Vo (Migration)

[2022] AATA 4025

Vo (Migration) [2022] AATA 4025 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Minh Triet Vo

Ms Vy Que Lan Le

Master Harry Le Minh Khoi Vo

REPRESENTATIVE:  Ms Kiska Li (of No Borders Law Group)

CASE NUMBER:  1913669

HOME AFFAIRS REFERENCE(S):          BCC2019/1663681

MEMBER:K. Chapman

DATE:17 November 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 17 November 2022 at 2:04pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – production or plant engineer – subject of approved position nomination – refusal of relation nomination application affirmed on review – incorrect advice from and inaction by previous migration agent – application for judicial review of nomination refusal affirmation in progress – request for recusal or adjournment not accepted – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

CASE

Livesey v New South Wales Bar Association [1983] HCA 17

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 14 May 2019, to refuse to grant the applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The first named applicant applied for the visa on 3 April 2019, including the second and third named applicants in the application. In the present matter, the first named applicant (hereafter ‘the applicant’) seeks the visa to work in the nominated occupation of Production or Plant Engineer (ANZSCO 233513). His position was nominated by Premier Ducts (Qld) Pty Ltd.

3. At the time of application, 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.

4. The delegate refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.482.212(1) of Schedule 2 to the Regulations, because he was not the subject of an approved nomination as required. On 30 May 2019, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with his application for review.

5. On 28 September 2022, the Tribunal sent the applicant a Hearing Invitation to attend a review hearing by telephone means scheduled for 13 October 2022. This invitation was sent to the applicant’s representative then on the record. Also on 28 September 2022, that representative withdrew from the matter. On 5 October 2022, the representative now on the record (Ms Kiska Li of No Borders Law Group), advised of her appointment and requested a postponement of the scheduled hearing. The Tribunal carefully considered this request and declined it on 6 October 2022, given the confined nature of the subject matter pertinent to the review.

6. On 11 October 2022, Ms Kiska Li advised that she had now withdrawn from the matter (also re-sending such notification on 12 October 2022). On 12 October 2022, the applicant submitted a response to the Hearing Invitation, confirming attendance at the review hearing scheduled for 13 October 2022. No further written request for postponement of the scheduled review hearing was made.

7. The applicant appeared by telephone before the Tribunal on 13 October 2022 to give evidence and present arguments. He confirmed he was comfortable proceeding with the hearing by telephone means. No further request for postponement was made at the review hearing. The Tribunal also took evidence by telephone from the second named applicant and Ms Phuong Nguyen. The applicant specifically confirmed at the hearing that he did not wish to call another listed witness. The Tribunal granted the applicant time to lodge post-hearing material until 3 November 2022. He did not do so by that date.

8. On 11 November 2022, Ms Kiska Li advised the Tribunal she was re-appointed to represent the applicants. She lodged written submissions with the Tribunal on same date. In summary, these submissions informed the Tribunal that the nominator had a judicial review application on foot, requested the Tribunal to recuse itself given its “error in the nomination”, or in the alternative requested delay of the present review application until the nominator’s judicial review application is determined. The Tribunal has carefully considered these submissions. For reasons outlined below, the Tribunal declines to recuse itself, nor will it delay its decision in this review.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

11. 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 it has not ceased.

    The review hearing

12. At the review hearing, the applicant agreed that he does not have an approved application for nomination associated with his visa application. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised with the applicant the following information. The nominator’s application for approval of the nomination associated with his visa application was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it has been finally determined. This means that the nominator’s application for the nominated position has not been approved.

13. The Tribunal indicated the above information is relevant to the review as it tends to suggest that there is not an approved nomination of an occupation relating to him by a standard business sponsor that has not ceased. The Tribunal informed the applicant that if it was to rely upon this information it would be the reason, or a part of the reason, to affirm the decision under review. When asked by the Tribunal if he would like to comment on or respond to the information now or if he would like additional time to do so, the applicant advised he would like a couple of minutes before responding. The Tribunal paused proceedings for this purpose.

14. Following the pause in proceedings, the applicant advised that he his aware the application for nomination failed. He attributed blame for this failure to a past migration agent on the record and referred to the issue of Labour Market Testing not being appropriately addressed before the delegate. The applicant maintained that as a Vietnamese national he is not subject to the Labour Market Testing requirements. He also claimed that he did not receive the decision on the review application pertaining to the nominator until 5 October 2022. He asked the Tribunal to reconsider the nominator’s review application. The applicant outlined that he has two children and a wife in Australia. He maintained that he is working for the nominator. The Tribunal has carefully considered the applicant’s response to the information raised with him pursuant to s.359AA of the Act.

15. During the remainder of the review hearing the applicant outlined his employment, education and immigration history regarding Australia. In summary, the applicant requested the Tribunal to undertake the review for the nominator again. The second named applicant gave evidence to the Tribunal also critiquing her former migration agent in relation to the nomination application. She also requested the nomination application be reconsidered. Ms Phuong Nguyen also gave evidence to the Tribunal. She explained that she recently took over as the General Manager of the nominator and indicated the company wanted to sponsor the applicant. Her understanding is that a previous migration agent incorrectly advised a previous business manager of the nominator and didn’t submit documents in a timely fashion. The applicant confirmed Ms Nguyen is his supervisor. The Tribunal has carefully considered all evidence submitted at the review hearing, in conjunction with all documentary evidence before it.

16. Towards the end of the review hearing, the Tribunal canvassed with the applicant the possibility of considering his matter for a Ministerial Intervention referral given he has two children. The applicant advised he would submit their identity documents, his educational qualifications, employment references and associated material to the Tribunal for its consideration. Time was afforded to the applicant to submit such material following the review hearing. Ultimately, the applicant did not do so. Accordingly, the Tribunal has insufficient material before it to make such a referral.

    Post-hearing submissions

17. The post-hearing submissions of the representative indicate the delegate’s decision regarding the nominator was in error regarding the issue of Labour Market Testing. They advise of a judicial review application on foot regarding the nominator’s unsuccessful merits review application (submitting a copy of the judicial review application to the Tribunal). The representative contends an adjournment in the current review is required to promote public trust in the Tribunal. At paragraph 9 of the submissions, the representative contends that to accept this request, “…it could be inferred that you acknowledge your error in the nomination, which you may not be willing to do.” It is further contended the Tribunal should recuse itself in the present review, with the authority in Livesey v New South Wales Bar Association [1983] HCA 17 cited.

18. The Tribunal has carefully considered the requests of the representative to recuse itself or, alternatively, to adjourn this review pending the outcome of the nominator’s judicial review application. In the view of the Tribunal, it is important to properly consider the grounds of judicial review in the nominator matter in order to make a decision on each request.

19. The first ground of judicial review of the nominator contends that the applicant is a Vietnamese national, exempt from Labour Market Testing, “…hence the AAT has not properly applied and/or interpreted Reg 2.72 and/or s140GBA.” The second ground contends the “…erroneous decision about Labour Market Testing was pivotal to the AAT’s consideration of the whole nomination application and as a consequence the error meant that the AAT failed to conduct a proper review as required under s348(1) of the Migration Act…” . Grounds three and four, respectively, contend the Tribunal’s decision regarding the nominator was “unreasonable” or “otherwise unlawful”.

20. When considering the submissions of the representative holistically, including the submitted judicial review application of the nominator, it is apparent that the gravamen of their complaint is that the Tribunal fell into error by either making an incorrect decision with respect to the Labour Market Testing requirements, or being impermissibly influenced by those requirements. The basis of the Tribunal’s reasons in the nominator matter are outlined in its decision record pertinent to that review. Upon reading those reasons, it will be identified they are not based upon the Labour Market Testing requirements. For completeness, the Tribunal notes that an application for review of a nomination refusal decision may only succeed where all the relevant legal criteria, of which there are several, are satisfied at the time of decision.

21. On balance, the Tribunal does not accept it has fallen into error with regard to the Labour Market Testing requirements, as contended in the submissions on behalf of the applicant. It follows that the Tribunal does not accept it is necessary to recuse itself due to an apprehension of bias or, alternatively, to await the outcome of the nominator’s application for judicial review before making its decision. In sum, the nominator’s application has been finally determined and there is no persuasive evidence before the Tribunal that the applicant has an approved nomination associated with his Subclass 482 visa application.

    Conclusion

22. The Tribunal notes that the nomination of the applicant for the position of Production or Plant Engineer (ANZSCO 233513) by Premier Ducts (Qld) Pty Ltd (‘the nominator’) has not been approved. It has been finally determined. Accordingly, the Tribunal finds that there is not an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. Therefore, the requirements of cl.482.212(1) are not met.

23. For the reasons expressed above, the Tribunal finds that the requirements for the Subclass 482 visa in the Medium-term stream have not been satisfied. No claims have been made in respect of the other streams for the visa and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams.

24. Given that the applicant has not met the requirements for the grant of a Subclass 482 visa and is not the holder of a Subclass 457 or Subclass 482 visa, it follows that the second and third named applicants do not satisfy the requirements of cl.482.312. The Tribunal so finds.

    decision

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

    K. Chapman
    Member