Bej (Migration)

[2024] AATA 1611

Bej (Migration) [2024] AATA 1611 (22 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nandan Bej

CASE NUMBER:  2107531

HOME AFFAIRS REFERENCE(S):          BCC2020/1970507

MEMBER:Alison Mercer

DATE:22 April 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 22 April 2024 at 3:08pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Medium-term stream – Chef – applicant is subject to an approved standard business sponsor – Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved – decision under review remitted    

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 2 June 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 27 July 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Chef.

3. The delegate in this case refused to grant the visa on the basis that the applicant (the applicant) did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations, which required that (amongst other things) he was the subject of an approved nomination by his Australian employer. The delegate found that the nomination of the applicant by his employer, Sankranti Australia Pty Ltd, had been refused.

4. The Tribunal received a review application from the applicant on 9 June 2021. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed his employer, Mr Prashant Kantu, as his representative and authorised recipient for correspondence.

5. The applicant appeared before the Tribunal on 9 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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 as a Chef by Sankranti Australia Pty Ltd had not been approved by the Department. However, upon review at the Tribunal, the Tribunal set aside the Department’s refusal decision and substituted a decision to approve the nomination (see AAT/MRD file reference 2106760 of 22 April 2024). The Tribunal is satisfied that Sankranti Australia Pty Ltd is an approved standard business sponsor, valid until May 2028.

9. Accordingly, the Tribunal finds 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.

10. For these reasons, the Tribunal finds that the requirements of cl 482.212(1) are met.

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 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