Lacina (Migration)

[2023] AATA 3124

Lacina (Migration) [2023] AATA 3124 (20 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vojtech

Lacina

Miss Zdenka Rusinova

REPRESENTATIVE:  Mr Scott Walker (MARN: 1067594)

CASE NUMBER:  1934455

HOME AFFAIRS REFERENCE(S):          BCC2019/4555152

MEMBER:Noelle Hossen

DATE:20 September 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 20 September 2023 at 12:35pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – cabinetmaker – subject of approved position nomination – refusal of related nomination application affirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 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 11 September 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 Cabinetmaker 394111 by their sponsor LACINA WOOD ART Pty Ltd.

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 the prospective sponsoring employer LACINA WOOD ART Pty Ltd did not have an approved nomination in place for them.

4. The applicants appeared before the Tribunal on the 10 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Zdenka Rusinova.

5. The applicants were represented in relation to the review.

6. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is that the Delegate of the Department advised the applicants on the 17 October 2019 that the prospective sponsoring employer did not have an approved nomination in place for them

8. The applicants applied for a review of the Decision of the Delegate in respect of the matter and the prospective sponsoring employer also applied for a review of the Decision by the Tribunal. The Tribunal decided on the 20 September 2023 to affirm the Decision.

9. As a result of the Decision of the Tribunal dated the 20 September 2023 the applicant’s prospective sponsoring employer do not have an approved nomination in place.

   Requirement for an approved nomination

10. 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.

11. The nomination in the approved visa application is not approved and has ceased.

12. For these reasons the requirements of cl 482.212(1) are not met.

13. The second named applicant has made an application as she is a member of the first named applicant’s family unit and therefore her application is based on the first named applicant’s application.

14. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Noelle Hossen
    Member