Le Pochat (Migration)

[2022] AATA 1188

Le Pochat (Migration) [2022] AATA 1188 (23 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Laurent Yoann Le Pochat

REPRESENTATIVE:  Mr Laurent Corgnet (MARN: 1467849)

CASE NUMBER:  1831884

HOME AFFAIRS REFERENCE(S):          BCC2018/3242017

MEMBER:Angela Julian-Armitage

DATE:23 February 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.212(1) of Schedule 2 to the Regulations

Statement made on 23 February 2022 at 4:46pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Cabinetmaker – 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 17 October 2018 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Cabinetmaker (ANZSCO 394111).

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(1) of Schedule 2 to the Regulations because their prospective sponsoring employer, Mullumjoinery Wood & Metal Pty Ltd, did not have an approved nomination in place for the applicant.

4. The applicant appeared before the Tribunal on 16 December 2021 to give evidence and present arguments. The applicant was represented in relation to the review by Mr Laurent Corgnet, who attended the Tribunal hearing.

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 nomination identified in the visa application is approved.

   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 approved the nomination on 23 February 2022.

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

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

    DECISION

11. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.212(1) of Schedule 2 to the Regulations.

    Angela Julian-Armitage
    Member