Rakesh Kumar (Migration)

[2020] AATA 6129

Rakesh Kumar (Migration) [2020] AATA 6129 (10 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr  Rakesh Kumar

Mrs Reena

Mr Aryan Kumar

Mr Aayush Kumar

CASE NUMBER:  1901960

HOME AFFAIRS REFERENCE(S):          BCC2018/3560351

MEMBER:Ian Berry

DATE:10 August 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 10 August 2020 at 12:11pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Café or restaurant manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

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 21 January 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 September 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 (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 primary visa applicant (the applicant) is seeking the visa in the short-term stream to work in the nominated occupation of café or restaurant manager ANZSCO 11111.

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 of Schedule 2 to the Regulations because the nomination identified in the application has not been approved under section 140GB.

4. The applicant appeared before the Tribunal on 1 July 2020 to give evidence and present arguments. The Tribunal received oral evidence from the applicant.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

5. The applicants were represented in relation to the review by Mr Ketan Juvekar MARN 1068746 of Migration Law. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant is the subject of an approved nomination as required by cl. 482.212.

   Requirement for an approved nomination

8. 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.

9. The applicant was the nominee and employee of sponsor Ikonkar Satnaam Pty Ltd (the sponsor) which owned a restaurant business. It employed the applicant in the position of Café or Restaurant manager.

10. The sponsor’s sponsorship application was refused by the delegate of the Minister on 19 December 2018. On 20 February 2020, the Tribunal invited the sponsor, under s.359 of the Act to comment on or provide information about whether the sponsor’s restaurant was a limited service restaurant as set out in IMMI 18/048. The invitation invited the sponsor to respond with information or make comment by 5 March 2020. It did not do so, though it had been advised that if it did not do so, the Tribunal will proceed to make its decision after that date. Consequently, the Tribunal affirmed the delegate’s decision on 15 May 2020.

11. On 19 May 2020, the Tribunal invited the applicant to comment on or provide information about matters set out in that letter, which in summary, stated the applicant lodged a visa application on 19 September 2018 for a 482 visa; the applicant’s nominator and sponsor had its nomination refused by the Department  upon which an application to the Tribunal was made. On 15 May 2020, the Tribunal affirmed the Department’s decision.

12. The Tribunal received a request from the applicant’s newly appointed migration agent for an extension of time. The Tribunal acceded to that request. Notwithstanding, the matter was set for a hearing for 1 July 2020. At the hearing, the applicant requested that the Tribunal delay making a decision as the applicant said he intended to seek another sponsor. The Tribunal agreed to that postponement for five weeks.

    In his submission dated 4 June 2020, the applicant requested the Tribunal consider writing to the Minister recommending the Minister exercise his discretion to allow the applicant’s visa. The Tribunal acknowledged carefully considered the submission raised by the applicant and his migration representative about the matters set forth in that 4 June 2020 submission. The applicant stated that he came to Australia to study and complete all his education and worked for his employer for over two years. While the applicant urged upon the Tribunal to exercise a discretion to make a submission to the Minister, the applicant did not set out any information upon which would be a reason or reasons for the Minister to exercise that discretion. The Tribunal does not consider these issues in and of itself sufficient to meet the Ministerial Guidelines for intervention.

    While the Tribunal acknowledges the applicant’s studying and working in Australia and not knowing that his sponsor had the delegate’s decision affirmed, it does not consider that this is sufficiently compelling or unique to warrant Ministerial intervention. It declines to refer the matter but notes that it remains open to the applicant and the migration representative to make such a request directly to the Minister if the applicant believes the circumstances do fall within the Ministerial Guidelines or otherwise demonstrate compelling or unique factors.

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

14. In respect of the second, third and fourth named applicants, the Tribunal notes there is no information before it to suggest that the second, third or fourth named applicants meet the primary criteria for the grant of the visa. The second, third and fourth named applicants applied for the visa because of being a member of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the second, third and fourth named applicants, as they are members of the family unit of a person who satisfies the primary criteria for the visa.

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

    DECISION

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

    Ian Berry
    Member