Malam (Migration)

[2022] AATA 3568

Malam (Migration) [2022] AATA 3568 (1 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Hemang Kanaksinh Malam

Mrs Bhavika Hemang Malam

REPRESENTATIVE:  Mrs Christine Moh-Bridgland (MARN: 0429283)

CASE NUMBER:  1912773

HOME AFFAIRS REFERENCE(S):          BCC2019/1616152

MEMBER:Mary Sheargold

DATE:1 September 2022

PLACE OF DECISION:  Melbourne

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 01 September 2022 at 11:33am

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Short-term stream – Customer Service Manager – applicants intend genuinely to stay in Australia temporarily –nomination identified in the visa application is approved – decision under review remitted 

LEGISLATION
Migration Act 1958, ss 65, 359
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 8 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 Customer Service Manager, ANZSCO 149212.

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 because the nomination application made by Arise Solar Pty Ltd for the position of Customer Service Manager was not approved.

4. The first named applicant appeared before the Tribunal by MS Teams video link on 2 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the first named applicant’s employer, Mr Anand Pandat.

5. The applicants were 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

7. The issue in this case is whether the first named applicant meets the requirements of cl.482.212(1).

   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.

9. The first named applicant’s employer, Arise Solar Pty Ltd, had its nomination for approval of the position of Customer Service Manager made in respect of the first named applicant refused by the Department.  The nominator sought review of the refusal decision, and on 1 September 2022, the Tribunal set aside the Department’s decision and substituted a decision to approve Arise Solar Pty Ltd’s nomination.

10. Accordingly, based on the evidence before it (including the Departmental file), the Tribunal is satisfied that:

    a.the nomination identified in the visa application is approved; and

    b.it was made by Arise Solar Pty Ltd, which is an approved standard business sponsor until 27 February 2024; and

    c.the nomination has not ceased.

11. Therefore, the Tribunal finds that the requirements of cl 482.212(1) are met.

    Genuine short term applicant

12. Given the reasons outlined for the delegate’s decision to refuse to approve the nomination application linked to this visa application, during the hearing, the Tribunal discussed with the first named applicant his plans for his family’s future and whether their intent was to remain in Australia on a short-term basis only.  While the Tribunal is not obliged to nor required to make findings of fact under this clause, it would be expedient to set out a summary of that discussion. 

13. Clause 482.222 requires as follows:

    The applicant is a genuine applicant for entry and stay as a short term visa holder because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)       the applicant’s circumstances; and

    (ii)      the applicant’s immigration history; and

    (iii)     any other relevant matter; and

    (b)the applicant intends to comply with any conditions to which the visa is subject, having regard to:

    (i)       the applicant’s record of compliance with any condition to which a visa previously held by the applicant (if any) was subject; and

    (ii)      the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant genuinely intend to stay temporarily?

14. For the applicant to meet cl 482.222(a), the Tribunal must be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to the applicant’s circumstances and immigration history, and any other relevant matter.

15. The Tribunal noted Mr Malam’s long history of visa applications and extensive period in which he has resided in Australia.  He has held several student visas, a temporary work visa, and has applied for permanent residency.  However, at the hearing, and with the benefit of the passage of time working for his nominating sponsor, Mr Malam was able to articulate his hope to return to India after obtaining substantial experience on shore in Australia so that he may be able to take up a role managing the applicant’s call centre based in India.

16. Mr Malam described with enthusiasm his hopes to work for Mr Pandat’s business in the long term, and Mr Pandat noted that the current manager of the call centre did not intend to remain in that role in India for more than another year or so.  The Tribunal was prepared to accept Mr Malam’s and Mr Pandat’s evidence regarding the longer-term business plans for Mr Malam’s future with Arise Solar Pty Ltd.  Arise Solar Pty Ltd has an aggressive growth strategy, forecasting a large increase in its call centre operations in India, and the desire to deploy a manager with significant experience within the business to manage that call centre in the long term.

17. For these reasons, the Tribunal would be satisfied that the applicants intend genuinely to stay in Australia temporarily, and notes they would meet the requirement in cl 482.222(a).

18. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa, including in relation to the secondary applicant.

    decision

19. 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.

    Mary Sheargold
    Member