Premiere Asset Australia Pty Ltd (Migration)

[2023] AATA 116

Premiere Asset Australia Pty Ltd (Migration) [2023] AATA 116 (7 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Premiere Asset Australia Pty Ltd

VISA APPLICANT:  Ms Eriko Kondo

REPRESENTATIVE:  Mr Hiwa Zandi (MARN 1279378)

CASE NUMBER:  1901341

HOME AFFAIRS REFERENCE(S):          BCC2018/4802428

MEMBER:K. Chapman

DATE:7 January 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 07 January 2023 at 6:47pm  

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Hairdresser – no approved nomination – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.212

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 16 January 2019, 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’). The applicant, Ms Eriko Kondo, applied for the visa on 31 October 2018. The review applicant is Premiere Asset Australia Pty Ltd, the nominator for the visa.

2. At the time of application, 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 Short-term stream to work in the nominated occupation of Hairdresser (ANZSCO 391111).

3. The delegate 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 they were not the subject of an approved nomination as required. On 21 January 2019, the review applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with the application for review.

4. On 28 September 2022, the review applicant was invited to attend a review hearing scheduled for 13 October 2022. This invitation was sent to the review applicant’s registered migration agent on the record (‘the representative’). On 28 September 2022, the representative advised the Tribunal they were no longer representing the review applicant. However, no written confirmation was provided by the review applicant of such withdrawal of representation. Correspondence passed between the Tribunal Registry and the representative prior to the scheduled review hearing, regarding submission of the appropriate documentation to withdraw representation. No such appropriate documentation has been received to date.

5. Further, on 6 October 2022, the visa applicant responded to the hearing invitation indicating there would be no attendance at the scheduled review hearing and requested a decision be made on the papers. On same date, the visa applicant requested all correspondence be directed to them. Unfortunately, no confirmation from the review applicant, in particular its director Mr Masanobu Sato, was provided regarding the matters raised in this correspondence. Of note, on 6 October 2022, the Tribunal Registry wrote to the representative, review applicant and visa applicant seeking clarification of hearing attendance and contact details. No response was received by the Tribunal.

6. The review applicant failed to attend the review hearing scheduled on 13 October 2022. No request for adjournment was made by them and no explanation for their non-attendance has been submitted. The review applicant has not displayed the courtesy to make contact with the Tribunal following their non-attendance on 13 October 2022.

7. The Tribunal is satisfied that the review applicant was notified of the scheduled review hearing pursuant to the statutory requirements. On balance, the Tribunal is satisfied that the review applicant has been provided with a fair opportunity to attend a review hearing if they wished to do so. The Tribunal has also considered the merits of the application for review in the present matter. There is a lack of persuasive evidence to suggest the visa applicant has an approved nomination associated with the Subclass 482 visa application. Accordingly, the Tribunal forms the view that the application for review has no prospects of success.

8. The Tribunal notes that where a review applicant does not attend a scheduled review hearing, and an adjournment has not been granted, the legislative provisions permit it to proceed to determine the review. The Tribunal has paid careful regard to the guidance in the decisions of 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 held that the Tribunal is not required to indefinitely defer its decision-making processes. The Tribunal has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment. The Tribunal has accordingly carefully considered all the circumstances pertaining to the present application for review in considering whether to grant an adjournment, even though one has not been requested.

9. Given the lack of prospects of success regarding the application for review, the Tribunal has decided to make its decision on the review without taking any further steps to enable the review applicant to appear before it.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the visa applicant meets the requirements of cl.482.212(1).

    Requirement for an approved nomination

12. 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 it has not ceased.

13. Following careful consideration of the evidence, the Tribunal is not satisfied there is an approved nomination of an occupation relating to the visa applicant, by a standard business sponsor, that has not ceased. Therefore, the requirements of cl.482.212(1) are not met.

14. For the reasons expressed above, the Tribunal finds that the requirements for the Subclass 482 visa in the Short-term stream have not been satisfied. No claims have been made in respect of the other streams for the visa and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    decision

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

    K. Chapman
    Member