Bailey (Migration)

[2022] AATA 1941

Bailey (Migration) [2022] AATA 1941 (10 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kieran Bailey

REPRESENTATIVE:  Mr James Hammond

CASE NUMBER:  1909465

HOME AFFAIRS REFERENCE(S):          BCC2019/301036

MEMBER:Alan McMurran

DATE:10 May 2022

PLACE OF DECISION:  Sydney

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

Statement made on 10 May 2022 at 4:15pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Drainer – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 16 April 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 February 2019.

3. 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).

4. 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. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Drainer [ANZSCO 334113].

5. The Department 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)(a) of Schedule 2 to the Regulations, because the nomination identified in the application has not been approved under section 140GB of the Act.

6. The applicant appeared before the Tribunal on 10 May 2002 in a combined hearing with the nomination review [1] by Breezie Bee Excavations Pty Ltd (“the nominator”), to give evidence and present arguments. The Tribunal received oral evidence from the nominee.

   [1] T case number 1905922

7. The applicant was represented in relation to the review by his lawyer who also appeared for the review.

8. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the nomination identified in the application has been approved under section 140GB of the Act.  

   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. On 10 May 2022, the Tribunal concluded the review of the nominator’s application. The applicant was present for that review as the sole director and owner of the business of the nominator.  

    The Tribunal found on the available information and the oral evidence that the nomination application could not be approved and the Department decision on the nomination application was affirmed.

12. For these reasons the requirements of cl 482.212(1)(a) are not met.

13. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

    Alan McMurran
    Member