Bhatia (Migration) [2024] AATA 687 (25 March 2024)

Last Updated: 12 April 2024

Bhatia (Migration) [2024] AATA 687 (25 March 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mrs Nisha Bhatia
Mr Sumeet Kumar
Master Yash Taya

REPRESENTATIVE: Mr Amanpreet Singh Bhangoo (MARN: 1573884)

CASE NUMBER: 1936386

HOME AFFAIRS REFERENCE(S): BCC2019/5243901

MEMBER: Penelope Hunter

DATE: 25 March 2024

PLACE OF DECISION: Sydney

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

Statement made on 25 March 2024 at 11:41am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – records manager – refusal of related nomination application affirmed on review – no longer working for nominating employer – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 482.211(1), 482.212(1)

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 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 18 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. 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 to work in the nominated occupation of Records Manager.
3. The first named visa applicant is the primary visa applicant (the applicant). The second named visa applicant her spouse, and the third named visa applicant her son.
4. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.211(1) of Schedule 2 to the Regulations. This is because the relevant nomination by her employer Abhay Dhir T/A Dhir & Associates had not been approved.
5. The applicant appeared by telephone before the Tribunal on 21 March 2024 to give evidence and present arguments.
6. The applicants were represented in relation to the review, their representative did not attend the hearing.
7. 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

8. 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.
9. In anticipation of the Tribunal hearing, on 7 March 2024, the Tribunal wrote to the applicant pursuant to the provisions of s 359A of the Act and invited them to comment or respond to information at the hearing on 21 March 2024. The information identified was that the decision to refuse the relevant nomination application by Abhay Dhir T/A Dhir & Associates was affirmed by the Tribunal on review on 23 November 2023. The Tribunal explained the relevance of the information to the applicants and that if it relied on the information it may find that the relevant nomination had not been approved and the applicant would not be able to meet the requirements of cl 481.212(1) of Schedule 2 to the Regulations. Consequently, the decisions under review may be affirmed.
10. On 13 March 2024, the Tribunal received a response from the applicant which included the following documents:
    1. An Australian Taxation Office Income Statement for the Trustee for Dhir Family Trust for the periods, 17 April 2020 to 30 June 2020, 1 July 2020 to 30 June 2021, 1 July 2021 to 30 June 2022, 1 July 2022 to 30 June 2023,1 July 2023 to 12 December 2023.
    2. ATO Notices of Assessment for the applicant for the years ending 30 June 2020, 30 June 2021, 30 June 2022 and 30 June 2023.
    3. Payslips for the applicant from 13 August 2023 to 12 December 2023.
    4. Skills assessment for the applicant dated 28 July 2022.
11. The applicant told the Tribunal at the hearing that she was no longer working for her nominating employer. She had continued in the role of Records Manager with Abhay Dhir & Associates until December 2023. She said that her employer had transferred her position to the Gatton office and with her husband working in Brisbane city, this created some difficulty. In addition, the property that she was living in while working in Gatton was damaged by among other things, significant hailstones and it was extremely hard for her to continue living there on a daily basis. She said that she was currently applying for new employment.
12. Prior to the hearing, on 7 March 2024, the Tribunal had written to the applicant pursuant to the provisions s 359A of the Act and invited comment on information. The relevant information was that on 23 November 2023, upon review, the Tribunal had affirmed the decision of the Minister and refused the nomination application lodged by Abhay Dhir T/A Dhir & Associations. The Tribunal explained the relevance of the information to the applicant and that if it relied on the information it may find that the relevant nomination had not been approved and the applicant may not be able to meet the requirements of cl 482.212(1) of Schedule 2 to the Regulations.
13. When invited to comment on this information at the hearing the applicant said that as the employee she did not have a deep knowledge of the decisions of the business. She wished for the Tribunal to understand that when the Tribunal affirmed the decision to refuse the nomination she was still working for her employer. The applicant claimed that the refusal of the nomination was not her fault and her previous employer did not talk to her about the matter.
14. The Tribunal accepts the evidence of the applicant that she continued to work for her nominating employer until late December 2023. It also accepts that the approval of the nomination application was a matter for her employer to pursue, and not within her control. However, the applicant did not offer any evidence to dispute the refusal of the nomination application which is an essential requirement for the visa grant.
15. Therefore on the evidence the Tribunal finds that the relevant nomination by Abhay Dhir T/A Dhir & Associates identified in the applicant’s nomination application has not been approved.
16. Therefore, cl 482.212(1) is not met, and cl 482.212 of Schedule 2 to the Regulations is not met as a whole.
17. The second and third named applicants have applied for the visa as a member of the family unit of a person who satisfies the primary criteria. There is no evidence that the second or third named applicants would otherwise meet the primary criteria. As the Tribunal has found that the applicant does not satisfy one of the primary criteria it follows that the second named applicant and the third named applicant do not meet the secondary criteria for the visa and the decision to refuse their visas is also affirmed.
18. As essential requirements for the visa are not met, the decisions under review must be affirmed.

DECISION

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

Penelope Hunter
Member