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

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).
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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Quinn (Migration)

Details

AGLC: Quinn (Migration) [2022] AATA 1872
Case: [2022] AATA 1872
Decision Date: 18 April 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Temporary Skill Shortage (Class GK) visa, subclass 482, medium-term stream, for a Solid Plasterer. The applicant sought review of a decision not to grant the visa, which had been affirmed by the delegate.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 482.212(1) of the Migration Regulations 1994, specifically concerning the necessity of an approved nomination. The Tribunal also had to consider the status of the nomination made by A K Formwork Pty Ltd, the nominator listed in the visa application.

The Tribunal reasoned that clause 482.212(1) mandates that the nomination identified in the visa application must be approved and not have ceased. It was not disputed that at the time of the delegate's decision, the applicant did not have an approved nomination from A K Formwork Pty Ltd. The Tribunal noted that a previous decision by the Tribunal had affirmed the refusal of A K Formwork Pty Ltd's nomination of the applicant on 18 October 2021. Consequently, the nomination refusal was no longer under review, and there was no evidence of an approved nomination. As this was an essential requirement for the visa, the Tribunal found that the applicant had failed to meet it.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCERequirement for an approved nomination 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. 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. 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. For these reasons, the Tribunal finds that the requirements of cl 482.212(1) are not met. As one of the essential requirements for the visa is not met, the decision under review must be affirmedDECISION The Tribunal affirms the decision not to grant the applicant a Temporary Skill Shortage (Class GK) visa.Alison MercerMember

Decision

Reasons for decision

As one of the essential requirements for the visa is not met, the decision under review must be affirmedDECISION The Tribunal affirms the decision not to grant the applicant a Temporary Skill Shortage (Class GK) visa.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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