Almazan (Migration)

[2022] AATA 933

Almazan (Migration) [2022] AATA 933 (28 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Noli Bisquera Almazan

Miss Daena Elysse Almazan

Mrs Melissa Miranda Almazan

Mr Daeron Ezekiel Almazan

REPRESENTATIVE:  Mrs Teresita Sarmiento (MARN: 0742658)

CASE NUMBER:  2118427

HOME AFFAIRS REFERENCE(S):          BCC2021/1387697

MEMBER:Amanda Mendes Da Costa

DATE:28 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

· cl.482.217(1) of Schedule 2 to the Regulations

The Tribunal considers that the applications of the second, third and fourth named applicants should be reconsidered on the basis that they are members of the family unit of a person who met the primary criteria for the grant of a Temporary Skill Shortage (Class GK) visa.

Statement made on 28 March 2022 at 12.31pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Provisional) (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – occupation of Telecommunications Technical Officer or Technologist – evidence about criminal history – Immigration/Citizenship-Australia name Check Only certificates – members of the family unit – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.217; Schedule 4, Public Interest Criterion 4001

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 16 November 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).

2. The applicants applied for the visas on 9 July 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 the Medium-term stream to work in the nominated occupation of telecommunications Technical Officer or Technologist ANZSCO 313214.

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 482.217 of Schedule 2 to the Regulations because the applicant did not meet public interest criteria 4001.

4. On the basis of the material in both the Department’s and Tribunal’s files, and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour.  It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.

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

6. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements of cl.482.217.

8. Clause 482.217(1) requires that the applicant satisfies inter alia Public Interest Criteria (PIC) 4001.

9. On 24 July 2021 the Department requested the first named applicant (the applicant) to provide police certificates from each country where he had lived for a total of 12 months or more in the last 10 years as evidence that he satisfied the character requirements of PIC 4001.  In addition, the applicant was required to provide an Australian Federal Police (AFP) National Police Certificate.  In her decision, the delegate found that the applicant had not responded to these requests.

10. A further request was made by the Department on 23 September 2021 but no response was provided by the applicant.

11. The Tribunal notes that it has been provided with Republic of the Philippines, Department of Justice, National Bureau of Investigation certificates, which show no derogatory record recorded against either the applicant or second named applicant.

12. The Tribunal has further been provided with Immigration/Citizenship-Australia name Check Only certificates dated 28 September 2021 in respect of each of the applicant and second named applicants.  These certificates show that there are no disclosable court outcomes recorded against either of them.

13. For these reasons the requirements of cl.482.217(1) are met and therefore cl.482.217 is met.

14. Given is findings regarding the applicant, the Tribunal considers that the applications of the second, third and fourth named applicants should be reconsidered on the basis that they are members of the family unit of a person who has met the primary criteria for the grant of a Temporary Skill Shortage (Class GK) visa.

15. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

16. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

    · cl. 482.217 of Schedule 2 to the Regulations.

17. The Tribunal considers that the applications of the second, third and fourth named applicants should be reconsidered on the basis that they are members of the family unit of a person who has met the primary criteria for the grant of a Temporary Skill Shortage (Class GK) visa.

    Amanda Mendes Da Costa
    Member