Gunaydin (Migration) - [2024] AATA 70

Gunaydin (Migration) [2024] AATA 70 (16 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Can Gunaydin
REPRESENTATIVE:  Ms Reyhan Ozdemir (MARN: 1573815)
CASE NUMBER:  2109309
HOME AFFAIRS REFERENCE(S):          BCC2021/353020

MEMBER:Alan McMurran
DATE:16 January 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Skilled Employer Sponsored Regional (Provisional) (class PE) Skilled Employer Sponsored Regional (Provisional) (subclass 494) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa:
·cl 494.213 of Schedule 2 to the Regulations.

Statement made on 16 January 2024 at 2:38pm

CATCHWORDS
MIGRATION – Skilled Employer Sponsored Regional (Provisional) (Class PE) visa – Subclass 494 Skilled Employer Sponsored Regional (Provisional) – Employer Sponsored stream – position of Retail Manager (General) – nomination approved upon review – genuine position – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 140
Migration Regulations 1994, Schedule 2, cl 482.213; r 2.75
CASES
Bakri v MIBP [2015] FCCA 3059
Cargo First Pty Ltd v MIBP(2015) 298 FLR 138

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 22 July 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 9 July 2021 to refuse to grant the visa applicant a Skilled Employer Sponsored Regional (Provisional) (Class PE) Subclass 494 visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The visa applicant, Mr Can Gunaydin, (“the applicant”) is a 35-year-old citizen of the Republic of Turkiye, who is seeking the visa to work in the nominated position of Retail Manager(General) (ANZSCO 142111) for the nominator, Phoenix Kebabs Pty Ltd (the nominator/sponsor) at Mooloolaba in regional south-east Queensland.
The applicant applied for the visa on 10 March 2021. The delegate refused to grant the visa on the basis that the applicant did not meet cl 494.213(1)(a) of Schedule 2 of the Migration Regulations 1994 Cth (“the Regulations”). This was because the nomination by the nominator was not approved under section 140GB of the Act.
The criteria for a Subclass 494 visa are set out in Part 494 of Schedule 2 to the Regulations. The applicant must meet the common criteria as well as the criteria in one of two alternative visa streams: the Employer Sponsored stream or the Labour Agreement stream. In the present case, the applicant is seeking the visa in the Employer Sponsored stream.
The applicant appeared before the Tribunal sitting in Sydney on Friday 12 January 2024, by video from Queensland where the sponsor’s business is located. The hearing was conducted as a combined hearing with the review of the nomination refusal[1]. The sponsor’s director, Mr Ahmet Anil Onogur, (“the director”) who is an Australian citizen, appeared for the nominator to give evidence and present arguments, alongside the applicant, who also gave evidence and made submissions for the review of his visa refusal.
[1] Tribunal case 2108107
The applicant was represented in relation to the review. The representative also appeared for the hearing and made submissions on behalf of both the applicant and the director.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets cl 494.213 and is the subject of an approved nomination.
Nomination of a position
Where the applicant applies for a Subclass 494 visa in the Employer Sponsored stream, the criteria in Subdivisions 494.21 and 494.22 are the primary criteria for the grant of the visa which include common criteria as well as criteria for the stream they have applied for.
The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. All criteria must be satisfied at the time a decision is made on the application.
Clause 494.213 of Schedule 2 to the Regulations as applicable in this case sets out that:
(1) Each of the following applies:
(a) the nomination identified in the application has been approved under section 140GB of the Act;
(b) the person who made the nomination was an approved work sponsor at the time the nomination was approved;
(c) the approval of the nomination has not ceased under regulation 2.75B.
(2) Both of the following apply:
(a) the applicant’s intention to perform the nominated occupation is genuine;
(b) the position associated with the nominated occupation is genuine.
Essentially, the provision requires that the position to which the application relates for the visa nominee in the present case be the subject of an application for approval of a nomination in the Employer Sponsored stream, for employers in regional Australia recruiting skilled overseas workers to work in occupations specified in an instrument located in regional Australia. The visa application must identify the nomination, and the nomination must be approved and not ceased.
From the information available from the Department and Tribunal files and from the hearing, the Tribunal finds that the applicant is the subject of an application for a position in the Employer Sponsored stream to work in the position of Retail Manager(General) for the sponsor’s business, styled as Phoenix Kebabs at Mooloolaba in regional South East Queensland.
On Friday 12 January 2024, the Tribunal similarly constituted, reviewed the nomination decision and this review of the visa decision at a combined hearing. The Tribunal found that the person who will employ the applicant is the sponsor and is the person who made the nomination application on 23 October 2020. The Tribunal found that the nomination was made by the sponsor who was an approved work sponsor at the time of the Tribunal decision when the nomination was approved.
At the combined hearing, the Tribunal also considered the issue of genuine position and intention to perform the occupation (cl 494.213(2)). The Tribunal had regard to relevant case law[2]. Having regard to the oral evidence on that occasion, the Tribunal found that the applicant’s intention to perform the nominated occupation is genuine. The Tribunal further found that the position associated with the nominated occupation is genuine.[3]
[2] See also Bakri v MIBP [2015] FCCA 3059 and the earlier authority of Cargo First Pty Ltd v MIBP(2015) 298 FLR 138 as considered
[3] Tribunal decision in related nomination case 2108107 at pars 57-91;
The Tribunal has not repeated here all the evidence and findings from the combined hearing with the related nomination decision, and which included consideration of whether the position nominated was genuine. The Tribunal relies upon those findings however as if they were set out herein in full relevant to cl 494.213 of Schedule 2 to the Regulations.
On 16 January 2024, the Tribunal set aside the nomination decision and substituted a decision that the nomination is approved under section 140GB of the Act.
The Tribunal finds therefore that for the purpose of the visa application, the nomination is approved, the person who made the nomination was an approved work sponsor at the time the nomination was approved (16 January 2024) and the approval of the nomination has not ceased under regulation 2.75B.
The applicant therefore meets cl 494.213(1).
For the above reasons, the Tribunal finds that in relation to the applicant’s intention to perform the nominated occupation, and the position associated with the nominated occupation, that they are both genuine, and cl 494.213(2) is also met.
For these reasons, the Tribunal finds that cl 494.213 of Schedule 2 to the Regulations is met.
DECISION
The Tribunal remits the application for a Skilled Employer Sponsored Regional (Provisional) (class PE) Skilled Employer Sponsored Regional (Provisional) (subclass 494) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa:
·cl 494.213 of Schedule 2 to the Regulations.
Alan McMurran
Member