Jacinto (Migration)

[2022] AATA 1572

Jacinto (Migration) [2022] AATA 1572 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Jem Jost Jacinto

Ms Yvette Khristine Jacinto

Mr Luca Jost Jacinto

REPRESENTATIVE:  Ms Angela De Silva

CASE NUMBER:  1900220

HOME AFFAIRS REFERENCE(S):          BCC2018/2707460

MEMBER:Angela Julian-Armitage

DATE:7 April 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants, Mr Jem Jost Jacinto, Ms Yvette Kristine Jacinto and Mr Luca Jost Jacinto, Temporary Skill Shortage (Class GK) visas.

Statement made on 07 April 2022 at 11:51am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skills Shortage) – medium-term stream – corporate general manager – subject of approved position nomination – refusal of related nomination application affirmed on review – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212(1), 482.312

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 17 December 2018 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 19 July 2018. 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 primary visa applicant (the applicant) is seeking the visa in the Medium-Term stream to work in the nominated occupation of Corporate General Manager.

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 the associated nomination was not approved.

4. The applicants appeared before the Tribunal on 6 April 2022 to give evidence and present arguments. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the associated nomination has been approved.

   Requirement for an approved nomination

7. 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.

8. The refusal of the nomination identified in this visa application was reviewed by the Tribunal. The outcome of that review was that on 15 March 2022 a decision was made affirming the delegate’s refusal of the nomination.

9. Consequently, and without a valid nomination in place, the requirements of cl 482.212(1) are not met.

10. As the primary review applicant does not meet cl.482.212(1), it therefore follows that the second and third named applicants are unable to meet the requirements for the grant of their visas, as they are unable to meet cl.482.312 of Schedule 2 to the Migration Regulations.

11. As one of the essential requirements for each party’s visa is not met, the decision under review must be affirmed.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants, Mr Jem Jost Jacinto, Ms Yvette Kristine Jacinto and Mr Luca Jost Jacinto, Temporary Skill Shortage (Class GK) visas.

    Angela Julian-Armitage
    Member