Lee (Migration)

[2024] AATA 538

Lee (Migration) [2024] AATA 538 (8 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jonghyun Lee

REPRESENTATIVE:  Ms Gloria Eun (MARN: 0601849)

CASE NUMBER:  2102341

HOME AFFAIRS REFERENCE(S):          BCC2020/42033

MEMBER:Sheridan Aster

DATE:8 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets cl 482.212(1) of Schedule 2 to the Migration Regulations 1994.

Statement made on 08 March 2024 at 1:26pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Cook – nomination approved upon review – 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 5 February 2021 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 13 February 2020. 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 Short-term stream to work in the nominated occupation of cook, nominated by Jun Brothers 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(1) of Schedule 2 to the Regulations, which requires that the nomination identified in the visa application is approved.

4. The applicant appeared before the Tribunal on 1 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hyung In Yeum, Director of Jun Brothers Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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. Jun Brothers Pty Ltd applied for approval to nominate Jonghyun Lee to work in the occupation of cook on 13 February 2020. The nomination application was refused by a delegate of the Minister on 10 March 2020. The company applied to the Tribunal for a review of that decision. On 8 March 2024, the Tribunal set aside the decision not to approve the nomination and substituted it with a decision that the nomination is approved.

9. Jun Brothers Pty Ltd was approved as a standard business sponsor on 9 September 2022. The approval is valid until 9 September 2027.

10. For these reasons the requirements of cl 482.212(1) are met. 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 cl 482.212(1) of Schedule 2 to the Migration Regulations 1994.

    Sheridan Aster
    Member