Gusak (Migration)

[2022] AATA 3793

Gusak (Migration) [2022] AATA 3793 (18 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Davor Gusak

Mrs Danijela Gusak

Miss Tamara Gusak

Miss Ana Gusak

CASE NUMBER:  1912357

HOME AFFAIRS REFERENCE(S):          BCC2019/1877947

MEMBER:Terrence Baxter

DATE:18 October 2022

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 criterion for a Subclass 482 visa:

·cl 482.212(1)(a) of Schedule 2 to the Regulations.

Statement made on 18 October 2022 at 9:00am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Solid Plasterer – nomination approved upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 140
Migration Regulations 1994, 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 17 May 2019 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 15 April 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 (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 Solid Plasterer for So Solid Pty Ltd (the nominator).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations which required (inter alia) that the nomination identified in the visa application had been approved. The delegate found that the applicant had been advised that the prospective sponsoring employer (the nominator) did not have an approved nomination in place for him.

4. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 18 May 2019.

5. The first named and second named applicants appeared before the Tribunal on 13 July 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the sponsor’s nomination application.

6. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether there is an approved nomination.

   Requirement for an approved nomination

9. 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. Clause 482.212(1)(a) specifically requires that the nomination identified in the visa application has been approved under section 140GB of the Act.

10. Records of the Department of Home Affairs (the Department) indicate that the sponsor made an application to the Department to have the occupation of Solid Plasterer approved, with the applicant as nominee, on 11 April 2019. The nomination application was refused on 16 April 2019 and the sponsor sought review of that decision with the Tribunal on 24 April 2019.

11. On 18 October 2022, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by the sponsor.

12. For these reasons the requirements of cl 482.212(1)(a) are met in respect of the applicant.

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

14. The second named, third named and fourth named applicants applied on the basis that each of them is a member of the family unit of the applicant. Their applications will also be determined on remittal to the Department for reconsideration in light of the Tribunal’s findings in relation the first named applicant.

    decision

15. 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 criterion for a Subclass 482 visa:

    ·cl 482.212(1)(a) of Schedule 2 to the Regulations.

    Terrence Baxter
    Member