Hongo (Migration)

[2024] AATA 1473

Hongo (Migration) [2024] AATA 1473 (21 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Domingo Almine Hongo

REPRESENTATIVE:  Mrs Jesse Jane Casey (MARN: 1912096)

CASE NUMBER:  2321308

HOME AFFAIRS REFERENCE(S):          BCC2023/3454184

MEMBER:Penelope Hunter

DATE:21 May 2024

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 the following criteria for a Subclass 482 visa:

·cl 482.212(4) of Schedule 2 to the Regulations.

Statement made on 21 May 2024 at 5:01pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Welder (First Class) – skills, qualifications and employment background – TRA Skills Assessment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360

Migration Regulations 1994 (Cth), 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 19 December 2023 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 20 June 2023. 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 Medium-term stream to work in the nominated occupation of Welder (First Class) (ANZSCO 322313).

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(4) of Schedule 2 to the Regulations because they were not satisfied that the applicant had demonstrated, in the manner specified by the Minister, that he had the skills necessary to perform the tasks of the nominated occupation.

4. In response to a request for information from the Tribunal the applicant has provided updated submissions and evidence.

5. In light of the new evidence received, the Tribunal was able to find in favour of the applicant on the basis of the material before it and it dispensed with a hearing pursuant to s 360(2)(a) of the Act.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Applicant’s skills, qualifications and employment background

7. Clause 482.212(3) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl 482.212(4), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.

8. The applicant is a 46 year old male national of the Philippines. On 22 June 2023, the Department wrote to the applicant in relation to the visa application and requested that he provided evidence of a TRA visa skills assessment outcome.

9. In response the applicant submitted a receipt for payment of an assessment by Trades Recognition Australia (TRA) dated 17 June 2023.

10. On 2 November 2023, the Department wrote to the applicant invited him to comment on information that they had received from TRA that he had received an unsuccessful outcome of his skills assessment.

11. The representative for the applicant responded on 2 November 2023, and requested that the applicant wished for the opportunity to undergo a further assessment with TRA. On 11 December 2023, the applicant was advised that the application could not be delayed indefinitely and a decision would be made in 7 days. The delegate subsequently refused the visa.

12. On 9 January 2024, the Tribunal wrote to the applicant and noted that the Department information available indicated that the applicant had made payment for a re-assessment on 30 November 2023. The applicant was requested to provide evidence of his TRA Skills Assessment.

13. On 18 April 2024, the representative for the applicant submitted a TRA Skills Assessment Result Form dated 16 April 2024. This records that the applicant for the nominated occupation of Welder (First Class) (ANZSCO 322313) the assessment of the applicant was successful.

14. In light of this material, the Tribunal is satisfied that the applicant has demonstrated that he has the skills that are necessary to perform the tasks of the nominated occupation in the manner that was specified by the Minister pursuant to the Department request.

15. For these reasons the applicant meets the requirements of cl 482.212(4).

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

    DECISION

17. 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(4) of Schedule 2 to the Regulations.

    Penelope Hunter
    Member