Micozzi (Migration)

[2022] AATA 2948

Micozzi (Migration) [2022] AATA 2948 (12 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gianluca Micozzi

REPRESENTATIVE:  Mr Fabio Nocilla (MARN: 1801443)

CASE NUMBER:  1903466

HOME AFFAIRS REFERENCE(S):          BCC2018/5238002

MEMBER:Alan McMurran

DATE:12 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.212(1) of Schedule 2 to the Regulations;

Statement made on 12 July 2022 at 6:37pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Provisional) (Class GK) visa – Subclass 482 - Temporary Skill Shortage – Medium-term stream – occupation of Carpenter – nomination approved upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 140
Migration Regulations 1994, Schedule 2, cl 482.212; r 2.75

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 February 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant, Gianluca Micozzi, is a 42-year-old citizen of Italy (“the nominee”), who has been nominated by the sponsor, One Stop Hire Pty Ltd. His visa application was refused by the Department on 8 February 2019 for want of an approved nomination[1].

   [1] Related nomination case 1902095

3. The applicant applied for the visa on 23 November 2018. 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Carpenter (ANZSCO 331212).

4. 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 by the sponsor had been refused

5. The applicant appeared before the Tribunal on 12 July 2022 in a combined hearing with the review of the refusal of the nomination. The applicant appeared in person, and the sponsor appeared by its authorised officer, Michael Bek, (“the director”), together with the nominee, to give evidence and present arguments. The Tribunal received oral evidence from the director and the nominee. The hearing was conducted virtually by video and in accordance with the Tribunal’s current practice directions. Both parties appearing indicated they were ready to proceed and did not require an adjournment or further time to make submissions.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant is the subject of an approved nomination.

   Requirement for an approved nomination

9. 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 which approval has not ceased.

10. On 12 July 2022, following a hearing, the Tribunal decided to set aside the decision not to approve the nomination and substituted a decision that the nomination is approved.

11. The Tribunal finds therefore that the nomination identified in the application  has been approved  under s. 140GB of the Act.

12. The Tribunal further finds on the available information that the person who made the nomination was an approved work sponsor at the time the nomination was approved, and the approval of the nomination has not ceased under regulation 2.75.

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

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

    decision

15. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.212(1) of Schedule 2 to the Regulations;

    Alan McMurran
    Member