Mesdary (Migration)

[2024] AATA 1207

Mesdary (Migration) [2024] AATA 1207 (14 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ehab

Youssef Rashed Mesdary

Mrs Marina Nessim Gad Aziz

Sawires

Master Alvin Ehab Youssef Rashed Mesdary

Master Freddy Mesdary

CASE NUMBER:  2107112

HOME AFFAIRS REFERENCE(S):          BCC2020/1322065

MEMBER:P. Maishman

DATE:14 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 14 May 2024 at 4:15pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Cook – nomination approved upon review – 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 10 May 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 6 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 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 Cook (ANZSCO 351411).

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 nomination relevant to the visa application was not approved. The delegate also refused to grant the second, third and fourth named applicants (the applicant’s wife and children) subclass 482 visas as they did not satisfy the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 482 visa, and there was no evidence that they met the primary visa criteria in their own right.

4. The applicants appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator’s representative, Mr Osama Mesdary.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether 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.

   Requirement for an approved nomination

7. 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.

8. The applicant gave the Tribunal a copy of the delegates decision with his application for review. The delegate refused the application because the the nomination of the applicant’s prospective employer, Osama  Mesdary ATF for Mesdary Family Trust, was not approved.

9. On 14 May 2024 the Tribunal set aside the Department’s decision to refuse the nomination of Osama  Mesdary ATF for Mesdary Family Trust and substituted a decision to approve the nomination (AAT No. 2102904). The Tribunal is satisfied the nominator is a standard business sponsorship based on the approval notification dated 7 December 2021 confirming its sponsorship was effective until 7 December 2026.     

10. Accordingly, the Tribunal finds 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. For these reasons, the Tribunal finds that the requirements of cl 482.212(1) are met by the applicant.

12. As the second, third, fourth and fifth named applicants applied for the visas on the basis of being members of the family unit of the applicant, their applications will also be remitted to the Department for reconsideration upon its reconsideration of the applicant’s application.

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

    DECISION

14. 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.

    P. Maishman
    Member