Krishan Lal (Migration)

[2021] AATA 4949

Krishan Lal (Migration) [2021] AATA 4949 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Krishan Lal

Mrs Seema Rani

CASE NUMBER:  1833199

HOME AFFAIRS REFERENCE(S):          BCC2018/3072999

MEMBER:Namoi Dougall

DATE:7 December 2021

PLACE OF DECISION:  Sydney

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; and

Statement made on 07 December 2021 at 10:55am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Gardener – subject of an approved nomination – 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 24 October 2018 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 15 August 2018. 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 Gardener (ANZSCO 362211).

3. The delegate in this case refused to grant the visa on the basis that the first named visa applicant (the primary applicant) did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because the applicant was not subject to an approved nomination as the nomination application of his sponsoring employer, Forever Lawncare Pty Ltd (the nominating business) was not approved on 21 August 2018.

4. The primary applicant appeared before the Tribunal on 2 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the director of the nominating business, Ms Ravneet Vinaik.  

5. The applicants were represented in relation to the review by their registered migration agent.

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 primary applicant is subject to an approved nomination.

   Requirement for an approved nomination

8. 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.

9. On 10 August 2021, the nominating business lodged with the Department a nomination application in respect of the primary applicant for the nominated position of Gardener (ANZSCO 362211) which was refused on 21 August 2018. On 7 December, the Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved.

10. On the above, the Tribunal is satisfied that the criterion in cl.482.212(1) are met and the matter should be remitted for reconsideration.

11. The second named applicant applied for the visa on the basis of being a member of the family unit of the primary visa applicant who meets primary criteria. As the Tribunal is remitting the application of the primary visa applicant with a finding that the requirements of cl.427.212(1) have been met, the remaining criteria for the Subclass 482 visa will be considered for both applicants.

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

    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; and

    Namoi Dougall
    Member