Gardi Hewa Pattinige (Migration)

[2022] AATA 2199

Gardi Hewa Pattinige (Migration) [2022] AATA 2199 (8 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amila Deshantha Gardi Hewa Pattinige

REPRESENTATIVE:  Miss Rowena Prasad (MARN: 1279309)

CASE NUMBER:  1830988

HOME AFFAIRS REFERENCE(S):          BCC2018/2200838

MEMBER:Deputy President J.L Redfern PSM

DATE:8 July 2022

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 clauses 482.212(1) and (2) of Schedule 2 to the Regulations.

Statement made on 08 July 2022 at 5:17pm

CATCHWORDS:
MIGRATION – temporary skill shortage (class GK) visa – subclass 482 – short-term stream – genuine position – approved nomination – decision under review remit with direction

LEGISLATION:

Migration Act 1958, ss 65
Migration Regulations 1994, Sch 2 Part 482

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 19 October 2018 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, Mr Amila Deshantha Gardi Hewa Pattinige (Mr Amila), applied for the visa on 22 May 2018. 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.

3. In this case, Mr Amila is seeking the visa in the Medium-term stream to work in the nominated occupation of Chief Executive Officer (ANZSCO 111111). He was nominated for this position by Project 42 Pty Ltd (Project 42). Project 42 was established in 2018.

4. The application for approval of the nomination by Project 42 was refused on 20 September 2018 because the delegate was not satisfied that the nominated position of Chief Executive Officer was a genuine position.

5. The delegate refused to grant the visa on the basis that the Mr Amila did not satisfy the requirements of clause 482.212(1) of Schedule 2 to the Regulations because he did not have an approved nomination. The delegate did not assess the application against any other required criteria.

6. Project 42 applied to the Tribunal for review of the refusal of the nomination. Project 42 and Mr Amila were represented in relation to the review by a registered migration agent, Miss Rowena Prasad (Miss Prasad). On 6 September 2021, the Tribunal requested further information in support of the claims. On 16 September 2021, the Tribunal received a request for an extension of time to provide the information from Miss Prasad. On 17 September 2021, the Tribunal agreed to grant an extension of time and that the requested information was to be provided by 27 September 2021. On 27 September 2021, the Tribunal received submissions and updated evidence in support of the application for review.

7. Project 42 and Mr Amila appeared before the Tribunal on 25 February 2022 and were represented by Miss Prasad. Oral evidence was provided by the director and shareholder Mr Amila. During the course of the first hearing, I requested further information and the hearing was adjourned to 17 June 2022 to give Project 42 the opportunity to provide further evidence and submissions in support of the nomination. Mr Amila again appeared before the Tribunal and gave evidence in relation to those matters.

8. In the matter of Project 42 (matter no. 1829604), I found that Project 42 met all of the requirements for approval of the nomination in respect of Mr Amila. I therefore set aside the decision not to approve the nomination of Project 42 and substituted a decision that the nomination is approved.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether Mr Amila meets the requirements of clause 482.212(1) of Schedule 2 to the Regulations.

11. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a nominee who was an approved work sponsor at the time of approval, and the nomination has not ceased.

12. Given my findings and orders in matter number 1829604, I am satisfied that Mr Amila meets the requirements of clause 482.212(1) of Schedule 2 to the Regulations.

13. Even though the delegate did not consider this, I have considered the question of whether Mr Amila also meets the requirements of clause 482.212(2), which requires that the applicant’s intention to perform the nominated occupation is genuine and that the position associated with the nominated occupation is genuine. Based on the evidence given by Mr Amila at the hearing and my findings in matter number 1829604 to the effect that I am satisfied the position is genuine, I am also satisfied that Mr Amila meets the requirements of clause 482.212(2).

14. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

15. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets clauses 482.212(1) and (2) of Schedule 2 to the Regulations.

    J.L Redfern PSM
    Deputy President