Bachan (Migration)

[2024] AATA 399

Bachan (Migration) [2024] AATA 399 (26 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hussein

Bachan

Ms Zainab Mohsen
Miss Rachel

Bachan

REPRESENTATIVE:  Mr Garry Frederick Howard (MARN: 9804095)

CASE NUMBER:  2110367

HOME AFFAIRS REFERENCE(S):          BCC2020/2800106

MEMBER:Antonio Dronjic

DATE:26 February 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 26 February 2024 at 11:10am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 482.212; r 2.75

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 10 August 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 11 December 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 (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Accountant.

3. The delegate in this case refused to grant the visa on the basis that the first named applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because the nomination application lodged by the applicant’s employer was refused by the Department.

4. The applicants applied to the Tribunal on 12 August 2021 for review of the delegate’s decision. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants based on the material before it, pursuant to section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

5. 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.

6. On 6 July 2021, the Department refused the nomination application lodged by the first named applicant’s employer, Filpure Water Filtration Systems Pty Ltd. The nominated occupation was Accountant.

7. On 13 July 2021, Filpure Water Filtration Systems Pty Ltd applied to this Tribunal for review of the Department’s decision to refuse the nomination application.

8. On 20 February 2024, the Tribunal set aside the primary decision and substituted it with its decision that the nomination is approved.

9. Filpure Water Filtration Systems Pty Ltd is currently an approved work sponsor. The representative provided the Tribunal with a copy of the Department's notification to the Company of its approval as a standard business sponsor until 14 December 2025. The Tribunal is satisfied that the approval of the nomination has not ceased under reg. 2.75. Accordingly, the cumulative requirements of cl.482.212(1) of the Regulations are now met.

10. As the second and the third named applicants applied on the basis that they are members of the family unit of the primary applicant, their applications will be determined by reference to the outcome of the applicant's application on remittal to the Department for reconsideration.

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

    DECISION

12. 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.

    Antonio Dronjic
    Member