MA (Migration)

[2022] AATA 2237

MA (Migration) [2022] AATA 2237 (27 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr JIAN MA

Ms HUA JIN

Mr YUFAN MA

REPRESENTATIVE:  Ms YIN MEI WONG (MARN: 1575093)

CASE NUMBER:  1912085

HOME AFFAIRS REFERENCE(S):          BCC2019/1610647

MEMBER:Joanne Bakas

DATE:27 June 2022

PLACE OF DECISION:  Adelaide

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)(a) of Schedule 2 to the Regulations.

Statement made on 27 June 2022 at 1:09pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Sales and Marketing Manager – 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 6 May 2019 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 1 April 2019. 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 Sales and Marketing Manager (ANZSCO 131112).

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 prospective sponsoring employer, Blue Lake Dairy Group Pty Ltd (Blue Lake), did not have an approved nomination in place for them (482.212(1)).

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

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether there is an approved nomination of the position.

   Requirement for an approved nomination

8. 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.

   482.212
   (1) Each of the following applies:
   (a) the nomination identified in the application has been approved under section 140GB of
   the Act;
   (b) the person who made the nomination was an approved sponsor at the time the
   nomination was approved;
   (c) the approval of the nomination has not ceased under regulation 2.75.

9. The first aspect (482.212(1)(a)) is in issue in this matter, in that the first named applicant was nominated by Blue Lake for a position in the occupation Marketing Manager (ANZSCO 131112). The Department refused the associated nomination and Blue Lake applied for a review of that decision.

10. On 24 June 2022 the Tribunal decided to set aside the Department’s decision and substituted a decision approving the nomination.

11. The Delegate referred to cl 482.212(1) not being met but there is no evidence before the Tribunal regarding the applicant not meeting all the requirements of 482.212(1). Only the nomination not being approved, was referred to.

12. In any event, as the Tribunal set aside the Department’s decision and substituted a decision approving the nomination, the requirements of cl 482.212(1)(a) are met.

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

14. As the Tribunal has found that the applicant satisfies cl. 481.212(1)(a), it is appropriate that the secondary applicant’s application is also reconsidered by the Department by reference to the outcome of the primary applicant’s application.

    DECISION

15. 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)(a) of Schedule 2 to the Regulations.

    Joanne Bakas
    Member