Keay (Migration)

[2023] AATA 3224

Keay (Migration) [2023] AATA 3224 (15 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Christopher

Lee Keay

Master Christopher Malcom Simon Keay

Mrs Rebbecca Georgina Keay

CASE NUMBER:  2206465

HOME AFFAIRS REFERENCE(S):          BCC2019/1945207

MEMBER:P. Maishman

DATE:15 August 2023

PLACE OF DECISION:  Perth

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 of Schedule 2 to the Regulations.

Statement made on 15 August 2023 at 4:19pm

CATCHWORDS  
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Federal Circuit Court remittal – Medium-term stream – Bricklayer – subject of an approved nomination – genuine position and intention to perform occupation – skills, qualifications and employment background – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 3 June 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 16 April 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 Bricklayer(ANZSCO code 331111).

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 of Schedule 2 to the Regulations because there was not an approved nomination.

4. The application was previously heard and the decision affirmed by the Tribunal differently constituted (AAT No. 1915677). On 1 April 2023 the Federal Circuit Court remitted the Tribunal’s decision to be determined according to law.

5. The first-named applicant appeared before the Tribunal on 15 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator, Mr Christopher Keay.

6. The applicants were represented by the nominator 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 there is an approved nomination in relation to this application.

   Requirement for an approved nomination

9. 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.

10. The nominator, C Keay and D Keay, is a standard business sponsor as evidenced by a copy of the Department’s notification of its approval as a standard business sponsor from 23 April 2019 effective until 23 April 2024.

11. On 15 August 2023 the Tribunal approved the nomination identified in the visa application (AAT Case Number 2206459).

12. The Tribunal finds the nomination identified in the visa application is approved and the nominator was an approved work sponsor. The Tribunal satisfy the nomination has not ceased.

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

    Genuine position and intention to perform occupation

14. Clause 482.212(2) requires that the applicant’s intention to perform the nominated occupation is genuine and the position associated with the nominated occupation is genuine.

15. The applicant is a qualified bricklayer (ANZSCO 331111) and has worked for the nominator since 2019.

16. The Tribunal is satisfied the applicant intends to perform the nominated occupation and the position associated with the nominated occupation is genuine.

17. For these reasons the requirements of cl 482.212(2) are met.

    Applicant’s skills, qualifications and employment background

18. Clause 482.212(3) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl 482.212(4), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.

19. The tribunal is satisfied the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. The Tribunal does not consider it necessary for the applicant to demonstrate the skills necessary to perform the tasks of the nominated occupation given the amount of time the applicant has worked in that occupation.

20. For these reasons the applicant meets the requirements of cl 482.212(3) and cl 482.212(4).

21. The Tribunal finds that as the second and third-named applicants applied for the visa on the basis of being a member of the family unit of the applicant, their outcome will be determined by reference to the outcome of the first-named applicants remittal to the Department for reconsideration.

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

    DECISION

23. 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 of Schedule 2 to the Regulations.

    P. Maishman
    Member