Kandel (Migration)

[2023] AATA 1824

Kandel (Migration) [2023] AATA 1824 (16 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Raju

Kandel

Mrs Anita Kharel Kandel
Master

Aarogya Kandel

Mr Aaradhya Kandel

REPRESENTATIVE:  Mr Komal Khatiwada (MARN: 0853554)

CASE NUMBER:  1935654

HOME AFFAIRS REFERENCE(S):          BCC2019/5271906

MEMBER:C. Packer

DATE:16 June 2023

PLACE OF DECISION:  Melbourne

DECISION: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(1)(a) of Schedule 2 to the Regulations

Statement made on 16 June 2023 at 3.10pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, s 65
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 6 December 2019 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 21 October 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 primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of cook.

3. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

5. 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.

6. On 16 June 2023 in case number 1933172 the Tribunal set aside the decision not to approve the nomination by Zeera Tadka Pty Ltd and substituted a decision that the nomination is approved. For these reasons the requirements of cl 482.212(1)(a) are met.

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

   DECISION

8. 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(1)(a) of Schedule 2 to the Regulations

   C. Packer
   Member