Sekhon (Migration)

[2022] AATA 1211

Sekhon (Migration) [2022] AATA 1211 (15 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rupinder Singh Sekhon
Mrs Sarbjeet Kaur Sekhon 
Ms Ambreen Kaur Sekhon

REPRESENTATIVE:  Mr Steven O'Neil (MARN: 9687267)

CASE NUMBER:  1828828

HOME AFFAIRS REFERENCE(S):          BCC2018/3777228

MEMBER:Antonio Dronjic

DATE:15 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 15 February 2022 at 9:07am

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Cafe or Restaurant Manager – nomination application associated with the position was not approved – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360 363
Migration Regulations 1994, Schedule 2, cls 482.212, 482.312

CASES
Hasran v MIAC [2010] FCAFC 40

statement of decision and reasons

application for review

1. 1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 October 2018 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. 2. The applicants applied for the visas on 15 June 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 primary visa applicant (the applicant) is seeking the visa in Short-term stream to work in the nominated occupation of Cafe or Restaurant Manager ANZSCO 141111.

3. 3. The applicants applied for the visa on 15 June 2018. The delegate refused to grant the visas on the basis that the first named applicant did not satisfy the requirements of cl.482.212 (1) of Schedule 2 to the Regulations because the applicant’s prospective sponsoring employer, Punjab WA Group of Businesses Pty Ltd, did not have an approved nomination.

4. 4.       The applicants applied for the review of the departments’ decision on 2 October 2018 and with the review applications submitted a copy of the primary decision record. The applicants were represented in relation to the review by their registered migration agent.

5. 5.       On 10 January 2022, the Tribunal wrote to the applicants inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicants’ comment on or response to the following information:

   •          Your visa application was refused by the Department on 2 October 2018, because the nomination has not been approved by the Department.

   •          The decision not to approve the nomination by Punjab WA Group of Businesses Pty Ltd was made by the Department on 31 August 2018.

   •          Punjab WA Group of Businesses Pty Ltd applied for review of this decision at this Tribunal on 14 September 2018.

   •        On 24 December 2021, the Tribunal confirmed the decision to dismiss the application for non-appearance and affirmed the Department’s decision.

   •        This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 482 visa. This is because one of the criteria contained within subclass 482, namely cl. 482.212(1)(a) requires that the nomination has been approved by the Minister.

   This information is relevant to the secondary review applicants because cl.482.312
   which prescribes that the secondary applicants meet the requirement of this subclause if the applicants are members of the family unit (the primary applicant) who holds a Subclass 482 or 457 visa granted based on satisfying the primary criteria for the grant of the visa.
   Accordingly, if the first named review applicant is not a holder of a subclass 482 visa
   or 457 visa, the secondary applicants will not be able to meet cl. 482.312.

   You are invited to give comments on or respond to the above information in writing…

6. 6. The invitation was sent to the applicants’ address provided in connection with the review and advised that, if the comments on or response to the information was not provided in writing by 24 January 2022, and no extension of time has been sought or granted, the Tribunal may decide on the review without taking further steps to obtain the comments on or response to the information contained in the Tribunal letter of 10 January 2022. The Tribunal further informed the applicants that they will lose any entitlement they might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

7. 7.       The review applicants have not provided comments on or response to information or requested an extension of time within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

8. 8.       The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicants additional time in which to provide their comments on or response to information contained in the Tribunal’s letter of 10 January 2022.

9. 9.       In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection where analogous issues were discussed.

10. 10.      In this case the Tribunal wrote to the applicants under subsection 359A of the Act inviting them to provide comments and/or or response to the Tribunal letter of 10 January 2022. The Tribunal note that the applicants had the benefit of representation from a registered migration agent to assist with the review applications. Yet, neither the applicants nor their representative provided comments and/or or response within the prescribed period set for this purpose.

11. 11. The Tribunal has had regard to the fact that the visa applications were refused by the Department on 2 October 2018, because the first named applicant was unable to meet the cl.482.212 (1) of Schedule 2 to the Regulations. This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The applicants submitted a copy of the primary decision record with the review applications. The applicants were aware of the reasons for the delegate’s’ decision for more than three years.

12. 12.      The Tribunal note that, if the applicants are not granted temporary work visas, they may be required to depart Australia. There is nothing to prevent the applicants from re-applying for a temporary visa once the applicants finds new employer willing to sponsor and nominate the applicants for the position within their business.

13. 13.      In the circumstances, the Tribunal considers the applicants have had sufficient time in which to provide his comments on or response to information contained in the Tribunal’s letter of 10 January 2022. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

14. 14.      For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

15. 15.      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.

16. 16. Based on the evidence before it, the Tribunal finds that the first named applicant is not, at the time of Tribunal decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named applicant that has not ceased. The Tribunal finds that the first named applicant does not satisfy cl.482.212 (1) of Schedule 2 to the Regulations.

17. 17.      The Tribunal must also affirm the decision not to grant the second and the third named applicants a subclass 482 visa as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 482 visa or Subclass 457 (Temporary Work (Skilled) visa, and there is no evidence that the secondary applicants meet the primary visa criteria for this subclass in their own right.

    decision

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

    Antonio Dronjic
Member