Daby (Migration)

[2024] AATA 2406

Daby (Migration) [2024] AATA 2406 (17 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Krven-vicky

Daby

Mrs Samantha Sharon Diana Daby

Miss Shanone Kiara Anesta Daby

Master Wayne Kelwon Ezekiel Daby

REPRESENTATIVE:  Mr Reza Aein (MARN: 0955595)

CASE NUMBER:  2112339

HOME AFFAIRS REFERENCE(S):          BCC2020/2484680

MEMBER:Warren Stooke AM

DATE:17 June 2024

PLACE OF DECISION:  Melbourne

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

·cl 482.212 of Schedule 2 to the Regulations; and

·cl 482.312 of Schedule 2 to the Regulations.

Statement made on 17 June 2024 at 5:33pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Contract Administrator – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212, 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 25 August 2021 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 16 October 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 primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Contract Administrator – ANZSCO Code: 511111.

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 of Schedule 2 to the Regulations because the applicant did not have an approved standard business sponsor.

4. The applicants appeared before the Tribunal on 6 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kelvin Daby, the owner of Perth Corporate Cleaners Pty Ltd. The Tribunal hearing was conducted in the English language.

5. The applicants were 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 whether the applicant has an approved standard business sponsor for the grant of a 482 visa.

   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. The applicant was granted a Bridging Visa A on 16 October 2020 with condition 8107 work limitation that became active at the end of a Temporary Business Entry visa on 19 October 2020.

10. The applicant provided evidence of a Diploma of Management from the Management Institute of Australia dated 28 January 2016.

11. The applicant provided evidence of undertaking an IELTS English language test dated 26 June 2020 with an overall score of 5.0.

12. The applicant provided evidence of health insurance with HBF that commenced on 14 April 2021.

13. The Department provided correspondence to the applicant with information for comment pursuant to s 57 – Natural Justice on 5 July 2021.

14. The nominating sponsor provided evidence that Perth Corporate Cleaners Pty Ltd was granted an approved sponsorship from 28 January 2016 to 28 January 2021.

15. On 17 June 2024, the Tribunal made a substitute decision in relation to the approval of a standard business sponsor for Perth Corporate Cleaners Pty Ltd in Case Matter 2109103. Accordingly the Tribunal is satisfied that the applicant has an approved standard business sponsor.

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

17. On the basis that the first named applicant has met the required criteria for the grant of a 482 visa, it follows that the secondary applicants are members of a family unit that has met the required criteria.

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 and the secondary applicants meet the following criteria for a Subclass 482 visa:

    ·cl 482.212 of Schedule 2 to the Regulations; and

    ·cl 482.312 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member