Muntean-Berzan (Migration)

Muntean-Berzan (Migration) [2023] AATA 1893 (23 May 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Iulia-Maria Muntean-Berzan
Mr Florin Muntean-Berzan
Master Bogdan-Alexandru Muntean-Berzan
REPRESENTATIVE:  Ms Suzanne Weel
CASE NUMBER:  1929042
HOME AFFAIRS REFERENCE(S):          BCC2019/706602
MEMBER:Noelle Hossen
DATE OF DECISION:  23 May 2023
DATE CORRIGENDUM
SIGNED:30 June 2023
PLACE OF DECISION:  Perth
AMENDMENT:  The following corrections are made to the decision:

The references to visa subclass 492 on the cover page and in paragraphs 25 and 27 should be changed visa subclass 482
The sentence in paragraph 7 which reads “the Delegate concluded that the position associated with the nominated position to be genuine, and so the nominator did not satisfy reg 2.72 (10) (a)” should be changed to read “the Delegate concluded that the position associated with the nominated position to not be genuine, and so the nominator did not satisfy reg 2.72 (10) (a)”
Noelle Hossen
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Iulia-Maria
Muntean-Berzan

Mr Florin Muntean-Berzan
Master Bogdan-Alexandru
Muntean-Berzan
REPRESENTATIVE:  Ms Suzanne Weel
CASE NUMBER:  1929042
HOME AFFAIRS REFERENCE(S):          BCC2019/706602
MEMBER:Noelle Hossen
DATE:23 May 2023
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 of Schedule 2 to the Regulations; and
·The second named and third named applicant meet the criteria of a Subclass 492.312 as the primary applicant meets the criteria for a Subclass 482 Visa.

Statement made on 23 May 2023 at 2:47pm
CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – contract administrator – genuine position – tasks of position commensurate with occupation – applicant’s work in nominated position on bridging and previous substantive visa – genuine short-term stay and intention to comply with conditions – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.72(10)(a), Schedule 2, cls 482.212(1), 482.222, 482.312, 482.611, 482.612, 482.613, Schedule 8, conditions 8501, 8607
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 October 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).
The applicants applied for the visas on 17 July 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 Contract Administrator.
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 of Schedule 2 to the Regulations because the delegate made a finding that having considered the relevant evidence, most of the tasks of the position is not commensurate with the occupation of a Contract Administrator.
The applicants appeared before the Tribunal on the 2 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Saurar Singh.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is that the Delegate concluded that the position associated with the nominated position to be genuine, and so the nominator did not satisfy reg 2.72 (10) (a).
The delegate found that as the nominator did not satisfy reg 2.72(10)(a) so the applicant did not meet the requirements of reg 2.72 (10).
On the 2 May 2023 the Tribunal found that the position associated with the nominated occupation to be genuine, and that the nominator did satisfy Reg 2.72(10) (a).
Requirement for an approved nomination
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.
The Tribunal found that the nomination identified in the visa application is approved and that the first named applicant has worked with the approved work sponsor at the time of the approval and has not ceased her employment.
For these reasons the requirements of cl 482.212(1) are met.
Genuine short-term applicant
Clause 482.222 requires as follows:
The applicant is a genuine applicant for entry and stay as a short term visa holder because:
(a)the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)       the applicant’s circumstances; and
(ii)      the applicant’s immigration history; and
(iii)     any other relevant matter; and
(b)the applicant intends to comply with any conditions to which the visa is subject, having regard to:
(i)       the applicant’s record of compliance with any condition to which a visa previously held by the applicant (if any) was subject; and
(ii)      the applicant’s stated intention to comply with any conditions to which the visa may be subject; and
(c)of any other relevant matter.
Does the applicant genuinely intend to stay temporarily?
For the applicant to meet cl 482.222(a), the Tribunal must be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to the applicant’s circumstances and immigration history, and any other relevant matter.
The first named applicant is aware that the visa is a short-term stream Visa. There is no evidence that the first named applicant has not complied with the migration laws of Australia or any other country.
For these reasons, the Tribunal is satisfied that the first named applicant intends genuinely to stay in Australia temporarily. Therefore, the applicant meets cl 482.222(a).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl 482.222(b), the Tribunal must be satisfied that the first named applicant intends to comply with any conditions to which the visa is subject, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have condition 8607 imposed: cl 482.611. Condition 8607 essentially requires the visa holder to work only in their nominated occupation and for certain businesses, meet mandatory licensing requirements, and to commence work within 90 days and not cease employment for more than 60 days. Condition 8501 (health insurance) must also be imposed, and condition 8303 (no involvement in disruptive activities/ threatening violence towards Australian community) may be imposed: cl 482.612 and cl 482.613.
The first named applicant has worked for the nominated business as the holder of a subclass 457 visa in the position of Contract Administrator for a period of 2 years and otherwise for approximately 4 years as the holder of a Bridging visa.
The first named applicant has always complied with the conditions of the visa. There is no adverse information before the Tribunal in relation to the applicant’s immigration history or stay in Australia.
For these reasons, the Tribunal is satisfied that the first named applicant intends to comply with the conditions to which the visa is subject. Therefore, the first named applicant meets cl 482.222(b).
Is the applicant a genuine applicant for entry and stay as a short term visa holder because of any other relevant matter?
For the first named applicant to meet cl 482.222(c), the Tribunal must be satisfied that the first named applicant is a genuine applicant for entry and stay as a short-term visa holder because of any other relevant matter (in addition to the requirements in cl 482.222(a) and (b)).
There is no evidence before the Tribunal that the first named applicant is not a genuine applicant for entry and stay as a short-term visa holder because of any other relevant matter.
Conclusion on cl 482.222
Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a short-term visa holder as required by cl 482.222.
The second and third named applicants’(as members of the family unit of the first named applicant) meet the criteria of Subclass 492.312, as the primary applicant meets the criteria for a Subclass 482 Visa.
Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.
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 of Schedule 2 to the Regulations; and
·The second named and third named applicants meet the criteria for a Subclass 492.312 as the primary applicant meets the criteria for Subclass 482 Visa.
Noelle Hossen
Member

[2023] AATA 1893

23 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Intention