Coldebella (Migration)

[2024] AATA 1613

Coldebella (Migration) [2024] AATA 1613 (15 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Elsa Regina Coldebella

REPRESENTATIVE:  Mr Christopher Hugh Levingston

CASE NUMBER:  2107583

HOME AFFAIRS REFERENCE(S):          BCC2020/2046794

MEMBER:Penelope Hunter

DATE:15 April 2024

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 of Schedule 2 to the Regulations.

Statement made on 15 April 2024 at 4:14pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – short-term stream – retail buyer – 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 20 May 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 7 August 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 Short-term stream to work in the nominated occupation of retail buyer (ANZSCO 639211).

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 482.212(1) of Schedule 2 to the Regulations because the nomination identified in the visa application had not been approved.

4. The applicant appeared before the Tribunal on 30 January 2024 to give evidence and present arguments. The hearing was combined with the related review application by her nominating employer H & B Links Pty Ltd. The Tribunal also received oral evidence from the director of H & B Links Pty Ltd, Ms Nina Di Matteo.

5. The applicant was represented in relation to the review, and her representative was also present at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. In the first instance the Department determined to refuse the related nomination application by H & B Links Pty Ltd. Upon review the Tribunal was provided with considerably more information relevant to the applicant’s employment circumstances and the related nomination application. On 15 April 2024, the Tribunal determined to set aside the decision not to approve the nomination and substituted a decision that the nomination by H & B Links Pty Ltd was approved.

9. As the relevant nomination has been approved, the applicant now satisfies cl 482.212(1)(a). On the material before it the Tribunal is also satisfied that the person who made the nomination was an approved sponsor at the time and that the nomination has not ceased.

10. For these reasons the requirements of cl 482.212(1) of Schedule 2 to the Regulations 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 of Schedule 2 to the Regulations.

    Penelope Hunter
    Member