Jang (Migration)

[2022] AATA 1630

Jang (Migration) [2022] AATA 1630 (18 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jungin Jang

REPRESENTATIVE:  Mr Park Sang Bin (MARN: 1278739)

CASE NUMBER:  1923566

HOME AFFAIRS REFERENCE(S):          BCC2019/696123

MEMBER:Wan Shum

DATE:18 March 2022

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(1) of Schedule 2 to the Regulations.

Statement made on 18 March 2022 at 3:09pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Cook –applicant has an approved standard business sponsor –approved nomination – decision under review remitted 

LEGISLATION
Migration Act 1958, ss 65, 140GB
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 5 August 2019 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 19 June 2019. 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 Cook which requires approval of a nomination made by an approved sponsor.

3. The approved sponsor in the present case is Restaurant Gangnam Pty Ltd who sought approval for the nomination of the occupation of Cook and identified the applicant for the position. The nomination was not approved because the delegate was of the view that the position was in a ‘limited service restaurant’ which meant that the occupation was excluded.

4. As a consequence, on 19 June 2019, the delegate in this case refused to grant the visas on the basis that cl 482.212(1) was not met.

5. Both Restaurant Gangnam Pty Ltd and the applicant sought review of these decisions and were represented in relation to the review by the same registered migration agent.

6. On 18 March 2022, the Tribunal approved the application made by Restaurant Gangnam Pty Ltd for the nomination of the occupation of Cook under s 140GB of the Act. That nomination relates to the applicant. Restaurant Gangnam Pty Ltd was approved as a standard business sponsor for a five-year period commencing 12 September 2018 so is currently approved. There is thus an approved nomination in respect of the applicant made by a person who was an approved sponsor at the time the nomination was approved; and that nomination has not ceased. The requirements of cl 482.212(1) are thus met.

7. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 482 visa.

   DECISION

8. 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.

   Wan Shum
   Member