Lee (Migration)

[2022] AATA 2783

Lee (Migration) [2022] AATA 2783 (27 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Boram Lee

REPRESENTATIVE:  Mr John Kim

CASE NUMBER:  1900301

HOME AFFAIRS REFERENCE(S):          BCC2018/4771029

MEMBER:Ian Berry

DATE:27 May 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 of Schedule 2 to the Regulations.

Statement made on 27 May 2022 at 10:21am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Accountant (General) – 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 31 December 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 29 October 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-midterm stream to work in the nominated occupation of Accountant (General) ANZSCO code 221111.

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 applicant’s nomination was refused.

4. The applicant appeared before the Tribunal on 7 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the employer’s representative Mr Jung. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. 

5. The hearing of the applicant’s case was combined with the applicant’s employer nomination[1].

   [1] KS Queensland Pty Ltd case number 1836994.

6. The applicant was represented in relation to the review.

7. The Tribunal exercised its discretion to hold the hearing by video. During the COVID-19 pandemic, special circumstances exist for the video hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by video achieved this end.

8. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant has a valid nomination which has not been withdrawn as is required by regulation 482.212.

10. The applicant is currently in Australia and continues to be employed by her nominator/employer K S Queensland Pty Ltd.

11. The applicant’s last substantive Visa granted on 23 September 2016 was a VC 485 visa.  As and from 25 February 2018, the applicant held a bridging visa A.  Subsequently, from 30 October 2018, she held a Bridging Visa C and continued to do so until the grant of her most recent Bridging Visa C on 25 January 2021.  When holding a VC-485 visa, it was subject to a condition 8501.  There is no evidence before the Tribunal that she did not comply with that condition.

12. For these reasons, cl 482.212 is met.

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 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 of Schedule 2 to the Regulations.

    Ian Berry
    Member