HAN (Migration)

[2022] AATA 1383

HAN (Migration) [2022] AATA 1383 (20 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xiaoxin HAN

REPRESENTATIVE:  Ms FANG LIU (MARN: 1463212)

CASE NUMBER:  1923604

HOME AFFAIRS REFERENCE(S):          BCC2019/3168892

MEMBER:Deputy President J.L Redfern PSM

DATE:20 May 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 20 May 2022 at 4:56pm

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, s 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 16 August 2019 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 Xiaoxin Han, applied for the visa on 24 June 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.

3. In this case, Mr Han is seeking the visa in the Short-term stream to work in the nominated occupation of Poultry Farmer (ANZSCO 121321). He was nominated for this position by Liby Holdings Pty Ltd (Liby Holdings). Liby Holdings operates a poultry farm in regional New South Wales. The business was established in 2014.

4. The application for approval of the nomination was refused because the delegate was not satisfied that the nominated position of Poultry Farmer was a genuine position. In particular, the delegate was not satisfied that Liby Holdings would be able to financially support the position.

5. In this case, the delegate refused to grant the visa on the basis that Mr Han did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because on 16 July 2019 a delegate refused the nomination application for the position of Poultry Farmer. The delegate did not assess the application against any other required criteria.

6. Liby Holdings applied to the Tribunal for review of the refusal of the nomination. In November 2021, the Tribunal requested further information in support of the claims, which was provided on 18 November 2021.

7. Liby Holdings and Mr Han appeared before the Tribunal on 10 February 2022 and were represented in relation to the review by a registered migration agent. Oral evidence was provided by the director, Ms Liang, and Mr Han. Issues arising in the matter were discussed with the migration agent and they were requested to provide further submissions and evidence regarding Mr Han’s earnings, labour market testing, the nomination training contribution charge and any additional information. The information was provided on 14 March 2022 and a resumed hearing was held on 13 April 2022. Further information was provided by Liby Holdings about compliance with the annual earnings requirements for the nomination.

8. In the matter of Liby Holdings (matter no. 1921403) I found that Liby Holdings met all of the requirements for approval of the nomination in respect of Mr Han. I therefore set aside the decision not to approve the nomination of Liby Holdings and substituted a decision that the nomination is approved.

9. For the following reasons, I have decided that this matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether Mr Han meets the requirements of cl 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 person who was an approved work sponsor at the time of approval and has not ceased.

12. Given my findings and orders in matter number 1921403, I am satisfied that Mr Han 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 Han 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 Han at the hearing and my findings in matter number 1921403 to the effect that I am satisfied the position is genuine, I am also satisfied that Mr Han 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