Pirvu (Migration)

[2022] AATA 1192

Pirvu (Migration) [2022] AATA 1192 (21 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alexandru-Bogdan Pirvu

REPRESENTATIVE:  Mrs Rachael Gunderson (MARN: 0901595)

CASE NUMBER:  1900446

HOME AFFAIRS REFERENCE(S):          BCC2018/4591755

MEMBER:Michelle East

DATE:21 February 2022

PLACE OF DECISION:  Perth

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

Statement made on 21 February 2022 at 4:16pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Joiner – subject of an approved nomination – no response to s 359A invitation – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 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 19 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 19 October 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 Medium Term stream to work in the nominated occupation of Joiner (ANZSCO 331213).

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 was not the subject of an approved nomination.

4. On 31 January 2022, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting his response to the following information:

   The application for approval of the employer nomination made by Arco Windows Pty Ltd (the nominator) was refused by a delegate of the Minister for Home Affairs.  The nominator sought a review of that decision, but the Tribunal found that it has no jurisdiction to review this matter.  This means that the nominator’s application for the nominated position has not been approved.

   This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.

   If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination.  This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.

5. A response was requested by 14 February 2022.

6. The applicant was represented in relation to the review by his registered migration agent.

7. The applicant has not provided the information within the prescribed period or requested an extension of time to do so.  In these circumstances s.359C applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if the review applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.

9. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision making processes. It has also had regard to the decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915.

10. The Tribunal has considered whether in the circumstances of this case, the evidence that the applicant meets the requirements of the legislation is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

11. The Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria.  The Tribunal is not disposed to delay making a decision indefinitely.

12. Accordingly, the Tribunal has decided not to exercise its discretion to adjourn the review any further to allow the applicant more time.

13. For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicant is the subject of a valid and approved nomination.

    Requirement for an approved nomination

15. 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.

16. Based on the evidence before it, the Tribunal is not satisfied that at the time of its decision that there is an approved nomination.  Therefore cl.482.212(1) is not met.

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

    DECISION

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

    Michelle East
    Member