Choo (Migration)

[2022] AATA 874

Choo (Migration) [2022] AATA 874 (13 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mi Yeon Choo

REPRESENTATIVE:  Mr Phillip Jaewoo OH (MARN: 9900334)

CASE NUMBER:  2108066

HOME AFFAIRS REFERENCE(S):          BCC2018/5207853

MEMBER:Namoi Dougall

DATE:13 April 2022

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 13 April 2022 at 11:54am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

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 15 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 22 November 2018. 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 Accountant (General).

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. of Schedule 2 to the Regulations because Ms Mi Yeon Choo (the applicant) was not subject to an approved nomination as the nomination application of his sponsoring employer, Open Tiling Service Pty Ltd (the nominating business) was not approved on 12 May 2021.

4. The applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the director of th nominating business, Mr Kim.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is that relevant criteria 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.

   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 22 November 2018, the nominating business lodged with the Department a nomination application in respect of the applicant for the nominated position of Accountant (General) (ANZSCO 221111) which was refused on 12 May 2021. On 13 April 2022, the Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved.

10. On the above, the Tribunal is satisfied that the criterion in 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; and

    Namoi Dougall
    Member