Hajas (Migration)

[2024] AATA 698

Hajas (Migration) [2024] AATA 698 (27 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zoltan

Hajas

Ms Valentina Toth

CASE NUMBER:  2116705

HOME AFFAIRS REFERENCE(S):          BCC2021/253583

MEMBER:Alan McMurran

DATE:27 March 2024

PLACE OF DECISION:  Sydney

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 criteria for a Subclass 482 visa:

·cl 482.212(1) of Schedule 2 to the Regulations; and

The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 482 visa:

·cl 482.312 Schedule 2 to the Regulations.

Statement made on 27 March 2024 at 12:35pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – joiner – subject of approved position nomination – refusal of related nomination application set aside on review – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1), 482.312

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 15 November 2011 for review of a decision made by a delegate of the Minister for Home Affairs on 28 October 2021 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, Mr Zoltan Hajas (primary applicant) and Ms Valentina Toth (secondary applicant), who are both nationals of Hungary, applied for the visas on 18 February 2021. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage).

3. 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, the secondary applicant, who is an applicant for the visa need only satisfy the secondary criteria.

4. In this case, the primary applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Joiner ANZSCO 331213. This is a combined application by the visa applicants. The Tribunal has jurisdiction in respect of all applicants, who may be in or outside Australia, but not in immigration clearance.

5. 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(1) of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination. The applicants were represented in relation to the review.

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 the nomination identified in the application and which has been approved under section 140GB of the Act.  

8. The Tribunal has had regard to information from the sponsor’s departmental file, the Tribunal’s case file for this review and the sponsor’s related review application, the Act and the Regulations.

9. On 27 March 2024, the Tribunal made a decision on review without a hearing and on the available information, to set aside the decision not to approve the nomination, and substituting a decision that the nomination is approved[1].

   [1] T case number 2113974

   Requirement for an approved nomination

10. 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.

11. The available information demonstrates and the Tribunal finds that the nomination identified in the application has been approved for the sponsor under section 140GB of the Act and sub-cl 482.212(1)(a) is met.

12. The Tribunal further finds that the sponsor was an approved work sponsor for the period from 30 September 2020 to 30 September 2025 at the time of the nomination approval and sub-cl 482.212(1)(b) is met.

13. The Tribunal finds on the available information that the approval of the nomination as at 27 March 2024 has not ceased and sub-cl 482.212(1)(c) is met.

14. The Tribunal finds therefore that the applicant is the subject of a nomination identified in the visa application which is now approved, was made by a person who was an approved work sponsor at the time of approval, and which sponsorship has not ceased.

15. For these reasons the requirements of cl 482.212(1) are met.

    Secondary applicant

16. Clause 482.312 of Schedule 2 to the Regulations specifies that the secondary applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa.

17. As the applicant is now eligible for holding a Subclass 482 (Temporary Skill Shortage) visa, the appropriate course is to remit the applications for the visas for further consideration.

    Conclusion

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

    DECISION

19. 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 criteria for a Subclass 482 visa:

    cl 482.212(1) of Schedule 2 to the Regulations; and

    The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 482 visa:

    cl 482.312 of Schedule 2 to the Regulations.

    Alan McMurran
    Member