Yoon (Migration)

[2024] AATA 1610

Yoon (Migration) [2024] AATA 1610 (18 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kiduk Yoon

REPRESENTATIVE:  Mr Hyunglak Park (MARN: 1686362)

CASE NUMBER:  2112136

HOME AFFAIRS REFERENCE(S):          BCC2020/1786812

MEMBER:C. Packer

DATE:18 April 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 18 April 2024 at 10.16am

CATCHWORDS   
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482 – short-term stream – Hairdresser – applicant did not provide information that addressed the relevant criteria within the prescribed period – no current information before the Tribunal that shows the applicant has an intention to perform the nominated occupation – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cl 482.221

CASES
Hasran v MIAC [2010] FCAFC 40

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 2 September 2021 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 23 June 2020. 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 Short-term stream to work in the nominated occupation of Hairdresser – 391111.

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 482.221 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant had provided acceptable evidence to substantiate his claimed employment.

4. On 15 March 2024 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the applicant to provide information that addressed the relevant criteria. The invitation was sent to the last address provided in connection with the review, and advised that if the information was not provided in writing by 2 April 2024 the Tribunal may make a decision on the review without taking further steps to obtain their views on the information, and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. However, the applicant did not provide information that addressed the relevant criteria within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision.

6. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 482.2 provides that ‘All criteria must be satisfied at the time a decision is made on the application.’.

   Genuine position and intention to perform occupation

8. Clause 482.212(2) requires that the applicant’s intention to perform the nominated occupation is genuine and the position associated with the nominated occupation is genuine.

9. On 15 March 2024 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide information that addressed the relevant criteria, including information that shows he continues to be nominated by the sponsor, and information that shows all of his employment in Australia to the current date. However, the applicant did not provide information that addressed the relevant criteria within the prescribed period.

10. The applicant last provided information to the Tribunal in September 2021, now two and a half years in the past. There is no current information before the Tribunal that shows the applicant has an intention to perform the nominated occupation, and no current information that shows the sponsor continues to seek to nominate and employ the applicant. In sum, the Tribunal is not satisfied that the applicant’s intention to perform the nominated occupation is genuine and the position associated with the nominated occupation is genuine.

11. For these reasons the requirements of cl 482.212(2) are not met.

    Conclusion

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

    DECISION

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

    C. Packer
    Member