Ardianto (Migration)

[2024] AATA 4012

Ardianto (Migration) [2024] AATA 4012 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ossie

Ardianto

Ms Jinmi Kim

REPRESENTATIVE:  Mr Gareth Lewis

CASE NUMBER:  2208357

HOME AFFAIRS REFERENCE(S):          BCC2022/501530

MEMBER:Mary Sheargold

DATE:10 October 2024

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 482.212(1) of Schedule 2 to the Regulations.

Statement made on 10 October 2024 at 5:39pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Chef – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
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 27 May 2022 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 2 March 2022. 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 Chef, ANZSCO 351311.

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(1) of Schedule 2 to the Regulations because the nomination application made by C&C Rocket Pty Ltd for the position of Chef was not approved.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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 first named applicant meets the requirements of cl 482.212(1).

   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. The applicant’s employer, C&C Rocket Pty Ltd, had its nomination for approval of the position of Chef made in respect of the applicant refused by the Department.  The nominator sought review of the refusal decision, and on 10 October 2024, the Tribunal set aside the Department’s decision and substituted a decision to approve C&C Rocket Pty Ltd’s nomination.

10. Accordingly, based on the evidence before it (including the Departmental file), the Tribunal is satisfied that:

    a.the nomination identified in the visa application is approved; and

    b.it was made by C&C Rocket Pty Ltd, which is an approved standard business sponsor until 29 March 2027; and

    c.the nomination has not ceased.

11. Therefore, the Tribunal finds that the requirements of cl 482.212(1) are met.

12. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa, including in relation to the secondary applicant.

    DECISION

13. 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 482.212(1) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member