Thakur (Migration)

[2023] AATA 120

Thakur (Migration) [2023] AATA 120 (12 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ajay Thakur

REPRESENTATIVE:  Ms Priyanka . (MARN: 2217802)

CASE NUMBER:  1928329

HOME AFFAIRS REFERENCE(S):          BCC2019/3735877

MEMBER:Amanda Mendes Da Costa

DATE:12 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 12 January 2023 at 12.26pm

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– Short-term stream – occupation of Café or Restaurant Manager – no approved nomination – nomination review application withdrawn – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 482.212

CASES

Hasran v MIAC [2010] FCAFC 40
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 19 September 2019 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 28 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 applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Café or Restaurant Manager ANZSCO Code 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 of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

4. On 9 September 2022 the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting him to comment on or respond to information which it considered would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review.

5. The particulars of that information were:

   ·The application for approval of the nominated position by PEEHU PTY LTD (the nominator) was refused by a delegate of the Minister.

   ·The nominator sought a review of that decision, but it has now withdrawn that application. 

   ·This meant that he nominator’s application had not been approved.

6. The Tribunal explained that the above information was relevant to the review because it was a requirement for the grant of the visa that the position in the applicant’s visa application was the subject of an approved nomination.

7. The Tribunal further explained that if it relied on this information in making its decision, it may find that the position specified in the visa application was not the subject of an approved nomination and would mean that the applicant did not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review.

8. The applicant was requested to provide any comments or response (in writing) by 26 September 2022.

9. On 26 September 2022 the applicant sought and an extension of time in which to provide any comments or response to the Tribunal’s s 359A invitation.  The Tribunal granted this request and gave the applicant until 10 October 2022 to provide such comments or response.

10. The applicant has not provided the comments or response within the prescribed period (or at all) and no extension was either been sought or granted.  In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal.  The effect off s.363A of the Act is that if an 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. The Tribunal wrote to the applicant on 12 October 2022 to advise that he has lost his entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal further advised that the hearing in the matter (fixed for 26 October 2022) had been cancelled.

11. Since 26 September 2022 the applicant has not requested additional time to provide evidence and present arguments, relating to the review application.

12. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support his application for review.

13. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, 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 [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.

14. The Tribunal has taken into account the fact that the applicant has been aware since the delegate’s decision on 19 September 2019 of the reasons for the nomination application being refused (40 months ago).  The Tribunal also notes that the implications of not providing the comments or response requested in the invitation from the Tribunal were set out in the letter of 9 September 2022.

15. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide the comments or response addressing the central issues arising in the application for review, or in which to request an extension of time in order to provide the comments or response but has not either provided the information or requested an extension of time.  Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further.     

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

17. In making its decision, the Tribunal has considered the material in both the Departmental and Tribunal files.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether the applicant meets the requirements of cl 482.212 of Schedule 2 to the Regulations.

    Requirement for an approved nomination

20. 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.

21. Based on the evidence before it, the Tribunal finds that:

    ·     The application for approval of the nominated position of Café or Restaurant Manager for the applicant by PEEHU PTY LTD (the nominator) was refused by a delegate of the Minister.

    ·     The nominator sought a review of that decision with this Tribunal but subsequently withdrew that application. 

22. This means that the nominator’s application was not approved and therefore the position specified in the visa application is not the subject of an approved nomination.  This means that the applicant does not satisfy a requirement for the grant of the visa.

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

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

    decision

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

    Amanda Mendes Da Costa
    Member