Matavola (Migration)

[2024] AATA 1660

Matavola (Migration) [2024] AATA 1660 (28 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ralusiana

Ralikuvutia Matavola

Ms Vitalina Radiniqele Matavola
Mr

Iokimi Joeli Biu Matavola

Ms Christiana Salusalu Matavola

CASE NUMBER:  2113257

HOME AFFAIRS REFERENCE(S):          BCC2020/1413461

MEMBER:Andrew McLean Williams

DATE:28 May 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the Applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 28 May 2024 at 11:35am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – refrigeration and air conditioning technician – secondary applicants wife and children – primary applicant husband/father resigned employment before position nomination approved – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, 482.312

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 10 September 2021, refusing 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 who are family members and thus secondary visa applicants applied for the visas on 22 April 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 secondary applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant was seeking the visa in the medium-term stream to work in the nominated occupation of Refrigeration and Air Conditioning Technician employed by Peak Air Conditioning Refrigeration & Electrical in North Queensland (‘Peak Air’).

3. The Delegate in this case refused to grant the above-named visa applicants the requested visa on the basis that, as family members of the primary visa applicant, they did not satisfy the requirements of cl 482.312 of Schedule 2 to the Regulations because they were not family members of a person who was the holder of a Subclass 482 visa.

4. The primary visa applicant was their husband and father Mr Gabirieli Waqavanua, yet Mr Gabirieli Waqavanua had resigned his employment with his nominating sponsor Peak Air Conditioning and Electrical on 19 February 2021, which was a date before the position nominated for him by his sponsoring employer Peak Air had been approved by the Minister.

5. The Applicants appeared before the Tribunal in Brisbane on 28 May 2024 to give evidence and present arguments.

6. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the named Applicants are able to satisfy the requirements of clause 482.312, in Schedule 2 of the Regulations.

   Requirement for an approved nomination

8. Clause 482.212(1) requires that the nomination identified in the visa application in relation to the primary applicant is approved; was made by a person who was an approved work sponsor at the time of approval; and has not ceased.  Yet, Mr Gabirieli Waqavanua had resigned his employment with Peak Air on 19 February 2021, which was a date prior to the nominated position having been approved by the Minister.  In these circumstances the named Applicants are unable to be categorised as family members of a person who is the holder of a Subclass 482 visa.

9. For these reasons the requirements of cl 482.312 are not met, and the decision under review must be affirmed.

   DECISION

10. The Tribunal affirms the decision not to grant the Applicants Temporary Skill Shortage (Class GK) visas.

    Andrew McLean Williams
    Member