Kearney (Migration)

[2022] AATA 1947

Kearney (Migration) [2022] AATA 1947 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Gary Kearney

Ms Megan Kathleen Conlan

CASE NUMBER:  1929615

HOME AFFAIRS REFERENCE(S):          BCC2019/4329216

MEMBER:Amanda Mendes Da Costa

DATE:15 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications 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) of Schedule 2 to the Regulations.

The Tribunal considers that the application of the second named applicant should be reconsidered on the basis that she is a member of the family unit of a person who has met the primary criteria for the grant of a Temporary Skill Shortage (Class GK) visa.

Statement made on 15 June 2022 at 8.28am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – carpenter – subject of approved position nomination – refusal of related nomination application set aside on review – member of family unit – decision made without hearing held – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

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 18 October 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 30 August 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 Medium-term stream to work in the nominated occupation of Carpenter.

3. The delegate in this case refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because the first named applicant (the applicant) was not the subject of an approved nomination.

4. On the basis of the material in both the Department’s and Tribunal’s files, and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour.  It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant is the subject of an approved nomination.

   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 Tribunal notes that Ross Services Pty Ltd (the nominator) made a nomination application in respect of the position of Carpenter for the applicant.  However, a delegate of the Minister made a decided not to approve the nomination.  The nominator subsequently lodged an application for review of the decision with this Tribunal.  On 14 June 2022 the Tribunal set aside the delegate’s decision and substituted its own decision to approve the nomination application for the applicant.

9. Accordingly, the Tribunal is satisfied that the nomination identified in the visa application is approved, was made by a person who was an approved sponsor at the time of approval and has not ceased.   

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

11. Given the above findings, the Tribunal considers that the application of the second named applicant should be reconsidered on the basis she is a member of the family unit of a person who has met the primary criteria for the grant of the visa.

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

    DECISION

13. The Tribunal remits the applications 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) of Schedule 2 to the Regulations.

14. The Tribunal consider that the application of the second named applicant should be reconsidered on the basis she is a member of the family unit of a person who has met the primary criteria for the grant of a Temporary Skill Shortage (Class GK) visa.

    Amanda Mendes Da Costa
    Member