Khunsong (Migration)

[2023] AATA 2355

Khunsong (Migration) [2023] AATA 2355 (24 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Nuttiya

Khunsong

Miss Somchai Saengdaet
Mr Phollawat

Saengdaet

REPRESENTATIVE:  Mr Jiang Liu (MARN: 0428586)

CASE NUMBER:  1931283

HOME AFFAIRS REFERENCE(S):          BCC2019/4105263

MEMBER:Noelle Hossen

DATE:24 June 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; and

The Tribunal considers that the second named and third named applicants meet the secondary criteria for a Temporary Skill Shortage (Class GK) (Subclass 482) visa.

Statement made on 24 June 2023 at 4:46pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Short-term stream – Café or Restaurant Manager –approved nomination – 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 4 November 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 19 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 Short-term stream to work in the nominated occupation of Café or Restaurant Manager.

3. The delegate in this case refused to grant the visa on the basis that the first named visa applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because he did not consider that her position was genuine.

4. The applicants appeared before the Tribunal on the 7 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Somchai Saengdaet. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

5. The applicants were represented in relation to the review but not at the hearing.

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 first named applicant meets the criteria in cl.482.212(2) of Schedule 2 to the Regulations.

   Genuine position and intention to perform occupation

8. 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.

9. Departmental files show that Sengaroun Pty Ltd made an application for approval of a nomination for a position for the first named applicant, which was refused by a delegate of the Department.

10. The Tribunal found that the nomination in the visa application should be approved and that the nomination has not ceased.

11. For these reasons the requirements of cl 482.212 are met.

12. The second and third named applicants are members of the family unit of the applicant and their applications are to be determined based on the primary applicant’s visa.

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

    DECISION

14. 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; and

    The second named and third named applicant meet the secondary criteria for a Temporary Skill Shortage (Class GK) Visa.

    Noelle Hossen
    Member