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

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).
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Patel (Migration)

Details

AGLC: Patel (Migration) [2022] AATA 3320
Case: [2022] AATA 3320
Decision Date: 15 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a migration matter involving the applicants, Mr. Patel and other family members, who sought review of decisions to refuse them a Temporary Skill Shortage (Class GK) visa (subclass 482). The primary applicant, Mr. Patel, had departed Australia. The dispute centred on the Tribunal's jurisdiction to review the refusal of Mr. Patel's visa application and whether the other applicants qualified as members of the family unit under the relevant visa criteria.

The Tribunal was required to determine two key legal issues. Firstly, whether it possessed jurisdiction to review the decision to refuse the first named applicant, Mr. Patel, a subclass 482 visa, particularly in light of his departure from Australia. Secondly, the Tribunal had to ascertain whether the second, third, and fourth named applicants, who were family members, satisfied the criteria for being granted a subclass 482 visa, specifically clause 482.312, in relation to the primary visa applicant.

In reaching its decision, the Tribunal analysed the jurisdictional requirements for reviewing decisions under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). It noted that for a subclass 482 visa, section 338(2)(d) of the Act imposes an additional requirement for reviewability. This requirement mandates that, at the time of the refusal decision, either an approved nomination identifying the applicant must be in effect, or a review of a decision not to approve the sponsor or the nomination must be pending. The Tribunal found that all primary subclass 482 visa applicants must be identified in an approved nomination. As Mr. Patel was not the subject of an approved nomination at the time of the refusal decision, the Tribunal concluded it had no jurisdiction to review the decision in relation to him. Consequently, as the other applicants' eligibility was contingent on the primary applicant, they also did not satisfy the visa grant criteria, and their applications were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 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. 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. 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). 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. 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the second, third and fourth named applicants GK – Temporary Skill Shortage (Class GK) visas. The Tribunal has no jurisdiction in relation to the first named applicant.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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