McQuaid (Migration)

[2023] AATA 2595

McQuaid (Migration) [2023] AATA 2595 (4 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Justin

Peter McQuaid

Ms Paula Molloy

REPRESENTATIVE:  Ms Rowena Hallam (MARN: 0429550)

CASE NUMBER:  1933734

HOME AFFAIRS REFERENCE(S):          BCC2019/3987945

MEMBER:George Hallwood

DATE:4 August 2023

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) of Schedule 2 to the Regulations.

Statement made on 04 August 2023 at 12:35pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – transport company manager – subject of approved position nomination – related nomination application refused – combined hearing of nomination and visa reviews – nomination refusal set aside – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

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 November 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 12 August 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 Transport Company Manager - 149413.

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 applicant was not the subject of an approved nomination.

4. The applicants appeared before the Tribunal on 25 May 2023 to give evidence and present arguments. As this is a combined hearing with that of the related nominator, the Tribunal also received oral evidence from Mr Eoin O’Neill on behalf of Wagyu Pty Ltd.

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 set out in 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. On 4 August 2023 the Tribunal approved the related nomination of Wagyu Pty Ltd, an approved work sponsor at the time of approval, which identified this visa application and this nomination has not ceased.

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

    OVERALL CONCLUSION

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

12. As the second named applicant was refused on the basis that they were a member of the family unit of a primary visa applicant whose nomination was not approved, the Tribunal recommends that Ms Malloy’s application be reconsidered at the same time as Mr McQuaid’s.

    DECISION

13. 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.

    George Hallwood
    Member