Li (Migration)

[2022] AATA 3133

Li (Migration) [2022] AATA 3133 (7 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mrs Ka Yee Kathy Li

Mr Chun Kong David Fong

Miss Davina Fong

REPRESENTATIVE:  Mr Dildeep Singh (MARN: 1281067)

CASE NUMBER:  2102369

HOME AFFAIRS REFERENCE(S):          BCC2020/1509289

MEMBER:Karen McNamara

DATE:7 September 2022

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.

Statement made on 07 September 2022 at 1:21pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – hotel or motel manager – subject of approved nomination – refusal of related nomination application set aside on review – combined hearing of nomination and visa reviews – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)(a)

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 22 February 2021 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 7 May 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 primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Hotel or Motel Manager (ANZSCO 141311).

3. On 22 February 2021, the delegate refused to grant the visas on the basis that the first named applicant, Mrs Ka Yee Kathy Li (the applicant) did not satisfy the requirements of cl.482.212(1) of Schedule 2 to the Regulations, because she was not the subject of an approved nomination by an approved Standard Business Sponsor (SBS). The delegate found that the applicant’s employer, Lifestyle Grand Pty Ltd did not have an approved nomination for the applicant. Accordingly, the applicant did not meet cl.482.212(1) and therefore did not meet cl.482.212.

4. The applicants applied to the Tribunal on 26 February 2021, for review of the delegate’s decision.

5. On 24 August 2022 Mrs Ka Yee Kathy Li appeared before the Tribunal via telephone on behalf of the applicants, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Satnam Singh (the nominator) in the related matter for the nomination review application (AAT Case file 2101128). The related matters were heard concurrently in a combined hearing.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

7. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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 the present case is whether the applicant meets the requirements of clause 482.212(1).

   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 nominating employer Lifestyle Grand Pty Ltd applied to the Department for approval of a nomination in relation to the occupation of Hotel or Motel Manager (ANZSCO 141311). That nomination was refused by the Department on 22 January 2021 and consequently the applicants’ visa applications were refused.

12. Lifestyle Grand Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No. 2101128). On 7 September 2022, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination. Therefore, the applicant satisfies cl.482.212(1)(a) of Schedule 2 to the regulations.

13. The Tribunal is satisfied from the Department’s records that Lifestyle Grand Pty Ltd was approved as a standard business sponsor on 30 September 2019 to 30 September 2024.

14. Accordingly, the Tribunal is satisfied that the nominator is an approved sponsor and was at the time that the nomination was approved and that the approved nomination has not ceased.

15. As the requirements of clauses 482.212(1)(a), (b) and (c) are satisfied, accordingly the requirements in cl.482.212(1) are met as a whole.

16. The second named applicant (Mr Chun Kong David Fong) and third named applicant (Miss Davina Fong) applied on the basis of being a member of the family unit of the first named applicant (Mrs Ka Yee Kathy Li). The applications by Mr Chun Kong David Fong and Miss Davina Fong will be determined by reference to the outcome of Mrs Ka Yee Kathy Li’s application on remittal to the Department for consideration.

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

    decision

18. 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.

    Karen McNamara
    Member