Quinn (Migration)

[2022] AATA 1872

Quinn (Migration) [2022] AATA 1872 (18 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Declan Quinn

REPRESENTATIVE:  Mr Ruth Mulhern (MARN: 1382243)

CASE NUMBER:  1833373

HOME AFFAIRS REFERENCE(S):          BCC2018/3215814

MEMBER:Alison Mercer

DATE:18 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 18 April 2022 at 4:16pm

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

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

CASES
Yang v MIAC [2010] FMCA 890

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 26 October 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 25 August 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 Solid Plasterer.

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) Schedule 2 to the Regulations because he was not the subject of an approved nomination by an approved standard business sponsor. The delegate noted that the applicant did not respond to a natural justice letter advising him of this. As the applicant did not meet cl.482.212(1), he did not meet cl.482.212 as a whole and could not be granted a subclass 482 visa.

4. The Tribunal received a review application from the applicant on 13 November 2018, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Ruth Mulhearn, as his representative and authorised recipient for correspondence.

5. On 3 March 2022, the Tribunal wrote to the applicant via his agent to invite him to attend a telephone hearing on 8 April 2022.

6. On 11 March 2022, the Tribunal wrote again to the applicant via his gent pursuant to s.359A of the Act to invite him to comment on potentially adverse information held by the Tribunal. The Tribunal advised the applicant that the particulars of the that information were that:

   • in his subclass 482 visa application, the applicant was identified in a nomination made by his proposed employer, AK Formwork Construction Pty Ltd, for the occupation of Solid Plasterer;
   • his visa application was refused by a Department officer who determined that he

   did not meet cl.482.212, which required that he was the subject of an approved

   nomination by an employer who was an approved standard business sponsor, and the nomination had not ceased. The delegate found that AK Formwork Construction Pty Ltd did not have an approved nomination of the applicant, and therefore he did not meet the requirements to be granted a subclass 482 visa in the Medium Term stream (and had not made any claims against any other stream);
   of the decision to refuse to approve its nomination of the applicant for a subclass 482 visa; and

   • AK Formwork Construction Pty Ltd lodged an application for review with the Tribunal
   • on 18 October 2021, the Tribunal (differently constituted) affirmed the Department’s decision to refuse the nomination made by AK Formwork Construction Pty Ltd.

7. The Tribunal stated that this indicated that the applicant was not presently the subject of an approved nomination by an approved standard business sponsor, and that this information would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse to grant him a subclass 482 visa because one of the criteria contained within subclass 482, namely clause 482.212, required that at time of decision, the applicant was the subject of an approved nomination by a standard business sponsor and it appeared that he was not. The Tribunal further stated that it was its legal view that any new nomination of the applicant, whether by AK Formwork Construction Pty Ltd, or another employer, could not satisfy cl.482.212. The Tribunal advised the applicant that if he did not meet cl.482.212, then this would be the reason (or part of the reason) to affirm the decision to refuse to grant him a subclass 482 visa, as this was a mandatory criterion to be granted a subclass 482 visa.

8. The Tribunal advised the applicant that if it did not receive his comments or response within the period allowed or as extended, it might make a decision on the review without taking any further action to obtain his views on the information, and he would lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments, and the hearing scheduled for 8 April 2022 would be cancelled.

9. The Tribunal did not receive any comments, response or request for an extension of time to provide them from the applicant or his agent by 25 March 2022. There is no evidence that the Tribunal’s s.359A letter was not delivered or undeliverable.

10. Accordingly, the Tribunal cancelled the hearing on 8 April 2022, and wrote to the applicants to advise them of this, and to advise that it would defer making its decision on the review application to enable them to provide any additional information to support their case by 8 April 2022.

11. The Tribunal did not receive any response or information from the applicant or his agent by 8 April 2022.

12. The applicant has not responded to the Tribunal’s s.359A letter. In the circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit him to appear: see Yang v MIAC [2010] FMCA 890. In the circumstances set out above – where there no evidence that the applicant has the required approved nomination, where the applicant did not respond to the s.359A letter and was given additional time to provide any further information, and where he had the assistance of a migration agent - the Tribunal has decided to proceed to a decision without taking further steps to obtain the applicant’s comments on or response to the information set out in the Tribunal’s letter of 11 March 2022.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

14. 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.

15. It is not disputed that, at the time of the delegate’s decision, the applicant was not the subject of an approved nomination by A K Formwork Pty Ltd, the nominator listed in his visa application.

16. As set out in the Tribunal’s s.359A letter of 11 March 2022, although A K Formwork Pty Ltd sought review of the Department’s decision to refuse its nomination of the applicant, the Tribunal (differently constituted) affirmed the decision to refuse the nomination on 18 October 2021. This means the the nomination refusal is no longer under review, and there is no evidence that there is an approved nomination of the applicant by A K Formwork Pty Ltd.

17. For these reasons, the Tribunal finds that the requirements of cl 482.212(1) are not met.

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

    DECISION

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

    Alison Mercer
    Member