Varas Elgueta (Migration)

Varas Elgueta (Migration) [2024] AATA 3465 (13 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Cristian Rodrigo Varas Elgueta
REPRESENTATIVE:  Ms Ingrid Meskin (MARN: 0853578)
CASE NUMBER:  2200948
HOME AFFAIRS REFERENCE(S):          BCC2021/272740
MEMBER:Jade Murphy
DATE:13 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.
Statement made on 13 September 2024 at 12:43pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – internal auditor – subject of approved position nomination – refusal of related nomination application affirmed on review – no substantive response to invitation to comment after extension of time – tribunal’s internal review of complaint about nomination review now completed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C(2). 363A, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)
CASE
Singh v MIBP [2017] FCAFC 67

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 14 January 2022 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).
The applicant applied for the visa on 23 February 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Internal Auditor (ANZSCO 221214).
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 relevant nomination was refused by a delegate for the Minister of Home Affairs on 13 December 2021. As a result, the delegate was not satisfied that the position to which the application relates is the subject of an approved nomination.
On 16 August 2024, the Tribunal wrote to the applicant pursuant to s.359A of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information.
The particulars of the information were that the application for review of the related nominated position, made by Black and White Waiters Pty Ltd, was refused by a delegate of the Minister. The named nominator sought a review of that decision, but the decision was affirmed by the Tribunal on 15 August 2024. This means that the nominator’s application for the nominated position has not been approved.
It was explained in the letter to the applicants that this information is relevant to their 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.
The invitation also specifically stated that the Tribunal must receive the applicant’s comments / response, or any request for an extension of time in which to do so, by 30 August 2024, or they would lose any entitlement they might otherwise have under the Act to appear before the Tribunal.
On 29 August 2024 the applicant’s representative wrote to the Tribunal and requested that an extension of time be granted to respond to the invitation because a complaint had been lodged regarding the Tribunal’s handling of the associated nomination review.
On 4 September 2024 the Tribunal wrote to the applicant stating that it did not know how long the Tribunal’s internal, but independent complaints handling procedure would take and it was not minded delaying the making of a decision in this matter to await the outcome of a complaint procedure for another. The Tribunal granted the applicant a further seven days extension to respond to its invitation to comment.
On 9 September 2024 the applicant’s representative wrote to the Tribunal stating that if the Tribunal were to proceed to determine this application without waiting for the completion of the complaints process in the associated matter it will ‘severely prejudice the applicant.’
On 10 September 2024 the Tribunal noted that correspondence was sent to the applicant’s representative, independently of the Presiding Member, confirming that the complaint lodged by the applicant regarding the associated nomination review had been completed.
On 11 September 2024 the Tribunal again wrote to the applicant and advised that a further extension of time, beyond the additional seven days, was considered but not granted in the circumstances.
The Tribunal notes that the seven-day extension of time has now lapsed, however, the applicants did not provide any comments or response within the prescribed period. Nor did the applicants, or their representative, request an extension of time within the prescribed period in which to do so.
The Applicant's Loss of the Right to a Hearing
The Tribunal notes that it sent the invitation under section 359A of the Act to the email address belonging to the applicant’s representative, Ms Ingrid Meskin, which was the last address for service provided by the applicant in connection with the application for review.
However, as noted above, the applicant failed to provide their comments/response to the section 359A invitation within the prescribed period. This means that subsections 359C(2) and subsection 360(3) apply to the applicants and they are not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something they are not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.
In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing. In the case of Singh v MIBP [2017] FCAFC 67 the Court held that the operation of ss.359C(2), 360(3) and 363A has no temporal restriction and can take effect at any time before or after a hearing invitation has been issued and before a hearing takes place.
The applicant was 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 position to which the application relates is the subject of an approved nomination.
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.
On 13 December 2021, the nomination lodged by Black and White Waiters Pty Ltd, being the nomination referred to in paragraph 482.212(1), was refused by a delegate for the Minister of Home Affairs.
On 23 December 2021, Black and White Waiters Pty Ltd, lodged an application for review with the Tribunal.
On 15 August 2024, the Tribunal affirmed the Department’s decision to refuse the nomination application.
As a result, the Tribunal finds that the associated nomination remains refused.
As the nomination (the one referred to in paragraph 482.212(1)) remains refused the Tribunal finds that the position to which the application relates is not the subject of an approved nomination.
For these reasons the requirements of cl 482.212(1) are not met.
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 applicant Temporary Skill Shortage (Class GK) visa.
Jade Murphy
Member

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 position to which the application relates is the subject of an approved nomination.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. On 13 December 2021, the nomination lodged by Black and White Waiters Pty Ltd, being the nomination referred to in paragraph 482.212(1), was refused by a delegate for the Minister of Home Affairs. On 23 December 2021, Black and White Waiters Pty Ltd, lodged an application for review with the Tribunal. On 15 August 2024, the Tribunal affirmed the Department’s decision to refuse the nomination application. As a result, the Tribunal finds that the associated nomination remains refused. As the nomination (the one referred to in paragraph 482.212(1)) remains refused the Tribunal finds that the position to which the application relates is not the subject of an approved nomination. For these reasons the requirements of cl 482.212(1) are not met. 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 applicant Temporary Skill Shortage (Class GK) visa.Jade MurphyMember

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established