Varas Elgueta (Migration) - [2024] AATA 3465

Varas Elgueta (Migration) [2024] AATA 3465 (13 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Cristian Rodrigo Varas Elgueta
REPRESENTATIVE:  Ms Ingrid Meskin (MARN: 0853578)
CASE NUMBER:  2200948
HOME AFFAIRS REFERENCE(S):          BCC2021/272740
MEMBER:Jade Murphy
DATE:13 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.
Statement made on 13 September 2024 at 12:43pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – internal auditor – subject of approved position nomination – refusal of related nomination application affirmed on review – no substantive response to invitation to comment after extension of time – tribunal’s internal review of complaint about nomination review now completed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C(2). 363A, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)
CASE
Singh v MIBP [2017] FCAFC 67

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 January 2022 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).
The applicant applied for the visa on 23 February 2021. 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 Medium-term stream to work in the nominated occupation of Internal Auditor (ANZSCO 221214).
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) of Schedule 2 to the Regulations because the relevant nomination was refused by a delegate for the Minister of Home Affairs on 13 December 2021. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.
On 16 August 2024, the Tribunal wrote to the applicant pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.
The particulars of the information were that the application for review of the related nominated position, made by Black and White Waiters Pty Ltd, was refused by a delegate of…

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 Varas Elgueta (Migration)

Details

AGLC: Varas Elgueta (Migration) [2024] AATA 3465
Case: [2024] AATA 3465
Decision Date: 13 September 2024

CaseChat Overview and Summary

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa, subclass 482, medium-term stream, for the occupation of internal auditor. The applicant, Varas Elgueta, sought review of a decision to refuse the visa. The core of the dispute revolved around whether the position nominated for the applicant was the subject of an approved nomination, as required by the Migration Regulations. The decision was made by Jade Murphy, a Member of the Tribunal.

The Tribunal was required to determine whether the nomination application associated with the visa application had been approved. Specifically, it needed to ascertain if the requirements of clause 482.212(1) of the Migration Regulations 1994 were met, which mandates that the nomination identified in the visa application must be approved, made by an approved sponsor, and not have ceased.

The Tribunal reasoned that the nomination lodged by Black and White Waiters Pty Ltd was refused by a delegate of the Minister of Home Affairs on 13 December 2021. Although an application for review of this refusal was lodged with the Tribunal, the Tribunal affirmed the Department's decision to refuse the nomination application on 15 August 2024. Consequently, the Tribunal found that the associated nomination remained refused. As the nomination was not approved, the essential requirement of clause 482.212(1) was not met, leading to the affirmation of the decision not to grant the visa.

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 this case is whether the position to which the application relates is the subject of an approved nomination.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 13 December 2021, the nomination lodged by Black and White Waiters Pty Ltd, being the nomination referred to in paragraph 482.212(1), was refused by a delegate for the Minister of Home Affairs. On 23 December 2021, Black and White Waiters Pty Ltd, lodged an application for review with the Tribunal. On 15 August 2024, the Tribunal affirmed the Department’s decision to refuse the nomination application. As a result, the Tribunal finds that the associated nomination remains refused. As the nomination (the one referred to in paragraph 482.212(1)) remains refused the Tribunal finds that the position to which the application relates is not the subject of an approved nomination. For these reasons the requirements of cl 482.212(1) are not met. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.Jade MurphyMember

Decision

Reasons for decision

As one of the essential requirements for the visa is not met, the decision under review must be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.Jade MurphyMember

Ratio Decidendi

Legal Principle Established

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