Kaur (Migration)

[2025] ARTA 1625

Kaur (Migration) [2025] ARTA 1625 (28 July 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Jaswinder Kaur

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2519060

Tribunal:General Member P Emmerton

Place:Adelaide

Date:28 July 2025

Decision:The Tribunal sets aside the decision under review and remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria:

· cl 482.212 of Schedule 2 to the Regulations

Statement made on 28 July 2025 at 3:10pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Federal Court remittal – medium-term stream – general accountant – subject of approved position nomination – refusal of related nomination application set aside on review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), r 2.75, 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 14 February 2022 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 11 October 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 Accountant General, ANZSCO 221111.

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 was not approved.

4. The applicant then applied to the AAT for review.

5. The Tribunal originally found they had no jurisdiction in the matter on 13 May 2022. The matter was successfully appealed to the FCFCA, and the matter was returned to the Tribunal on 14 February 2025 for reconsideration. It was found the original NJ Decision came about as a result of an administrative error resulting from a technical system failure at the time of applying for the appeal before the AAT.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the nomination associated with this visa has been approved.

9. The Tribunal has read and carefully considered all the evidence presented to the Department and to the delegate.

10. The Tribunal has read and carefully considered all the evidence presented to it prior to this decision including the approved nomination made by the AAT dated 27 March 2024.

    Requirement for an approved nomination

11. 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.

12. At the time of approval, the nominator Wine Partners of Australia Pty Ltd was an approved Standard Business Sponsor, (SBS).

13. On 18 November 2021 the nominator, Wine Partners of Australia Pty Ltd applied to sponsor the visa applicant for a Temporary Skill Shortage Subclass 482 Visa.

14. The nominator’s application was subsequently refused.

15. Both the nominator and the visa applicant separately applied to the Administrative Appeals Tribunal, (AAT) to review the decisions.

16. On 27 March 2024 the Administrative Appeals Tribunal, (AAT) set aside the delegate’s decision and approved the nomination related to this visa.

17. The Tribunal is satisfied that each of the following applies:

    (a)  the nomination identified in the application has been approved under section 140GB of the Act;

    (b)  the person who made the nomination was an approved work sponsor at the time the nomination was approved; and

    (c)  the approval of the nomination has not ceased under regulation 2.75.

18. For these reasons the requirements of cl 482.212(1) are met as subsequently is 482.212.

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

    DECISION

20. The Tribunal sets aside the decision under review and remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, in accordance with the order that the applicant meets the following criteria:

    · cl 482.212 of Schedule 2 to the Regulations

    Representative for the Applicant:             Mr Manoj Kumar Nanda (MARN: 1568823)