to all primary applicants regardless of the stream applied for.

22. As noted above, on 17 June 2021, the Tribunal wrote to the applicants via their agent to advise them that it had taken the preliminary view that it did not have jurisdiction in respect of the first named applicant, as she was not the subject of an approved nomination on 24 May 2021 (the date of the primary decision to refuse the subclass 482 visas), nor was there a pending review application of a decision to refuse his employer’s nomination of her, or of a decision to refuse to approve that employer as a standard business sponsor, on 24 May 2021. As also noted above, the applicants responded to this information on 1 July 2021.

23. The Tribunal finds that it does not have jurisdiction to review the decision to refuse the first named applicant a subclass 482 visa as she does not meet s.338(2)(d)(i), (ii) or (iii), and (iv) is not applicable to her. This is because there was no approved nomination of her on 24 May 2021 (as the Department had refused to approve her employer’s nomination of her prior to that date, as set out in the primary decision record provided to the Tribunal by the applicants with the review application). Nor was there any review pending with the Tribunal on 24 May 2021 of the decision to refuse to approve the nomination, nor of any decision to refuse to approve the first named applicant’s employer as a standard business sponsor.

    As the delegate’s decision in respect of the first named applicant is not reviewable in these circumstances, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in relation to her.

    Member of the Family Unit

24. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

25. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

    ·the spouse or de facto partner of the family head;

    ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

    ·a dependent child of a person in the second dot point.

26. It is not disputed that the second, third and fourth named applicants are the spouse and children of the first named applicant, who is the primary visa applicant. This information was contained in the primary visa application and documentary evidence was provided to the Department in support of the family relationships, which was not disputed by the delegate.

27. However, the second, third and fourth named applicants are unable to meet cl.482.312(1), which must be met at the time of decision (in this case, the time of the Tribunal’s decision in 2022). This is because they are not the spouse and children, and thus are not members of the family unit, of a person who holds a subclass 482 visa, as the first named applicant was refused a subclass 482 visa and the Tribunal has found above that it has no jurisdiction to review that decision. There is no evidence before the Tribunal that the first named applicant holds a subclass 482 visa.

28. It follows that the second, third and fourth named applicants do not satisfy the criteria for the grant of a subclass 482 visa. As this is the only relevant subclass in this case, the decisions under review will be affirmed in relation to them.

    decision

29. The Tribunal affirms the decision not to grant the second, third and fourth named applicants GK – Temporary Skill Shortage (Class GK) visas.

30. The Tribunal has no jurisdiction in relation to the first named applicant.

    Alison Mercer
    Member