Murakami (Migration)

[2024] AATA 525

Murakami (Migration) [2024] AATA 525 (1 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yumiko Murakami

REPRESENTATIVE:  Mr Ryan Curtis Griffiths (MARN: 0741735)

CASE NUMBER:  2102669

HOME AFFAIRS REFERENCE(S):          BCC2020/1427467

MEMBER:Amanda Mendes Da Costa

DATE:1 March 2024

PLACE OF DECISION:  Melbourne

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 1 March 2024 at 10.13am

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 65, 360
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 22 February 2021 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 applicant applied for the visa on 24 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 applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Massage Therapist (ANZSCO 411611).

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 she was not the subject of an approved nomination.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

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

6. In making its decision the Tribunal has relied on information in both the Departmental and Tribunal files.

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 meets the requirements of cl 482.212(1) of Schedule 2 to the Regulations.

   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 has not ceased.

10. The Tribunal notes that MICHAEL RYAN O’CONNOR (the nominator) made a nomination application in respect of the applicant for the position of Massage therapist.  This application was refused by a delegate of the Minister.  The nominator subsequently lodged an application with this Tribunal for review of the delegate’s decision.  On 29 February 2024 the Tribunal set aside the delegate’s decision and substituted its own decision approving the nomination.

11. Based on the above information, the Tribunal is satisfied that the nomination identified in the applicant’s visa application has been approved, that it was made by a person who was an approved work sponsor at the time of approval, and it has not ceased.    

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

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 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.

    Amanda Mendes Da Costa
    Member