Bazeer (Migration)

[2023] AATA 3685

Bazeer (Migration) [2023] AATA 3685 (12 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kaboor Bazeer

REPRESENTATIVE:  Mr Shiju Mathews (MARN 0637656)

CASE NUMBER:  2101848

HOME AFFAIRS REFERENCE(S):          BCC2020/2928018

MEMBER:Peter Papadopoulos

DATE:12 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 12 October 2023 at 3:50pm

CATCHWORDS 
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Mechanical Engineer – was not the subject of an approved nomination as required – nomination identified in the visa application has not been approved – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 8 February 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 5 January 2021. 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 Mechanical Engineer (ANZSCO 233512).

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 in Part 482 of Schedule 2 to the Regulations because, at the time of the decision, the applicant was not the subject of an approved nomination.

4. The applicant appeared before the Tribunal on 12 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr John Joseph, Director of Aambianz Pty Ltd. 

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether 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.

   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. On 5 January 2021, the nominating business, Aambianz Pty Ltd, lodged with the Department a nomination application in respect of the primary applicant for the nominated position of Mechanical Engineer (ANZSCO 233512).  The nomination was refused on 7 January 2021. On 12 October 2023, the Tribunal affirmed the delegate’s decision not to approve the nomination under s 140GB of the Act because the nominating business, Aambianz Pty Ltd, did not satisfy the labour market testing condition as specified in s 140GBA of the Act.

10. As the nomination identified in the Subclass 482 visa application has not been approved under s 140GB of the Act, the requirements of cl 482.212(1) are not met.

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

    DECISION

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

    Peter Papadopoulos
    Member