Dissanayake Mudiyanselage (Migration)
[2025] ARTA 433
•13 March 2025
DISSANAYAKE MUDIYANSELAGE (MIGRATION) [2025] ARTA 433 (13 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mr Samith Bandara Dissanayake Dissanayake Mudiyanselage
Mrs Lihini Chaturangika NayakarathnaRespondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2215272
Tribunal:Senior Member A Mercer
Place:Melbourne
Date: 13 March 2025
Decision:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the order that the first named applicant meets the following criteria for a subclass 482 visa:
· cl 482.212(1) of Schedule 2 to the Regulations.
Senior Member A Mercer
Statement made on 13 March 2025 at 4:02pm
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – nomination approved upon review – member of the family unit – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.212; r 2.12STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 October 2022 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 1 July 2022. 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 (General).
The delegate in this case refused to grant the visa on the basis that the visa applicant (the applicant) did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because he was not the subject of an approved nomination by his Australian employer. The delegate refused to grant the second named applicant (the applicant’s spouse) a subclass 482 visa as the delegate found that she did not satisfy the secondary criteria requiring her to be a member of the family unit of a person who held a subclass 482 visa, and there was no evidence that she met the primary visa criteria in her own right.
The Tribunal received a review application from the applicants on 17 October 2022. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Sanji Caldera, as their representative and authorised recipient for correspondence.
The applicant appeared before the Tribunal on 7 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employers.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
Requirement for an approved nomination
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.
It is not disputed that at the time that the delegate assessed the applicants’ visa application on 13 October 2022, the applicant was not the subject of an approved nomination by his Australian employer, Oze-Lanka Pty Ltd, as the Department had refused to approve its nomination of the applicant on 9 September 2022.
However, Oze-Lanka Pty Ltd sought review of the nomination refusal decision with the Administrative Appeals Tribunal (as it then was) on 27 September 2022.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
On 13 March 2025, the (new) Tribunal made a decision to set aside the nomination refusal decision and substitute a decision to approve the nomination of the applicant by Oze-Lanka Pty Ltd (see decision 2214275 of 13 March 2025).
Accordingly, the Tribunal is satisfied that the applicant is now the subject of an approved nomination by Oze-Lanka Pty Ltd for the position of Accountant (General).
The Tribunal is further satisfied, from the Department’s records, that Oze-Lanka Pty Ltd is an approved standard business sponsor, and its approval is valid until 29 June 2027.
Given the above, the Tribunal finds that the requirements of cl 482.212(1) are met.
Accordingly, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa. As the second named applicant applied for the visa on the basis of being a member of the family unit of the applicant, her application will also be remitted to the Department for reconsideration upon its reconsideration of the applicant’s application.
DECISION
The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the order that the first named applicant meets the following criteria for a subclass 482 visa:
·cl 482.212(1) of Schedule 2 to the Regulations.
Date(s) of hearing: 7 March 2025
Representative for the Applicant: Mr Sanji Caldera (MARN: 0635492)
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