Hidayat (Migration)

[2023] AATA 4064

Hidayat (Migration) [2023] AATA 4064 (24 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Faried Hidayat

REPRESENTATIVE:  Mr Ernest Ng (MARN: 1387964)

CASE NUMBER:  2101789

HOME AFFAIRS REFERENCE(S):          BCC2020/1492526

MEMBER:Amanda Mendes Da Costa

DATE:24 November 2023

PLACE OF DECISION:  Melbourne

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

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

Statement made on 24 November 2023 at 9.57am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Metallurgical or Materials Technician – nomination approved upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 360
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 11 February 2021 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 applied for the visa on 5 May 2020. 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 applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Metallurgical or Materials Technician (ANZSCO 312912).

3. 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 he was not the subject of an approved nomination.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

5. The Tribunal has considered the information in both the Departmental and Tribunal files.

6. The applicant was represented in relation to the review.

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 the applicant meets the criteria in cl 482.212(1) of Schedule 2 to the Regulations.

   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.

10. The Tribunal notes that ICO ASIAPACIFIC AUSTRALIA PTY LTD (the Sponsor) made a nomination application for the position of Metallurgical or Materials Technician in respect of the applicant. This application was refused by a delegate of the Minister and the sponsor subsequently lodged an application with this Tribunal for review of that decision.  On 23 November 2023, the Tribunal set aside the delegate’s decision and substituted its own decision to approve the sponsor’s nomination application.

11. For these reasons, the Tribunal is satisfied that the nomination in the visa application is approved, the nominator was an approved work sponsor ta the time of approval and the nomination has not ceased.

12. Accordingly, the requirements of cl 482.212(1) are met.

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

    DECISION

14. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

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

    Amanda Mendes Da Costa
    Member