Babrzadeh (Migration)

[2023] AATA 4262

Babrzadeh (Migration) [2023] AATA 4262 (13 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yashar

Babrzadeh

Ms Atousa Setayeshfar

REPRESENTATIVE:  Dr Sirous Ahmadi (MARN: 0854826)

CASE NUMBER:  2102321

HOME AFFAIRS REFERENCE(S):          BCC2020/1173556

MEMBER:Karen McNamara

DATE:13 December 2023

PLACE OF DECISION:  Sydney

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 13 December 2023 at 5:39pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 482.212, 482.312

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 17 February 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 15 March 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 primary visa applicant Mr Yashar Babrzadeh (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Software Engineer (ANZSCO 261313).

3. On 17 February 2021, the delegate refused to grant the visas on the basis that the first named applicant, Mr Yashar Babrzadeh did not satisfy the requirements of cl.482.212(1) of Schedule 2 to the Regulations, because he was not the subject of an approved nomination by an approved Standard Business Sponsor (SBS). The delegate found that the applicant’s employer Wipehero Pty Ltd, did not have an approved nomination for the applicant. Accordingly, the applicant did not meet cl.482.212(1) and therefore did not meet cl.482.212.

4. The delegate also found that the second named applicant, Ms Atousa Setayeshfar, could not be granted a Subclass 482 visa, as she did not meet the secondary visa criterion (cl.482.312) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 457 visa or a Subclass 482 visa.

5. The applicants applied to the Tribunal on 25 February 2021, for review of the delegate’s decision

6. On 23 November 2023, Mr Yashar Babrzadeh appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from                 Mr Gholamreza Keshavarzi (the nominator), in the related matter for the nomination review application (AAT Case file 2101251). Ms Atousa Setayeshfar also addressed the Tribunal. The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the requirements of clause 482.212(1).

   Requirement for an approved nomination

10. 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.

11. The nominating employer, Wipehero Pty Ltd, applied to the Department for approval of a nomination in relation to the occupation of Software Engineer (ANZSCO 261313). That nomination was refused by the Department on 18 January 2021 and consequently the applicants’ visa applications were refused.

12. Wipehero Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.2101251). On 13 December 2023 the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination. Therefore, the applicant satisfies cl.482.212(1)(a) of Schedule 2 to the regulations.

13. The Tribunal is satisfied from the Department’s records that Wipehero Pty Ltd was most recently approved as a standard business sponsor on 23 March 2020 to 23 March 2025.

14. Accordingly, the Tribunal is satisfied that the nominator is an approved sponsor and was at the time that the nomination was approved, and that the approved nomination has not ceased.

15. As the requirements of clauses 482.212(1)(a), (b) and (c) are satisfied, accordingly the requirements in cl.482.212(1) are met as a whole.

16. The second named applicant (Ms Atousa Setayeshfar), applied on the basis of being a member of the family unit of the first named applicant (Mr Yashar Babrzadeh). The application by Ms Atousa Setayeshfar will be determined by reference to the outcome of    Mr Yashar Babrzadeh’s application on remittal to the Department for consideration.

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

    DECISION

18. 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.

    Karen McNamara
    Member