SHEN (Migration)

[2024] AATA 1005

SHEN (Migration) [2024] AATA 1005 (10 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jie

SHEN

Mr Jie TANG

REPRESENTATIVE:  Ms Carissa Huai Sze Law

CASE NUMBER:  2003660

HOME AFFAIRS REFERENCE(S):          BCC2019/3596536

MEMBER:Penelope Hunter

DATE:10 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 10 April 2024 at 4:16pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Restaurant Manager – subject of an approved nomination – nominating company deregistered – subsequently lodged and pending nomination – ‘nomination identified in the visa application’ – decision under review affirmed

LEGISLATION
Corporations Act 2001 (Cth), s 601AD
Migration Act 1958 (Cth), ss 65, 362A
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212, 482.312

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 5 February 2020 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 19 July 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 Restaurant Manager.

3. Ms Shen is the primary visa applicant. Mr Tang is her spouse and has applied for the visa as a member of her family unit.

4. The delegate in this case refused to grant the visa on the basis that Ms Shen did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations. This is because the applicant’s prospective nominating employer did not have an approved nomination in place for them. A copy of the decision record of the delegate has been provided to the Tribunal with the review application.

5. On 19 February 2024, Ms Shen and Mr Tang were invited to attend a hearing before the Tribunal via telephone on 21 March 2024 to give evidence and present arguments.

6. On 26 February 2024, the representative of the applicants, wrote to the Tribunal seeking to postpone a hearing of the review application until the end of June 2024. The representatives advised that they were only retained by the applicants in September 2023, and provided advice to Ms Shen that an appropriate case strategy would include Ms Shen finding a new employer willing to sponsor her and submitted a new visa application. Further, Ms Shen had secured a verbal agreement from a new employer but they were in the process of discussing the application and estimated that the processing time could take up to three months. It was also claimed that a new solicitor with the firm had taken carriage of the matter and needed time to review the file and discuss the matter with the applicants. The Tribunal also received a request for access to written material under s 362A of the Act.

7. On 26 February 2024, the Tribunal wrote to the applicants via their representative and advised that the request for postponement had been refused. In refusing the request the Tribunal noted that having been engaged in the matter since September 2023, that as representative for the applicants they had sufficient time to prepare, despite staff changes. Further, whether or not the applicants pursued an alternate visa was a matter outside the review of the Tribunal.

8. On 7 March 2024, the Tribunal wrote to the applicants pursuant to the provisions of s 359A of the Act and invited them to comment or respond to information at the hearing on 21 March 2024. The relevant information identified was that according records held by the Australian Securities and Investment Commission (ASIC) on 2 May 2023, Red Chilli Dixon Pty Ltd was deregistered, and that once a company is deregistered it ceases to exist as a legal entity pursuant to s 601AD(1) of the Corporations Act 2001. Further that on 6 September 2023, upon review the Tribunal found that it no longer had jurisdiction to review the decision to refuse the nomination application lodged by Red Chilli Dixon. The Tribunal explained the relevance of the information to the applicants and that if it relied on the information it may find that the relevant nomination had not been approved and Ms Shen would not be able to meet the requirements of cl 481.212(1) of Schedule 2 to the Regulations. Consequently, the decisions under review may be affirmed.

9. On 8 March 2024, the Tribunal provided a response to the request for written material under s 362A of the Act.

10. On 19 March 2024, the Tribunal received a further request for hearing postponement. The Tribunal was advised that Ms Shen was hospitalised on 17 March 2024 in Chengdu First People’s Hospital China on 17 March 2024, as was expected to remain to undergo tests. The Tribunal was further provided with a hospital test report in Mandarin and a translation.

11. The Tribunal consented to a postponement of the hearing. On 19 March 2024, the applicants were sent a further hearing notice for 8 April 2024 and were advised that the time to respond to the Tribunal’s letter of 7 March 2024 was also extended to 8 April 2024.

12. On 8 April 2024, the Tribunal received further submissions from the representative of the applicant. Included with the submissions was a company extract for Fook Sing United Pty Ltd, a letter from the Department to Fook Sing Pty Ltd notifying of approval as a standard business sponsor dated 18 March 2024, a Nomination application form by Fook Sing Pty Ltd, an employment contract for Ms Shen and a personal statement of Ms Shen.

13. Ms Shen and Mr Tang appeared by telephone before the Tribunal on 8 April 2024. Ms Shen claimed to have a sore throat and the Tribunal was informed that she was unable to speak. Mr Tang spoke with the Tribunal at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Their representative did not appear at the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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. According to the visa application submitted Ms Shen applied for the visa under review on the basis of a nomination by Red Chilli Dixon Pty Ltd in the position of Restaurant Manager. This nomination was refused by the Department on 6 January 2020.

17. In her personal statement provided to the Tribunal, Ms Shen stated that she was not told by Red Chilli Dixon Pty Ltd  that in December 2019, the Department had imposed a bar upon the company preventing it from sponsoring employees for three months. She was also claimed to have been represented by the same agent as Red Chilli Dixon Pty Ltd. She had limited contact with the agent and the nomination application and her visa application were arranged by her sponsoring employer. When her visa was refused Ms Shen set out that she was not informed of the opportunity to withdraw her application. She continued to work for Red Chilli Dixon Pty Ltd while awaiting review by the Tribunal because she was told this was a condition of her visa. Her employer’s business was impacted by the COVID-19 pandemic and it could not survive and closed. She said that she stopped working for Red Chilli Dixon Pty Ltd around January 2023.

18. Further in her statement Ms Shen claimed that during lockdown in 2022, she had enrolled to study an MBA and MPA at Newcastle University. She was offered an enrolment in July 2022 and applied for a Subclass 500 student visa offshore. This visa was refused. She obtained a new immigration lawyer in August 2023, and she was informed that Red Chilli Dixon Pty Ltd was deregistered. Due to the COVID-19 pandemic neither Ms Shen nor Mr Tang could not return to China. They were separated from their son for more than three years. Ms Shen now had a new offer of employment from Fook Sing United Pty Ltd, which was a similar business as her former employer. Her role would again be a restaurant manager. On 16 March 2024, Fook Sing United Pty Ltd submitted a nomination application for her, which was currently pending approval.

19. At the hearing, the Tribunal confirmed with Mr Tang and Ms Shen that it had read the statement and the submissions provided on their behalf. Mr Tang confirmed that they understood the reason for the visa refusal and in the first instance. He also confirmed that they were aware that Red Chilli Dixon Pty Ltd went into liquidation. He confirmed that Ms Shen ceased working for them in January 2023.

20. The Tribunal then discussed with the applicants the information contained in its s 359A correspondence of 7 March 2024. It was identified that the information before it was that on review the Tribunal found that it did not have jurisdiction to review the decision to refuse the related nomination application by Red Chilli Dixon Pty Ltd as a consequence of the company deregistration. This meant that the decision of the Department had not changed and the nomination was not approved. Mr Tang advised that he and Ms Shen had no dispute with that information.

21. The Tribunal then discussed with the applicants the substance of the submissions by their representative and which included a petition for an extension of six months to allow for the period needed to secure approval of the nomination application by Ms Shen’s new employer Fook Sing United Pty Ltd. The representative for the applicants had argued that the new circumstances which had arisen due to Ms Shen’s new sponsoring employer submitting a fresh nomination application would on approval demonstrate that the applicant met the criteria in cl 482.212(1) of Schedule 2 to the Regulations and that she could be successful upon review to the Tribunal. Mr Tang told the Tribunal that he was not aware that an extension of six months had been requested and he claimed that he had never given these instructions.

22. The Tribunal is also not satisfied that any fresh nomination application would cure the issues with the review application. It is considered that the reference to the nomination identified in the visa application in cl 482.212(1)(a) refers to the existence of a state of facts. In this particular case the fact is that the nomination referred to in Mr Shen and Mr Tang’s visa application was the nomination by Red Chilli Dixon Pty Ltd, TRN EGOMEO1K40. This is the nomination in respect of which the visa application under review was made. Not a recent nomination by Fook Sing United Pty Ltd. It is also the nomination in respect of which Ms Shen made various declarations including that she understood the visa application, that it was complete and correct and that no persons included in this application have engaged in conduct that constitutes a contravention of subsection 245AS(1) the Act.

23. It is also noted that the reference to a particular nomination being identified is replicated in the requirements contained in Schedule 1 of the Regulations. Specifically, item 1240(3)(f)(iii) requires that the Subclass 482 visa application must identify the nomination. The plain language of the relevant provisions does not in the assessment of the Tribunal permit rectification of deficiencies or in effect the substitution of a new nomination. Consequently, the Tribunal is satisfied that Ms Shen’s visa application was linked to the one nomination identified, and a subsequently lodged and pending nomination, even if approved, could not meet this criterion.

24. The Tribunal informed Ms Shen and Mr Tang at the hearing that because the new nomination was not the one identified in the visa application the Tribunal did not consider it appropriate or consistent with the objects of the Tribunal to delay a decision on review. The Tribunal’s role was to review with the visa application sponsored by Red Chilli Dixon Pty Ltd and it had no jurisdiction as yet in respect of any subsequent visa or nomination application. Mr Tang again reiterated that the request for a delay was not a request he made.

25. As the Tribunal finds that the nomination TRN EGOMEO1K40, by Red Chilli Dixon Pty Ltd identified in the visa application has not been approved it follows that Ms Shen does not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations.

26. As Ms Shen has not met one of the primary requirements for the grant of a Subclass 482 visa it follows that Mr Tang cannot meet the secondary requirements in cl 482.312 of Schedule 2 to the Regulations.

27. As essential requirements for the visas are not met, the decision under review must be affirmed.

    DECISION

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

    Penelope Hunter
    Member