Matanguihan (Migration)

[2024] AATA 1609

Matanguihan (Migration) [2024] AATA 1609 (2 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rodel

Magnaye Matanguihan

Mrs Marianne Gagui Matanguihan
Master

John Alwyn Gagui Matanguihan

Ms Jeanine Alyanah Gagui Matanguihan

REPRESENTATIVE:  Ms Bernadette Burns (MARN: 0744805)

CASE NUMBER:  2103381

HOME AFFAIRS REFERENCE(S):          BCC2020/2866908

MEMBER:Susan Hoffman

DATE:2 May 2024

PLACE OF DECISION:  Perth

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 02 May 2024 at 1:22pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Short-term stream – Café or Restaurant 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, 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 9 March 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 22 December 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).

3. 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.

4. 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 Café or Restaurant Manager (ANZSCO 141111).

5. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.12 of Schedule 2 to the Regulations because the sponsoring employer, CVN Pty Ltd, did not have an approved nomination in place for the applicant.

6. The Tribunal did not invite the applicants to a hearing as it is able to make a favourable decision on the papers

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 there is an approved nomination in place in relation to the applicant in this matter.

   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 nomination application associated with this visa application was lodged by CVN Pty Ltd. The person who will employ the applicant is Mr Carlo Nucup, the owner of CVN Pty Ltd, which operates a Jamaica Blue Café located in Karratha in regional Western Australia. Mr Nucup lodged the nomination application on behalf of CVN Pty Ltd.

12. The nomination application was refused by a delegate of the Minister on 4 February 2021. That decision was reviewed by this Tribunal. On 2 May 2024 at 12:44 pm, the Tribunal decided to set aside the refusal decision and replace it with a decision approving the nomination.

13. The Tribunal is satisfied the nomination made in relation to Mr Matanguihan has not been withdrawn because of the submissions made by Mr Nucup during the review of the decision to refuse the nomination application. Those submissions, in particular Mr Nucup’s evidence given at the hearing for that review, made clear that Mr Matanguihan is highly-valued employee.

14. Also based on evidence before the Tribunal for the review of the decision to refuse the nomination application, the Tribunal is satisfied that CVN Pty Ltd was an approved work sponsor at the time the nomination application was made and is currently a standard business sponsor; the expiry date 15 March 2029.

15. For these reasons the requirements of cl 482.212(1) are met.

16. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa in relation to all the applicants.

    DECISION

17. 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

    Susan Hoffman
    Member