Lin (Migration)

[2025] ARTA 141

Lin (Migration) [2025] ARTA 141 (14 February 2025)

Decision and  
Reasons for Decision

Applicants:Ms Shunying Lin
Mr Chongshui Zhang
Mr Renhao Zhang

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2204363

Tribunal:General Member P Maishman

Place:Perth

Date:  14 February 2025

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.

The applications for the second and third named applicants are remitted for reconsideration in accordance with this order.

Statement made on 14 February 2025 at 10:37am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Short-term stream – Customer Service Manager – Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved – approved nomination – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, Schedule 2, cl 482.212

STATEMENT OF 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 10 March 2022 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 25 November 2021. 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.

3. 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 Customer Service Manager (ANZSCO 149212).

4. 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 the nomination identified in the visa application had not been approved under s 140GB of the Act.

5. The primary applicant appeared before the Tribunal on 30 January 2025 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Paul Figliomeni, Managing Director and Mr Vikas Vaghela, a special projects manager from the sponsoring company.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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 meets the requirements of clause 482.212(1) of Schedule 2 to the Regulations.

   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, Unique Metal Works Pty Ltd, applied to the Department for approval of a nomination in relation to the occupation of Customer Service Manager (ANZSCO 149212). That nomination was refused by the Department on 7 February 2022 and consequently the applicants visa applications were refused.

12. Unique Metal Works Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.2202589). On 5 February 2024, the Tribunal set aside the Department’s decision and remitted it to the Department for reconsideration. On 14 February 2025 the applicant gave the Tribunal notification from the Department dated 12 February 2025 approving the nomination by Unique Metal Works Pty Ltd. Accordingly the Tribunal finds the nomination identified in the visa application is approved and 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 Unique Metal Works Pty Ltd was approved as a standard business sponsor for the period 15 July 2022 effective until 15 July 2027.

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 and third named applicants applied for their visas on the basis of their being members of the family unit of the first named applicant. Accordingly, their applications will be determined by reference to the outcome of the first named applicant's application on remittal to the Department for reconsideration.

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 of Schedule 2 to the Regulations.

    The applications for the second and third named applicants are remitted for reconsideration in accordance with this order.

    Date(s) of hearing:   30 January 2025

    Representative for the Applicant:             Mr Feng Chen (MARN: 1577771)