Baseeruddin (Migration)

[2024] AATA 994

Baseeruddin (Migration) [2024] AATA 994 (31 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Baseeruddin

REPRESENTATIVE:  Mr Vishal Sharma (MARN: 0963828)

CASE NUMBER:  2104642

HOME AFFAIRS REFERENCE(S):          BCC2019/6702892

MEMBER:Alison Mercer

DATE:31 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 482 visa:

·cl 482.212(1) of Schedule 2 to the Regulations.

Statement made on 31 March 2024 at 8:41pm

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

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 for review of a decision made by a delegate of the Minister for Home Affairs on 24 March 2021 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 16 December 2019. 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Developer Programmer.

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 of Schedule 2 to the Regulations because the nomination of the applicant by his Australian employer had been refused.

4. The Tribunal received a review application from the applicant on 13 April 2021. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Vishal Sharma, as his representative and authorised recipient for correspondence.

5. The applicant appeared before the Tribunal on 28 February 2024 by videoconference to give evidence and present arguments. The representative also attended the Tribunal hearing by videoconference.

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

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

   Requirement for an approved nomination

7. 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.

8. It is not disputed that at the time of the delegate’s decision, the nomination of the applicant by his Australian employer, Jasmine Technology Pty Ltd, had been refused. However, Jasmine Technology Pty Ltd sought review of the Department’s decision to refuse its nomination of the applicant, and on 31 March 2024, the Tribunal set aside the decision to refuse the nomination application and substituted a decision to approve the nomination.

9. Accordingly, the Tribunal finds that cl.482.212(1) is now met.

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

    DECISION

11. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 482 visa:

    ·cl 482.212(1) of Schedule 2 to the Regulations.

    Alison Mercer
    Member