Hwang (Migration)

[2024] ARTA 64

Decision and  
Reasons for Decision

Hwang (Migration) [2024] ARTA 64 (21 November 2024)

Applicant:Mr Jun Hee Hwang

Respondent:  Minister for Home Affairs

Tribunal Number:  2207860

Tribunal:General Member Hoffman

Place:Perth

Date:  21 November 2024

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 21 November 2024 at 1:40pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

STATEMENT OF REASONS

APPLICATION FOR REVIEW

The Tribunal

1. On 30 May 2022, the applicant lodged an application for review of a decision made by a delegate of the Minister for Immigration. The application was lodged with the Administrative Appeals Tribunal (AAT).

2. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.

3. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

   The decision under review

4. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 May 2022 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).

5. The applicant applied for the visa on 8 December 2021. 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 Wall and Floor Tiler (ANZSCO 333411).

6. 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 there was not an approved nomination in place.

7. On 24 October 2024, the Tribunal invited the applicant to attend a hearing on 23 January 2025. The Tribunal then determined that it could make a decision favourable to the applicant on the papers. For that reason, no hearing has been held.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

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. According to the visa application, the nominator was The MK Tiling Service.

13. The MK Tiling Service is the trading name used by KB Family Pty Ltd as trustee for the KB Family Trust.  

14. The Department refused the nomination application made by KB Family Pty Ltd. This Tribunal has reviewed that decision and has made a new decision, approving the nomination application. In so doing, the Tribunal was satisfied that the nominator was an approved work sponsor at the time of approval and that this has not ceased.

15. The Tribunal’s decision to approve the nomination application was made at 12:57 pm (Perth time) on 21 November 2024.

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

    OVERALL CONCLUSION

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

    DECISION

18. 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.

    Date of hearing:  Not applicable

    Representative for the Applicant:           Mr Kris Ahn