Toqeer (Migration)

[2023] AATA 1123

Toqeer (Migration) [2023] AATA 1123 (26 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kainat

Toqeer

Mr Asad Khan Panezai
Mr

Shahzain Khan Panezai

Ms Shanzay Khan Panezai

CASE NUMBER:  1924737

HOME AFFAIRS REFERENCE(S):          BCC2019/3383849

MEMBER:Sheridan Lee

DATE:26 April 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 26 April 2023 at 12:03 pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Cook – subject of an approved nomination – no response to s.359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 363A
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 15 August 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 5 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 Cook.

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)(a) of Schedule 2 to the Regulations, which requires that the nomination identified in the application has been approved.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

5. 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.

6. On 30 March 2023, the Tribunal wrote to the applicant, pursuant to s.359A of the Act. The letter invited the applicant to provide comment on or respond to certain information. The particulars of the information were:

   ·On 5 July 2019, Ethinic Cuisines Pty Ltd applied to the Department of Home Affairs to nominate the applicant for the position of ‘Cook’ (ANZSCO 351411).

   ·On 15 July 2019, the application for approval of the nominated position made by the nominator was refused by the Department. The nominator applied to the Tribunal for merits review of that decision.

   ·On 6 October 2022, the nominator withdrew the application for merits review. This means that the nomination application relating to the visa application has not been approved

7. The letter advised that the information is relevant to the review because it is a requirement for the grant of the visa that the application is the subject of an approved nomination. It was also explained that if the Tribunal were to rely on the information in making a decision, it would mean it must affirm the decision under review.

8. The letter invited comments or a response by 13 April 203, noting that an extension of time to respond could be requested prior to that date.

9. The applicant did not make any submissions within the prescribed period. In addition, the applicant did not request an extension of time.

10. The Courts have confirmed that where an applicant fails to provide the requested information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1] Accordingly, as the applicant failed to give the information requested within the prescribed period, she has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

11. In these circumstances, subsection 359C(2) of the Act applies and the Tribunal has decided to proceed to decision without taking any further action to obtain the information.

12. The nomination identified in the visa application was made by Ethinic Cuisines. That nomination was not approved. As such, the requirement of cl 482.212(1)(a) was not met. One of the essential requirements for the visa was not met and the decision under review must be affirmed.

13. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second, third and fourth named applicants do not satisfy the secondary criteria for the grant of the visa, as per cl 483.312 of Schedule 2 to the Regulations. The secondary applicants are not members of the family unit of a person who is the holder of a Subclass 457 or 482 visa

    DECISION

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

    Sheridan Lee
    Member