Yang (Migration)

[2022] AATA 3849

Yang (Migration) [2022] AATA 3849 (12 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Ms Weixin Yang

Mr Mingxuan Li

REPRESENTATIVE:  Ms Ye Yang (MARN: 0741684)

CASE NUMBER:  1831668

HOME AFFAIRS REFERENCE(S):          BCC2018/3444192

MEMBER:Stephen Witts

DATE:12 October 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2022 at 9:42am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Solid Plasterer – nomination review application withdrawn – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.212

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 22 October 2018 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 11 September 2018. 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.

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 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the subject of an approved nomination.

4. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant is the subject of an approved nomination.

7. The Tribunal notes that it contacted the applicant on 26 September 2022 inviting the applicants to comment on or respond to certain information which the Tribunal considered would subject to the applicant’s response or comments be the reason or part of the reason for affirming the decision under review.

8. In this communication the applicants were informed that its nominator Australian Queensland Organic Farms Pty Ltd, was refused by a delegate to the Minister and that the nominator sought a review of that decision but that that application was subsequently withdrawn and that this means that the nominator’s application for the nominated position has not been approved.

9. The applicants were further informed that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination. It was further stated that this information is relevant in making a decision in that the Tribunal may find that the position specified in the visa application is not the subject of an approved nomination and that this would mean that it did not satisfy a requirement for the grant of the visa and that the decision under review must be affirmed. Comments or a response was invited noting that it must be received by 10 October 2020 and that if the Tribunal did not receive a response within the period allowed it may make a decision on the review without taking further action to obtain the applicant’s views on the information.

10. The Tribunal notes that on 7 October 2022 it received following information from the applicant’s representative:

    “
     I refer to your request of 26 September 2022 for the above named applicant.
    As you may be aware, there is no nomination in place for the position because the nominating company, Lehne Investments (WA) Pty Ltd, withdrew their appeal (Case number: 1836938) on 14 February 2022.
    The applicant is also not working for Lehne Investments any more.
    As such, the applicant, Mengmeng LU, has no further evidence to provide”.

11. The Tribunal notes the evidence provided above and after careful consideration finds that the applicant is not the subject of an approved nomination.

    Requirement for an approved nomination

12. 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.

13. As above, the Tribunal finds that the applicant is not the subject of an approved nomination.

14. For these reasons the requirements of cl 482.212(1) are not met.

15. The Tribunal also finds that as the primary applicant does not fulfil the criteria for the grant of the visa that the secondary applicant also does not fulfil the criteria for the grant of the visa.

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

    decision

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

    Stephen Witts
    Member