Dao (Migration)

[2024] AATA 2339

Dao (Migration) [2024] AATA 2339 (27 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Hong

Quyen Dao

Ms Thi Huyen My Hoang

REPRESENTATIVE:  Mr Vinh Duong

CASE NUMBER:  2120202

HOME AFFAIRS REFERENCE(S):          BCC2021/565248

MEMBER:Angela Julian-Armitage

DATE:27 June 2024

PLACE OF DECISION:  Brisbane

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 of Schedule 2 to the Regulations; and that the second named applicant meets;

·cl 482. 312 of Schedule 2 to the Regulations.

Statement made on 27 June 2024 at 10:54am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 14 December 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 20 April 2021. 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 Medium-term stream to work in the nominated occupation of accountant.

3. The delegate 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 due to the absence of an approved nomination relating to the position the applicant was to occupy within the nominator’s business.

4. The applicants appeared before the Tribunal on 8 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ly, the director of the nominating entity.

5. The applicants were represented throughout  the review who was 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. The issue in this case is whether there is an approved nomination for the occupation in place.

   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 27 June 2024, this Tribunal approved the work sponsor’s nomination which has not ceased.

10. For that reason, the requirements of 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 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 of Schedule 2 to the Regulations;

    
    

    and the second named applicant meets;

    ·cl 482.312 of Schedule 2 to the Regulations.

    Angela Julian-Armitage
    Member