Wang (Migration)

[2024] AATA 566

Wang (Migration) [2024] AATA 566 (15 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms ZhuoRu Wang

REPRESENTATIVE:  Mr Xi Lin

CASE NUMBER:  1934882

HOME AFFAIRS REFERENCE(S):          BCC2019/5294185

MEMBER:Antonio Dronjic

DATE:15 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 15 March 2024 at 10:36am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Café or Restaurant Manager – subject of an approved nomination – response to s.359A letter – application for judicial review filed for refused nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

CASES
MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233

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 9 December 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 22 October 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. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of a Café or Restaurant Manager (ANZSCO 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(1) of Schedule 2 to the Regulations because the nomination application lodged by the applicant’s prospective employer Golden Lake Native Products Pty Ltd was refused by the Department on 8 November 2019.

4. The applicant applied for a review of the Department’s decision on 10 December 2019 and with the review application submitted a copy of the primary decision record.

5. On 4 January 2024, the Tribunal wrote to the applicant inviting comments on or response to the information under s 359A. The s 359A letter sought the applicant’s comment on or response to the following information:

   ·On 21 October 2019, Golden Lake Native Products Pty Ltd (“the nominator”) applied to the Department of Home Affairs (“the Department”) to nominate you for the position of ‘Café or Restaurant Manager’ (ANZSCO 141111).

   ·On 8 November 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 2 January 2024, the Tribunal affirmed the decision not to approve the nomination. This means that the nomination application relating to the position specified in your visa application has not been approved.

6. The Tribunal explained the relevance of the information and consequences of the Tribunal relying on the above information. The invitation was sent to the applicant’s address provided in connection with the review and advised that, if the comments on or response to the information was not provided in writing by 18 January 2024, and no extension of time has been sought or granted, the Tribunal may decide on the review without taking further steps to obtain the comments on or response to the information contained in the Tribunal letter of 4 January 2024.

7. On 17 January 2024, the applicant responded to the Tribunal letter of 4 January 2024 by informing the Tribunal that Ms Wang retained solicitors to file a judicial review application in relation to the Tribunal’s decision of 2 January 2024, related to the nomination application. With the same letter, the applicant sought an extension of time to provide her comments or response to the Tribunal’s letter of 4 January 2024 until the conclusion of the judicial review application.

8. On 18 January 2024, the Tribunal wrote to the applicant informing her that, relying on the authority in MIAC v Saba Bros Tiling Pty Ltd [2011], FCA 233, any response to a s 359A letter is considered to be a response and accordingly the Tribunal has taken the applicant’s letter of 17 January 2024 to be a valid response to the Tribunal letter of 4 January 2024. The Tribunal informed the applicant that no extension of time to provide comments on or response to the Tribunal’s letter of 4 January was granted and that hearing will be scheduled.

9. On 30 January 2024, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a video hearing scheduled for 14 March 2024. On 23 February 2024, the Tribunal wrote to the applicant informing her that the hearing was re-scheduled for 13 March 2024.

10. On 26 February 2024, the applicant’s representative wrote to the Tribunal informing it that the application for judicial review of the Tribunal’s decision of 2 January 2024 was filed at the Federal Circuit and Family Court (FCFC) of Australia on 2 February 2024 on behalf of Golden Lake Native Products Pty Ltd. The representative sought that the hearing scheduled for 13 March 2024, be vacated or adjourned pending the finalisation of the judicial review. The representative enclosed a copy of the Notice of Filing.

11. On the same day, the Tribunal wrote the following letter to the applicant’s representative:

    On 26 February 2024 we received a request that the hearing be postponed or adjourned. The Tribunal Member has considered the request carefully but has decided not to postpone or adjourn the scheduled hearing.

    The Tribunal Member acknowledges that the applicant commenced judicial review proceedings before the Federal Circuit and Family Court on 2 January 2024.

    The Tribunal Member considers that it is unclear when judgment will be delivered by the Federal Circuit and Family Court. This is not a case where the Tribunal is being asked to adjourn the review to await an outcome which is imminent. In addition, there is no evidence before the Tribunal to suggest that the judgment would be favourable to the applicant in the present circumstances of this case.

    The Tribunal Member notes that, if the applicant’s employer is successful in challenging the Tribunal’s decision related to the nomination application, and the visa decision was based on the nomination decision, the visa decision could not stand (Mora v Minister for Immigration and Border Protection [2018] FCA 1819). The Tribunal acknowledges that the applicant would be required to commence a judicial review in respect of the visa refusal and meet the cost associated with lodging a separate judicial review application.

    For the reasons stated above, the Tribunal Member has decided not to adjourn the scheduled hearing pending the finalisation of the judicial review.

12. On 1 March 2024, the applicant’s representative requested an extension of time to respond to the hearing invitation and provide submissions.

13. On 4 March 2024, the Tribunal wrote to the applicant’s representative refusing the request and reiterating the response provided on 26 February 2024.

14. On 9 March 2024, the applicant’s representative provided submissions stating that the Tribunal’s refusal to adjourn the hearing until the judicial proceedings related to a nomination application lodged on behalf of Golden Lake Native Products Pty Ltd are finalised before the FCFC, was unreasonable in the circumstances. It was, inter alia submitted that basic procedural fairness commands ‘briefly waiting the imminent Federal Court decision’ on the pivotal nomination refusal; that despite the uncertainty in the judicial review case, it is likely to be relatively short in comparison with the current delay and that proceeding without awaiting the imminent judicial review risks unreasonable prejudice.

15. On 9 March 2024, the applicant submitted a response to the hearing invitation indicating that both the applicant and her representative will attend the scheduled hearing.

16. The applicant appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review and her representative attended the Tribunal hearing.

17. Ms Wang stated that she first came to Australia in 2005. She currently holds a bridging visa and works as a restaurant manager at Cafe Del Corso located in Flinders Lane Melbourne CBD, the business operated by Golden Lake Native Products Pty Ltd.

18. She gave evidence that Cafe Del Corso was closed in March 2020 due to the COVID-19 pandemic-related trade restrictions. The restaurant remained closed until December 2023 as the owners undertook minor renovations.

19. When questioned as to what she was doing in Australia during this period when the restaurant was closed for business (for 3 and-a-half years) Ms Wang stated that she occasionally attended the restaurant premises to supervise the renovation work. She gave evidence that she was paid by the business owner for this work but was unable to recall how much.

20. She gave evidence that her current annual salary is $70,000 but was unable to recall what her salary was during the 2022/23 financial year. She gave evidence that a liquor licence for the restaurant is issued under her name because one of the business owners lives in China and the other one in Sydney. She further stated that she is not sure if she is the nominated guarantor on the lease of the premises agreement and that she did not invest her money in the restaurant.

21. She confirmed that she received and understood the Tribunal’s letter of 4 January 2024, inviting her to provide comments on or response to the information under s 359A and that she is aware of the judicial proceedings commenced before the FCFC in relation to the Tribunal’s decision to affirm the Department’s decision not to approve the nomination application lodged by her employer.

22. The applicant’s representative reiterated statements contained in his written submissions of 9 March 2024. The Tribunal noted that in his submissions, the representative stated that ‘procedural fairness commands briefly waiting the imminent FC decision’ and enquired what is the basis for expecting ‘imminent Court decision’.

23. The representative confirmed that the application for judicial review was filled at FCFC on 2 February 2024 and that the Minister filed the response on 27 February 2024. He conceded that no date was set for the direction hearing and that, in his response, the Minister stated that the application for judicial review has failed to establish any jurisdictional error in the decision of the Tribunal of 2 January 2024.

24. The Tribunal observed that it can take up to 24 months to have the direction hearing scheduled and up to 4 years to have the substantive hearing scheduled at the Melbourne Registry of the FCFC. The representative conceded that there will be no imminent Court decision but reiterated that the applicant lodged review application with this Tribunal in December 2019 and waited 4 years for the outcome of her application.

25. The Tribunal indicated that it will not postpone making its decision in this matter until the judicial proceedings related to nomination refusal are finalised before the FCFC for the same reasons as stated in its letter of 26 February 2024, and that it will proceed to make its decision based on the evidence before it.

26. 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

27. 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.

28. Based on the evidence before it, the Tribunal finds that, at the time of the Tribunal decision, the nomination identified in the application has not been approved under s 140GB of the Act. Accordingly, the Tribunal finds that the applicant does not satisfy cl 482.212 (1) of Schedule 2 to the Regulations.

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

    DECISION

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

    Antonio Dronjic
    Member