Wongwat (Migration)
[2024] ARTA 821
•28 October 2024
Wongwat (Migration) [2024] ARTA 821 (28 October 2024)
Decision and
Reasons for DecisionApplicants:
Miss Anyakan Wongwat
Mr Naratit Khumdinpitak
Respondent: Minister for Home Affairs
Tribunal Number: 2109806
Tribunal: General Member G Hallwood
Place: Adelaide Registry
Date: 28 October 2024
Decision:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.
Statement made on 28 October 2024 at 12:20pm
CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – general accountant – subject of approved position nomination – refusal of related nomination application affirmed on review – consent to decision without hearing – member of family unit partner – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)
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 30 July 2021 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicants applied for the visas on 16 January 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 primary visa applicant (the applicant) is seeking the visa in Medium-term stream to work in the nominated occupation of Accountant General - 221111.
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 at the time of the decision the applicant was not the subject of an approved nomination, and had not withdrawn their application in writing.
On 21 August 2024 the Tribunal wrote to the review applicants by letter addressed to Mr Theeradech Paopeng’s (the appointed representative and authorised recipient) email address, advising that it had considered all the material before it relating to their application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 3 October 2024. On 27 August 2024 the Tribunal was advised in writing that the review applicants did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This advice was from the appointed representative and signed by the primary applicant. The covering email from the appointed representative stated: ‘all applicants will not be attending the hearing’. In response to the hearing invitation question ‘Will you take part in the hearing scheduled for 3 October 2024? Ms Wongwat answered: ‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’. In response to the question ‘Will the following applicant also participate in the hearing? Mr Naratit Khumdinpitak’ Ms Wongwat answered ‘No’.
Mr Khumdinpitak is listed on the application for review as the partner of Ms Wongwat, was included in her visa application, and combined his application for review with Ms Wongwat’s. On the basis of the applicant’s and the representative’s responses, together with the nature of the secondary application, the Tribunal is satisfied Ms Wonwat has the authority to act on behalf of all the applicants. This matter has therefore been determined on the evidence available to the Tribunal.
The applicants were represented in relation to the review.
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 applicant meets the criteria set out in cl 482.212(1).
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.
Mae Cheng Pty Ltd (case number 2108979) sought a review of the delegate’s decision not to approve their nomination in their related matter. On 15 December 2023 the Administrative Appeals Tribunal affirmed the decision not to approve the nomination of the occupation.
As the nomination identified in the applicant’s visa application is not approved the requirement of cl 482.212(1) is not met by Ms Wongwat.
For these reasons the requirements of cl 482.212(1) are not met.
Mr Khumdinpitak’s application is as a member of the family unit of Ms Wongwat and in the absence of her qualifying for a visa Mr Khumdinpitak’s visa application in this case cannot succeed: cl 482.312.
OVERALL CONCLUSION
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 applicants Temporary Skill Shortage (Class GK) visas.
Hearing: Decision on the papers
Representative for the Applicant: Mr Theeradech Paopeng
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