Cheung (Migration)

[2023] AATA 3163

Cheung (Migration) [2023] AATA 3163 (1 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ying

Kit Cheung

Ms Liyi Chen

REPRESENTATIVE:  Ms Rebecca Matanle (MARN: 0301439)

CASE NUMBER:  1936584

HOME AFFAIRS REFERENCE(S):          BCC2019/5372458

MEMBER:Karen McNamara

DATE:1 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

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

Statement made on 01 September 2023 at 2:04pm

CATCHWORDS  
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Butcher or Smallgoods Maker – 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 16 December 2019, to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 25 October 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 primary visa applicant Mr Ying Kit Cheung (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Butcher or Smallgoods Maker (ANZSCO 351211).

3. On 16 December 2019, the delegate refused to grant the visas on the basis that the first named applicant, Mr Ying Kit Cheung did not satisfy the requirements of cl.482.212(1) of Schedule 2 to the Regulations, because he was not the subject of an approved nomination by an approved Standard Business Sponsor (SBS). The delegate found that the applicant’s employer Fresh Food Market Rooty Hill Pty Ltd, did not have an approved nomination for the applicant. Accordingly, the applicant did not meet cl.482.212(1) and therefore did not meet cl.482.212.

4. The delegate also found that the second named applicant, Ms Liyi Chen, could not be granted a Subclass 482 visa, as she did not meet the secondary visa criterion (cl.482.312) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 457 visa or a Subclass 482 visa.

5. The applicants applied to the Tribunal on 30 December 2019, for review of the delegate’s decision

6. On 8 August 2023, Mr Ying Kit Cheung appeared before the Tribunal via telephone on behalf of the applicants to give evidence and present arguments. The Tribunal also received oral evidence from Ms Xiao Ling Guo (the nominator), in the related matter for the nomination review application (AAT Case file 1934426). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of clause 482.212(1).

    Requirement for an approved nomination

11. 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.

12. The nominating employer, Fresh Food Market Rooty Hill Pty Ltd, applied to the Department for approval of a nomination in relation to the occupation of Butcher or Smallgoods Maker (ANZSCO 351211). That nomination was refused by the Department on 15 November 2019 and consequently the applicants’ visa applications were refused.

13. Fresh Food Market Rooty Hill Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1934426). On 1 September 2023 the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination. Therefore, the applicant satisfies cl.482.212(1)(a) of Schedule 2 to the regulations.

14. The Tribunal is satisfied from the Department’s records that Fresh Food Market Rooty Hill Pty Ltd was most recently approved as a standard business sponsor on 22 July 2022 to 22 July 2027.

15. Accordingly, the Tribunal is satisfied that the nominator is an approved sponsor and was at the time that the nomination was approved and that the approved nomination has not ceased.

16. As the requirements of clauses 482.212(1)(a), (b) and (c) are satisfied, accordingly the requirements in cl.482.212(1) are met as a whole.

17. The second named applicant (Ms Liyi Chen), applied on the basis of being a member of the family unit of the first named applicant (Mr Ying Kit Cheung). The application by Ms Liyi Chen will be determined by reference to the outcome of Mr Ying Kit Cheung’s application on remittal to the Department for consideration.

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

    DECISION

19. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

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

    Karen McNamara
    Member