Prabhjot Kaur (Migration)

[2023] AATA 1491

Prabhjot Kaur (Migration) [2023] AATA 1491 (25 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Prabhjot

Kaur

Mr Harbhagwan Singh
Miss Manpreet

Kaur

REPRESENTATIVE:  Mrs Chaman Tiwari (MARN: 1681874)

CASE NUMBER:  1928918

HOME AFFAIRS REFERENCE(S):          BCC2019/3970835

MEMBER:Alan McMurran

DATE:25 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 25 May 2023 at 2:06pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – hairdresser – subject of approved position nomination – refusal of related nomination application affirmed in separate hearing – members of family unit – no substantive response to tribunal’s invitation to comment and loss of entitlement to appear – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 359C, 360(3), 363(1)
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212(1), 482.312(1)

CASE  
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 13 October 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 24 September 2019 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 11 August 2019. 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 (the secondary applicants), if any, who are applicants for the visa need only satisfy the secondary criteria.

3. In this case, the primary visa applicant, Mrs  Prabhjot Kaur (the applicant), a citizen of the Republic of India, is seeking the visa in the Short-term stream to work in the nominated occupation of Hairdresser (ANZSCO 391111). The secondary applicants are members of the applicant’s family unit.

4. 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 the nomination by the applicant’s sponsor /nominator, CREATE (WANDONG) Pty Ltd, was not approved.

5. On 1 May 2023, the Tribunal sent the applicant an invitation to comment on or respond to the information that there was no approved nomination. The applicant was asked to respond by 15 May 2023. The letter informed the applicant that cl.482.212 of Schedule 2 to the Regulations required that the nomination of the applicant by the sponsor was approved, and that it was necessary to have an approved nomination in order to be granted the visa.

6. On 15 May 2023, the applicant’s representative responded by email and requested a 14 day extension to respond. The representative’s email attached an email from the applicant of the same date where she states: “I am unable to respond to AAT as my mental health is not well. Today is the last day to respond to AAT so can I seek some extension”.

7. On 16 May 2023 the Tribunal sent an email response to the representative advising that the extension request was rejected. The Tribunal’s response states: “The Tribunal has considered your request for an extension of time to make submissions that were due on 15 May 2023. As you have not provided sufficient information to support the request, in this instance, the Tribunal has rejected your 14-day extension of time request. However, you have until 19 May 2023 to provide all relevant submissions. If you choose to make written submissions, please do so by 19 May 2023.”

8. Despite the time provided, no further response was received from the applicant. The Tribunal has waited until today, 25 May 2023, to make its decision, without hearing anything further.

9. The applicant has not provided any information to update her circumstances relating to approval of the nomination in support of the related visa application. As a consequence, the Tribunal may make a decision on review without taking further steps to obtain any information and the applicant has lost any entitlement she might otherwise have under the act to appear before the Tribunal give evidence and present arguments.

10. Section 359C of the Act applies and pursuant to section 360(3) of the Act, the applicant is not entitled to appear, and the Tribunal has no power to permit the applicant to appear.[1]

    [1] Hasran v MIAC [2010] FCAFC 40

11. The Tribunal has further given consideration whether in the exercise of its discretion, it should defer further consideration and adjourn the review pursuant to s 363(1) of the Act. No such request has been made supported by relevant information such as medical reports or from a third party such as a doctor or mental health expert. In light of the absence of such relevant information and where no attempt has been made to update the Tribunal since lodgement of the application on 13 October 2019, the Tribunal considers this is not a case where the exercise of that discretion is warranted.

12. The applicants were represented in relation to the review.

13. For the following reasons, the Tribunal has decided 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 nomination which the Minister has approved under s.140GB of the Act.[2]  

    [2] Subregulation 482.212(a))

    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. The available information from the Department shows the applicant was not the subject of an approved nomination by the sponsor. The Department wrote to the applicant a natural justice letter on 22 August 2019 informing the applicant  that the “prospective employer”, the sponsor/nominator, “does not have an approved nomination for you at this time”. The applicant was invited to respond within 28 days but did not do so.

17. On 3 March 2022, the Tribunal reviewed a Department decision refusing the nomination. [3] The Tribunal affirmed the Department decision, and the applicant’s representative was notified of the outcome on 4 March 2022.

    [3] Tribunal case 1902385

18. The applicant did not withdraw this related visa review application, notwithstanding there was no approved nomination. The Tribunal has no information that the nomination refusal is now the subject of a current appeal, and which nomination process has now been finalised.

19. Following commencement of this review, the Tribunal invited the applicant to provide information. The applicant has not done so and lost the right to a hearing.

20. The Tribunal has no other information other than what it has received from the Department and as referred to above in these reasons. No additional information or submissions have been made for the Tribunal’s file since lodgement of this visa review application.

    Finding

21. On the available information, the Tribunal finds that the applicant is not the subject of a nomination identified in the application which has been approved under section 140GB of the Act.

22. For these reasons the requirements of cl 482.212(1) are not met.

    Secondary applicants

23. Cl 482.312 requires that the primary applicant satisfies the primary criteria for the Subclass 482 (Temporary Skill Shortage) visa, and that the secondary applicants are members of her family unit.

24. The Tribunal is satisfied that the secondary applicants are members of the applicant’s family unit, but as the applicant has not met the primary criteria for the visa, the secondary applicants cannot meet the requirement of the subregulation 482.312(1).

    Conclusion

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

    DECISION

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

    Alan McMurran
    Member