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

1. 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).

2. 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).

3. 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.

4. 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.

5. The delegate also found that the second named applicant, Mr Kaitian Tan and third named applicant Mrs Honghua Xiao could not be granted a Subclass 482 visa, as they did not meet the secondary visa criterion (cl.482.312) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 482 visa.

6. The applicants lodged an application for review with the Tribunal on 30 April 2019. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

7. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of clause 482.212(1).

   Requirement for an approved nomination

10. 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.

11. 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.

12. 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.

13. 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).

14. 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.

15. 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.

16. 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.

17. 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.

18. The Tribunal notes the applicants’ reason for seeking to postpone the hearing, is to allow the applicants newly appointed representative to “offer the applicants sufficient time to prepare.”  The Tribunal has carefully considered the applicants’ request and has formed the view that the applicants’ reason in seeking to delay this matter, is not reasonable.

19. In reaching this conclusion the Tribunal has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

20. The Tribunal further observes that the legislative objectives of the Tribunal as set out in section 2A of the Administrative Appeals Tribunal Act 1975, directs that in carrying out its functions; the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal, quick and proportionate.

21. Tribunal records show the applicants were notified by the Tribunal on 23 April 2021 that the registration of their former representative lapsed on 28 September 2020. The newly appointed representative was not engaged by the applicants until 1 April 2023, almost three years later. Information before the Tribunal shows the delegate’s decision refusing the applicants’ visas was made on 30 April 2019, of which the applicants lodged an application for review with the Tribunal on 30 April 2019. The applicants’ therefore have known of the delegate’s decision since 30 April 2019 and have had almost four years to prepare for their appeal.    

22. The Tribunal considers that providing additional time to the applicants to prepare their matter, given they have been aware of the circumstances for their visa refusal for almost four years and have had almost two years to appoint a new representative, does not on balance outweigh the legislative objectives of the functions of the Tribunal. The Tribunal did however afford consideration to the newly appointed representative’s travel plans and rescheduled the hearing to prior to the representative’s proposed departure from Australia.

23. On 12 April 2023, the Tribunal wrote to the applicants pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. 

24. The information related to information before the Tribunal that shows on 25 April 2022, the Tribunal affirmed the Department’s decision not to approve the nomination in relation to the applicants, made by Panlyn Australia Pty Ltd.

25. The Tribunal’s letter of 12 April 2023 noted that this information is relevant because Mr Yonggang Tan is not the subject of an approved nomination, and the Tribunal will find that the application does not meet the requirements of cl.482.212(1) thus not meeting cl.482.212   and will affirm the decision

26. The letter further stated:

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

    Your comments or response should be received by 26 April 2023. If the comments or response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 26 April 2023, you may ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 26 April 2023, and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    An invitation to attend a scheduled hearing was sent to you on 29 March 2023. Please note, however, that if you do not respond to this letter within the date specified or within any extended timeframe, you may lose your right to attend the scheduled hearing and it will be cancelled. The Tribunal may then proceed to make a decision on the review without taking any further action to obtain your views on the information.’

27. The invitation to comment/respond was sent to the authorised recipient at the last email address provided in connection with the review and advised as stated above, if the comments/response were not provided in writing by 26 April 2023, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the review applicant would lose any entitlement he may otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

28. On 27 April 2023, the authorised recipient/representative provided to the Tribunal via email, a completed ‘Response to Hearing Invitation’ form, AAT FOI Application form and covering letter. In the covering letter the representative advised inter alia “The Representative has taken a decision to postpone his overseas seminar in May-June this year. The event has been scheduled earlier this year but for the interest of the applicants, he will stay back to help the applicants.” The Tribunal notes no reference or comment has been provided in regard to the Tribunal’s invitation to comment dated 12 April 2023.

29. As mentioned previously in this decision, on 12 April 2023, the applicants were invited to comment on the following information

    ‘ The particulars of the information are:

    ·On 25 April 2022, the Tribunal affirmed the Department’s decision not to approve the nomination in relation to you made by Panlyn Australia Pty Ltd.

    The relevance of the information is that you are not the subject of an approved nomination, and the Tribunal will find that your application does not meet the requirements of cl.482.212(1) thus not meeting cl.482.212 and will affirm the decision under review.

    The nomination relied on to satisfy cl 482.212 must be the one that was made at the time of the visa application. You must have an approved related nomination to be able to be granted the visa.

    If the Tribunal relies on this information, it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed.

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

    Your comments or response should be received by 26 April 2023.’

30. As at the time of this decision, the review applicants have not provided the comments or a response within the prescribed period and no extension to provide comment has been sought or has been granted. 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.

31. The Tribunal has carefully considered whether to afford additional time to the applicants to provide comment as requested in the s.359(a) invitation, or to provide further material in support of their application for review.

32. In doing so, as previously considered in this matter, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

33. The Tribunal is satisfied that the invitation to provide comment was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. At the time of this decision, the applicants have not provided comment or a response, and the applicants have not made contact with the Tribunal to indicate that a response is forthcoming.

34. The Tribunal has also taken into account the fact that the implications of not providing the comments/response as requested in the invitation from the Tribunal, were set out and highlighted in the Tribunal’s letter of 12 April 2023.

35. The Tribunal notes that on 27 April 2023, the applicant did complete and send to the Tribunal a completed ‘Response to Hearing Invitation’ form. However, the applicant has not otherwise provided any response to the invitation to comment letter.

36. By responding to a hearing invitation using the template ‘Response to Hearing Invitation’ form, the applicant cannot be seen as also responding to a written invitation under s 359A or 424A.[1] This is because the template form allows the applicant to notify the Tribunal of any requirements for the hearing but cannot be seen as a ‘reply’ or ‘answer’ directed to the information requested by the Tribunal in a s 359A/424A invitation.[2]

    [1] McDonagh v MICMSMA [2022] FedCFamC2G 226 at [53]–[64].

    [2] McDonagh v MICMSMA [2022] FedCFamC2G 226 at [63].

37. In the circumstances, the Tribunal finds the applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to this review application. The Tribunal, therefore, has decided to proceed to make its decision on the available evidence without taking further steps to obtain the applicant’s comments.

38. On the evidence before it, the Tribunal finds that the nomination application associated with the position was not approved. Therefore, the first named applicant does not meet cl.482.212(1) of Schedule 2 to the Regulations.

39. As the first named applicant does not meet an essential criterion for the grant of a subclass 482 visa, cl.482.212 of Schedule 2 to the Regulations is not met.

40. There is no evidence before the Tribunal to indicate that the second named or third named applicants meet the primary requirements for grant of the visa.

41. In relation to the second named applicant Mr Kaitian Tan and third named applicant Mrs Honghua Xiao, the Tribunal notes that cl.482.312 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 482 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

42. As Mr Yonggang Tan has not met the requirements for the grant of a Subclass 482 visa and is not the holder of a Subclass 482 visa, it follows that the second named applicant Mr Kaitian Tan and third named applicant Mrs Honghua Xiao, as a member of Mr Yonggang Tan’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.482.312 of Schedule 2 to the Regulations.

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

    DECISION

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

    Karen McNamara
    Member