Chiu (Migration)

[2022] AATA 2742

Chiu (Migration) [2022] AATA 2742 (9 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Cheuk Lun Chiu

Mr Pak Chuen Li

REPRESENTATIVE:  Mr Abhinav Goyal (MARN: 1800208)

CASE NUMBER:  1910077

HOME AFFAIRS REFERENCE(S):          BCC2019/1266595

MEMBER:Alan McMurran

DATE:9 August 2022

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; and

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

·cl 482.312 of Schedule 2 to the Regulations.

Statement made on 09 August 2022 at 6:20pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – general accountant – subject of approved position nomination – refusal of related nomination application set aside on review – joint hearing of nomination and visa reviews – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), r 2.75, Schedule 2, cls 482.212(1), 482.312

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 17 April 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 13 March 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.

3. 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. Cheuk Lun Chiu (the applicant), is seeking the visa in the Medium-term stream to work in the nominated occupation of Accountant (General) ANZSCO 221111.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because the nomination identified in the application was not approved under section 140GB of the Act.

5. The applicants appeared before the Tribunal on 15 July 2022 to give evidence and present arguments in a combined hearing with the merits review hearing for the nominator[1]. The Tribunal received oral evidence from a director on behalf of the nominator, Ms Tse, and from the nominee, and submissions from their representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages

   [1] T case 1908111

6. The hearing was conducted by video in accordance with the Tribunal’s current Practice Direction, determined by the Tribunal to be the means of achieving its statutory objective to conduct a hearing which is fair, just, economical, informal, and quick[2]. No objection was taken to the form of the hearing, and the applicants indicated they were ready to proceed, having made written submissions beforehand.  

   [2] Administrative Appeals Tribunal Act 1975, s.2A

7. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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

10. 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.

11. The Tribunal finds that on 9 August 2022, the Tribunal made a decision setting aside the decision not to approve the nomination and substituting a decision that the nomination by the nominator, Surf & Turf Pty Ltd , is approved.

12. The Tribunal further finds on the available information, that the person who made the nomination was an approved work sponsor at the time the nomination was approved, and that the approval of the nomination has not ceased under regulation 2.75.

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

    Secondary applicant

14. The Tribunal finds on the available information that the secondary applicant is a spouse or  defacto partner of the primary applicant, and a member of the family unit of the primary applicant.

15. The secondary applicant therefore meets the requirements of cl. 482.312.

16. The appropriate course is therefore to remit the application by the secondary applicant along with the visa application by the primary applicant for reconsideration.

    Conclusion

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

    DECISION

18. 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; and

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

    ·cl 482.312

    Alan McMurran
    Member