Ishihara (Migration)

[2024] AATA 68

Ishihara (Migration) [2024] AATA 68 (16 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tatsuya

Ishihara

Ms Mayu Matsumori

REPRESENTATIVE:  Mr Michael Thomson

CASE NUMBER:  2102940

HOME AFFAIRS REFERENCE(S):          BCC2020/2181168

MEMBER:K. Chapman

DATE:16 January 2024

PLACE OF DECISION:  Brisbane

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 of Schedule 2 to the Regulations.

Statement made on 16 January 2024 at 8:56am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Chef – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 140
Migration Regulations 1994, Schedule 2, cl 482.212; r 2.72

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 9 March 2021, to refuse to grant the applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The first named applicant applied for the visa on 27 August 2020, including the second named applicant in the visa application. In the present matter, the first named applicant (hereafter ‘the applicant’) seeks the visa to work in the nominated occupation of Chef (ANZSCO 351311). His position was nominated by Atsushi Train Pty Ltd (‘the nominator’). The nominator operates a Japanese restaurant at Miami on the Gold Coast in Queensland.

3. At the time of application, 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 matter, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Chef (ANZSCO 351311).

4. The delegate refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations, because he was not the subject of an approved nomination as required. On 9 March 2021, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with his application for review.

5. The applicant appeared by video before the Tribunal on 15 December 2023 to give evidence and present arguments. He confirmed that he was comfortable participating in the hearing by video. The Tribunal also took evidence by video from the second named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages, with the applicant confirming he understood the interpreting service. The applicant was represented by Counsel at the review hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present review is whether the applicant meets the requirements of cl 482.212.

   Requirement for an approved nomination

8. 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 it has not ceased.

9. The Tribunal notes that the nomination of the applicant for the position of Chef (ANZSCO 351311) by Atsushi Train Pty Ltd (‘the nominator’) was refused by the Department on 4 February 2021. However, on 15 January 2024, the Tribunal set aside the decision not to approve the nomination and substituted a decision that the nomination is approved (see AAT matter 2101623).

10. Following careful consideration of the evidence, the Tribunal is satisfied that the nomination of the applicant in the occupation of Chef (ANZSCO 351311) has been approved under s 140GB of the Act and reg 2.72 of the Regulations. Furthermore, the Tribunal is satisfied that at the time of the aforementioned approval, the nominator was a standard business sponsor. Additionally, the Tribunal is satisfied that the nomination has not ceased.

11. For these reasons the requirements of cl 482.212(1) are satisfied by the applicant.

    Other relevant matters

12. Given the delay in this review caused by the COVID-19 pandemic, the Tribunal has proceeded to determine the other relevant matters contained in cl 482.212.

13. Having regard to the evidence of the applicant at the review hearing, and relevant evidence from the nominator’s review application, the Tribunal is satisfied of the following matters. The applicant’s intention to perform the nominated occupation is genuine and the position associated with the nominated occupation is also genuine. The applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. The Tribunal does not consider it necessary for the applicant to demonstrate the skills necessary to perform the tasks of the nominated occupation, given it is satisfied of his skills based upon the submitted evidence.

14. Accordingly, the applicant satisfies cl 482.212(2) and cl 482.212(3), with cl 482.212(4) not being relevant to the present review.

    CONCLUSION

15. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for Subclass 482 visas.

16. The Tribunal notes that as the second named applicant applied for the visa on the basis of being a member of the family unit of the applicant, her outcome will be determined by reference to the outcome of the latter’s application on remittal to the Department for reconsideration.

    DECISION

17. The Tribunal remits the application 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 of Schedule 2 to the Regulations.

    K. Chapman
    Member