Chatmi (Migration)

[2023] AATA 4333

Chatmi (Migration) [2023] AATA 4333 (17 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chaimae Chatmi

REPRESENTATIVE:  Mrs Julie Troja (MARN: 1573548)

CASE NUMBER:  2101299

HOME AFFAIRS REFERENCE(S):          BCC2020/1446273

MEMBER:Alan McMurran

DATE:17 December 2023

PLACE OF DECISION:  Sydney

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 17 December 2023 at 4:22pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 140
Migration Regulations 1994, Schedule 2, cl 482.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 5 February 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 28 January 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 28 April 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.

3. In this case, the applicant, a 30 year-old citizen of the Kingdom of Morocco, is seeking the visa in the Medium-term stream to work in the nominated occupation of Civil Engineer (ANZSCO 233211).

4. 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(1) of Schedule 2 to the Regulations because the nomination by the nominator, FCS Concrete Repairs Pty Ltd, was not approved.

5. The applicant appeared by video before the Tribunal in a combined hearing with the review sought by the nominator on 14 December 2023, to give evidence and present arguments. The Tribunal also received oral evidence from a witness for the nominator, Mr Penfold and from the nominator’s director, Mr Saba, as well as the applicant.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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

9. 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.

10. On 15 December 2023, following the nominator’s review, the Tribunal made a decision setting aside the decision not to approve the nomination and substituting a decision that the nomination is approved.

11. The nominator was an approved work sponsor as at the time of the approval by the Tribunal and which sponsorship has not ceased.

12. The Tribunal finds therefore that the applicant is now the subject of a nomination identified in the visa application which is now approved, was made by a person who was an approved work sponsor at the time of approval, and which sponsorship has not ceased.

13. For these reasons the requirements of cl 482.212(1) are met.

    Conclusion

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

15. 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;

    Alan McMurran
    Member