Rivero (Migration)

[2023] AATA 1209

Rivero (Migration) [2023] AATA 1209 (10 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ryan Cuartero Rivero
Mr Ryan Daniel Angelo Laboriante Rivero

CASE NUMBER:  1930884

HOME AFFAIRS REFERENCE(S):  BCC2019/4215807

MEMBER:Ian Berry

DATE:10 February 2023

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 February 2023 at 12:04pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Cook – skills, qualifications and employment background – skills assessment – English language proficiency – English language test requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212, 482.217, 482.223; Schedule 4, PIC 4001

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 (DOHA) on 9 October 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 25 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, 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 Cook (ANZSCO 351411).

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 482.217 of Schedule 2 to the Regulations because the delegate found there was no evidence of the applicant satisfying Public Interest Criteria 4001 (PIC 4001).

   Scheduled hearing: 9 February 2023

4. On 25 January 2023, the Tribunal set the applicant’s case for hearing scheduled for 10am on 9 February 2023.  The Tribunal’s letter was addressed to both the applicant and the applicant’s son Mr Ryan Rivero, at the email address given by the applicants to the Tribunal.  The letter confirmed the hearing was scheduled for 9 February 2023 at 10 a.m. (Queensland time) with the hearing time scheduled for two hours.  It was to be conducted by Microsoft teams with a link given to the applicants to attend the hearing.  Letter also requested that if the applicant’s or either of them required an interpreter they must give at least seven days’ notice before the hearing.  No contact was made by the applicants with the Tribunal requesting an interpreter.  A request was made of the applicant’s two contact the Tribunal within seven days of receipt of the letter by using the ‘Response to hearing invitation’ form. That form was not returned to the Tribunal.

5. On 25 January 2023 at 4:47 p.m., the Tribunal emailed the applicants, using the email address given by the applicants to the Tribunal.  There was no indication to the Tribunal of the email not being received by the applicants. Notwithstanding, the following transactions happened on the morning of the hearing (9 February 2023):

   ·At 9:52 a.m., the designated Tribunal Officer (TO) telephoned the applicant on the mobile number listed in the Tribunal’s system.  The call was not answered so a voicemail message was left.

   ·At 9:56 a.m., the TO called the listed telephone number is given by the applicant.  A man whose numbered was called, called the Tribunal and said he left Mr Rivero a voicemail on a second phone number. This man believed that Mr Rivero had left Australia. That phone number was provided by this man to the Tribunal.

   ·At 10:10 a.m., the TO telephoned the second number; there was no answer and a voicemail message was left.

   ·At 10:19 a.m., 10:25am and 10:30am calls were made by the TO with no answer and voicemail messages left on each occasion.

   ·The TO then provided a written report to the Tribunal Member reporting of being unsuccessful in contacting the applicants.

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 has complied with reg. 482.217 in that the applicant has complied with PIC 4001.

   Applicant’s skills, qualifications and employment background

8. Clause 482.212(3) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl 482.212(4), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.

9. The applicant was formally requested by DOHA to provide evidence of the skills assessment as the visa application stated that he had not applied.  There is no evidence on either the DOHA or tribunal files as to that information or evidence been supplied.

10. For these reasons the applicant does not meet the requirements of cl 482.212(3).

    English language proficiency

11. Clause 482.223(1) requires the applicant to satisfy any language test requirements specified for the applicant in an instrument. Clause 482.223(2), which enables the Minister to require the applicant to demonstrate their English language proficiency in a specified manner, does not apply in this case.

12. The relevant instrument for cl 482.223(1) is IMMI 18/032. This instrument sets out the English language test requirements, as well as applicants who are exempt from these requirements.

13. The applicant was requested by DOHA to provide evidence of the having satisfied the criteria relating the English proficiency.  There is no evidence of the applicant having provided the DOHA with that information.  Similarly, the applicant did not provide to the Tribunal, any evidence in relation to his English proficiency.

14. For these reasons, the applicant does not meet the requirements of cl 482.223.

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) visa.

    Ian Berry
    Member