De Paulo Soares (Migration)

[2019] AATA 5764

De Paulo Soares (Migration) [2019] AATA 5764 (10 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paulo De Paulo Soares

CASE NUMBER:  1911604

HOME AFFAIRS REFERENCE(S):          BCC2019/1454295

MEMBER:Michael Cooke

DATE:10 December 2019

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 10 December 2019 at 2:17pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) – Subclass 482 Temporary Skill Shortage – Short-term stream – no approved nomination – nomination approved upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 3 May 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 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 (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 Other Sports Coach or Instructor.

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 was not the subject of an approved nomination.

4. The applicant appeared before the Tribunal on 2 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer: Mr Paul Jabbour. 

5. The applicant was represented in relation to the review by his registered migration agent.

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 is the subject of an approved nomination.

   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 sponsor at the time of approval and has not ceased.

9. The nomination in the visa application has been subsequently approved (AAT1909063). The nominator is an approved sponsor at the time of approval and the nomination has not ceased.

10. For these reasons 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 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

    Michael Cooke
    Senior Member