Joomsuntia (Migration)

[2024] AATA 1163

Joomsuntia (Migration) [2024] AATA 1163 (6 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nuntip Joomsuntia

REPRESENTATIVE:  Mr Satish Madaan (MARN: 0744292)

CASE NUMBER:  2111675

HOME AFFAIRS REFERENCE(S):          BCC2021/1319733

MEMBER:George Hallwood

DATE:6 May 2024

PLACE OF DECISION:  Adelaide

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 06 May 2024 at 11:56am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – chef – related nomination application refused – combined hearing of nomination and visa reviews – nomination refusal set aside – decision under review remitted

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

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 26 August 2021 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 28 June 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 chef.

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 nomination related to this application had not been approved.

4. The applicant appeared before the Tribunal on 1 May 2024 to give evidence and present arguments. This is a combined hearing with the related nominator and the Tribunal also received oral evidence from Mr Damian Byrdy appearing on behalf of the nominator, D.M.V Byrdy & T.R Woolhouse - case number 2110455.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements of clause 482.212(1) of the Regulations.

   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 has not ceased.

9. On 6 May 2024 the nomination by D.M.V Byrdy & T.R Woolhouse related to this matter and identified in the visa application was approved. Departmental records demonstrate that the nominator is an approved sponsor until 21 April 2026 and the nomination has not ceased.

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

    OVERALL CONCLUSION

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

    DECISION

12. 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.

    George Hallwood
    Member