Pendse (Migration)

[2024] AATA 3980

Pendse (Migration) [2024] AATA 3980 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pranav

Ramesh Pendse

Mrs Meghana Ramesh Dixit

REPRESENTATIVE:  Mr Uday Mishra (MARN: 0215810)

CASE NUMBER:  2115212

HOME AFFAIRS REFERENCE(S):          BCC2021/1703610

MEMBER:Amanda Mendes Da Costa

DATE:24 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 24 June 2024 at 9.35am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – marketing specialist – subject of approved position – refusal of related nomination application affirmed in separate review – applicants’ study and work history, and personal circumstances and intentions – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

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 12 October 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 1 September 2021. 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 Marketing Specialist (ANZSCO 225113).

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 he was not the subject of an approved nomination.

4. Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 24 May 2024 to give evidence and present arguments.

5. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant/s. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

6. At the commencement of the Tribunal hearing, the Tribunal explained to the applicants the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicants’ representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both the applicants and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

7. The applicants were represented in relation to the review, with their representative also participating in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Requirement for an approved nomination

10. 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.

11. Information contained in Departmental and Tribunal files show that WALLAM AUTO BODY & TOWING PTY LTD (the nominator) made a nomination application in respect of the applicant for the position of Marketing Specialist which was refused by a delegate of the Minister. The nominator subsequently lodged an application with this Tribunal for review of that decision. However, on 19 March 2024 the Tribunal affirmed the delegate’s decision.

    Applicants’ evidence at the hearing

12. The applicant conceded that he was not the subject of an approved nomination by the nominator. He said he has been employed by the nominator as a Marketing Specialist since August 2021. The applicant explained that he had generated business for the nominator and continues to be employed by it. He noted that the ATO and PAYG documents provided to the Tribunal supported this employment.

13. The applicant said that he understood the nominator’s review application had been unsuccessful because the nominator could not provide sufficient evidence of its business activities. The applicant explained that the insurance companies (the nominator’s clients) are concerned about privacy which is the reason for them not wishing to share business information with others. The nominator did not disclose some of the evidence regarding him securing third party contracts, which was detrimental to its review application.

14. The applicant noted that all records regarding his employment are in the name of the nominator and clearly show he is employed by it as a Marketing Specialist. He explained that he has plans for promoting the nominator’s business including marketing strategies involving improved social media content and a new website.

    Findings

15. Based on the evidence before it (including the oral evidence of the applicant) the Tribunal finds  that the nomination identified in the visa application is not approved and for this reason 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. Given its findings regarding the applicant, the Tribunal is not satisfied that the second named applicant meets the secondary requirements for the grant of the visa.

    Ministerial Intervention

18. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s351 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

19. The applicants told the Tribunal that they have been living in Australia since 2016. They are living in rented accommodation near the nominator’s business and have no children.

20. The applicants provided the Tribunal with a joint personal statement dated 6 June 2024. It may be summarized as follows:

    ·They came to Australia in January 2016 to enable the second named applicant to complete a degree in accounting. Due to personal circumstances (including the death of the second named applicant’s father in India) the second named applicant was unable to a university placement until July 2017 when she secured a placement in a master’s degree in professional accounting at La Trobe University.

    ·Prior to his employment with the nominator the applicant was employed by a travel agency which was his original sponsor for his subclass 457 visa. Due to inappropriate and bullying behaviour by his employer, the applicant resigned his employment, and the second named applicant was forced to resign her own employment which had been obtained through the applicant’s original sponsor.

    ·The second named applicant subsequently obtained employment in November 2017 with a company which is part of a national  travel agency.

    ·During the period February to July 2018 the applicant was employed by a car rental company as a Business Development Manager. This employment ceased when the employer’s business ceased trading. He subsequently obtained employment as a Business Development Manager with another car rental company.

    ·When the second named applicant completed her Master of Professional Accounting course in July 2019, she increased her work hours and became a full-time employee with the travel agency.

    ·The second named applicant lost her job in September 2020 due to the effects of the Covid-19 pandemic on travel in Australia and overseas and the applicant’s employer ceased trading for similar reasons in early 2021.

    ·The applicants supported themselves from their savings until August 2021 when the applicant secured employment with the nominator and the second named applicant regained employment with her previous employer with whom she has been working since.

    ·The applicant has consistently been among the top 10 travel consultants for her company Australia-wide and her contributions have led to her store being the most profitable one in the group in 2023 at the Agency’s Global Awards. In 2024 the second named applicant has again been in the top 10 consultants against 70 stores and 200 other consultants. The second named applicant is a consultant in travel awards to be made in July 2024 in Lisbon, Portugal.

    ·Whilst living in Australia, the applicants have been compliant with their visa’s conditions and Australian laws.

    ·The applicants would like to have children but have been advised that their most likely opportunity for this occurring is through IVF therapy.  The applicants have been unable to undertake this therapy due to the high costs and the fact that they used up their savings during the Covid-19 pandemic because of forced unemployment.

    ·The second named applicant wishes to undertake another degree or certificate in counselling or mental health and to work with couples experiencing fertility issues. The applicant is interested in obtaining employment as a police officer or in the prison service.

    ·The applicants have a strong work ethic, have been diligent and hard-working employees and have made a commitment to a permanent life in Australia.

    ·The uncertainty regarding their migration status have caused them extreme distress and made it very difficult for them to make plans for their future and has impeded their ability to have children.

21. The Tribunal has also considered the documents provided by the applicants regarding the expenses paid by them in respect of the second named applicant’s university studies and the awards made to the applicant for her successful role in the travel industry.

22. The applicants have requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s351 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

23. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

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

    Amanda Mendes Da Costa
    Member