Tan (Migration) - [2023] AATA 1148

Tan (Migration) [2023] AATA 1148 (28 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Yonggang
Tan

Mr Kaitian Tan
Mrs Honghua
Xiao
REPRESENTATIVE:  Mr David HO (MARN: 9903257)
CASE NUMBER:  1910768
HOME AFFAIRS REFERENCE(S):          BCC2019/143377
MEMBER:Karen McNamara
DATE:28 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

Statement made on 28 April 2023 at 11:05am
CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – short-term stream – sales and marketing manager – subject of approved position nomination – related nomination application refused and affirmed in separate review – not reasonable to postpone hearing to accommodate new representative – no substantive response to tribunal’s invitation to comment and no entitlement to appear – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A, 424A
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212(1), 482.312
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
McDonagh v MICMSMA [2022] FedCFamC2G 226
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1
STATEMENT OF DECISION AND REASOFNS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 April 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).
The applicants applied for the visas on 22 March 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, Mr Yonggang Tan (the first named applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Sales and Marketing Manager (ANZSCO 131112).
The decision record provided to the Tribunal, records that the delegate refused to grant the visas because Mr Yonggang Tan did not meet cl 482.212(1) of Schedule 2 to the Regulations, which required him to be the subject of an approved nomination. The delegate found that the prospective sponsoring employer Panlyn Australia Pty Ltd (the nominator) did not have an approved nomination.
Accordingly, as the nomination application had been refused, the delegate found that cl. 482.212 (1) was not met and therefore the applicant did not meet cl.482.212 of Schedule 2 to the Regulations.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tan (Migration)

Details

AGLC: Tan (Migration) [2023] AATA 1148
Case: [2023] AATA 1148
Decision Date: 28 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Tan and other applicants concerning their applications for a Temporary Skill Shortage (Class GK) visa, short-term stream. The core dispute revolved around whether the applicants met the requirements for the visa, specifically concerning an approved position nomination.

The Tribunal was required to determine if the applicants satisfied clause 482.212(1) of the Migration Regulations, which mandates that the nomination identified in the visa application must have been approved, made by an approved sponsor, and not have ceased. A key issue was whether it was reasonable for the Tribunal to proceed with the hearing without further substantive response from the applicants or their representatives, despite a change in representation and a request for postponement.

The Tribunal reasoned that a crucial requirement for the visa, namely an approved nomination, was not met. This conclusion was reached after considering correspondence regarding the applicants' migration agent's lapsed registration and subsequent appointment of a new representative. The Tribunal had invited the applicants to appear and provide comments, but received no substantive response. While the Tribunal did reschedule the hearing once to accommodate the new representative's travel plans, it ultimately found it unreasonable to postpone further, especially given the lack of a substantive response to its invitation to comment. The Tribunal affirmed the decision not to grant the Temporary Skill Shortage (Class GK) visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements of clause 482.212(1).Requirement for an approved nomination 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. On 23 April 2021, the Tribunal wrote to the applicants’ authorised recipient/representative advising that Tribunal records show that the representative’s MARA registration lapsed on 28 September 2020. The Tribunal requested the representative to provide information relating to any new authorised recipient/representative arrangements regarding the applicants, and that until otherwise advised the Tribunal would continue to send all correspondence to the authorised recipient/representative and a copy to the applicant. The Tribunal also wrote to Mr Tan on 23 April 2021, advising that the authorised recipient/representative’s registration as a migration agent lapsed on 28 September 2020. The Tribunal, until notified of alternate arrangements and contact details, advised that correspondence would continue to be sent to the authorised recipient/representative and that the applicants would also be sent a copy of any such correspondence. On 29 March 2023, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient and applicants) to appear before the Tribunal on 18 May 2023 at 12:00 pm (WA time) 2:00 pm (NSW time). On 6 April 2023, the applicants’ newly appointed authorised recipient and representative, advised the Tribunal of his appointment by the applicants on 1 April 2023 and requested an extension of time to prepare his clients’ matter for hearing. The representative noted that the applicants’ former representative did not provide paperwork to the applicants and that the newly appointed representative anticipated it would take within two months to receive documents from the Department under FOI. Additionally, the representative noted that he would be absent from Australia around 16 May 2023 and would not be available to attend the hearing and prepare the necessary documents until on and after 26 June 2023. The representative enclosed a request from the applicants requesting the Tribunal postpone the hearing until 25 June 2023 or later. The applicants noted that the representative would be absent from Australia around 16 May 2023 and return by 18 June 2023. On 12 April 2023, the Tribunal advised the applicant that the Member had considered the request for postponement and invited the review applicants under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 10 May 2023 at 12:00 pm (WA time). The hearing was rescheduled to accommodate the representative’s schedule before departing Australia on 16 May 2023.

Decision

Reasons for decision

As one of the essential requirements for the visa is not met, the decision under review must be affirmedDECISION The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.Karen McNamaraMember

Ratio Decidendi

Legal Principle Established

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