Sharma (Migration)

[2024] AATA 3468

Sharma (Migration) [2024] AATA 3468 (18 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hitesh Sharma

REPRESENTATIVE:  Mr Andrew Wun Nam Au

CASE NUMBER:  2202395

HOME AFFAIRS REFERENCE(S):          BCC2021/625270

MEMBER:Jade Murphy

DATE:18 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 18 September 2024 at 4:45pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Café or Restaurant Manager – no approved nomination – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 363
Migration Regulations 1994, Schedule 2, cl 482.212

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 15 February 2022 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 5 November 2021. 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 Short-term stream to work in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111).

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) of Schedule 2 to the Regulations because the relevant nomination was refused by a delegate for the Minister of Home Affairs on 8 December 2021. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.

4. On 30 August 2024, the Tribunal wrote to the applicant and invited him to give oral evidence and present arguments at a hearing scheduled for 18 September 2024.

5. Two hearing reminders, the first on 11 September 2024 and the second on 17 September 2024, were sent via SMS to the first named applicant’s mobile.

6. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. No satisfactory reason for the non-appearance has been given.

7. The Tribunal notes that the applicant’s representative did appear at the video conference but did not respond to the Hearing Attendant’s enquiries as to the applicant’s whereabouts at the time. The Tribunal waited until 11:18am to call the hearing a ‘no show. The Tribunal notes that this is 18 minutes past the scheduled hearing time and 33 minutes past the requested attendance time. Prior to the Tribunal declaring no attendance from the applicant, the Tribunal made several attempts to contact the applicant and his representative by ordinary telephone on their respective numbers. Four calls were made to the representative’s office and another call was made to the applicant’s mobile telephone directly which went unanswered however a voicemail message was left. The calls to the representative’s office were answered on one occasion, however no satisfactory reason for the applicant’s non-appearance was provided.

8. At 12:07pm the Tribunal received correspondence from the applicant’s representative stating that they had experienced ‘technical difficulties’ which was why they could not attend the hearing at the time scheduled.

9. The Tribunal has considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

10. In doing so, the Tribunal has considered the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] 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[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

11. The Tribunal has considered whether, in the circumstances of this case, the information that the applicant meets the requirements in cl.482.212(1) of the Migration Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

12. The Tribunal has had regard to the fact that the application was refused by the Department on 15 February 2022 because there was no approved nomination.  The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for over two years of the reasons for the visa refusal.

13. Significantly, the Tribunal notes that since the date of review application, 22 February 2022, no supporting documents, information, or submissions have been provided by the applicant to the Tribunal regarding the applicant’s ability to satisfy the regulatory criteria. The Tribunal gives this consideration more weight where the issues under review is the straightforward, single-issue of whether or not he position to which the application relates is the subject of an approved nomination.

14. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant can meet cl.482.212(1)). The Tribunal is not disposed to delaying making a decision indefinitely.

15. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that cl.457.223(4) can be met.

16. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in this case is whether the position to which the application relates is the subject of an approved nomination.

    Requirement for an approved nomination

19. 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.

20. On 8 December 2021, the nomination lodged by Sia Sharma Pty Ltd, being the nomination referred to in paragraph 482.212(1), was refused by a delegate for the Minister of Home Affairs.

21. On 20 December 2021, Sia Sharma Pty Ltd, lodged an application for review with the Tribunal.

22. On 14 March 2024, the Tribunal affirmed the Department’s decision to refuse the nomination application.

23. As a result, the Tribunal finds that the associated nomination remains refused.

24. As the nomination (the one referred to in paragraph 482.212(1)) remains refused the Tribunal finds that the position to which the application relates is not the subject of an approved nomination.

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

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

    DECISION

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

    Jade Murphy
    Member