Muthukumarana (Migration)

[2024] AATA 1437

Muthukumarana (Migration) [2024] AATA 1437 (22 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Palavinnage

Senani Muthukumarana

Mr Chamila Awantha Jayasuriya
Miss

Rainie Hershal Jayasuriya

REPRESENTATIVE:  Mrs Maryanne Issa (MARN: 1577048)

CASE NUMBER:  2116045

HOME AFFAIRS REFERENCE(S):          BCC2021/1638276

MEMBER:Alison Mercer

DATE:22 May 2024

PLACE OF DECISION:  Melbourne

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.

Statement made on 22 May 2024 at 5:50pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Accountant (General) – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 October 2021 to refuse to grant the applicants Temporary Skill Shortage (Class GK) subclass 482 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 24 August 2021. 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 Medium-term stream to work in the nominated occupation of Accountant (General).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations, which required that she was the subject of an approved nomination by her Australian employer. The delegate found that the Department had refused to approve the nomination of the applicant by her employer, MPC World Group Pty Ltd.

4. The applicant appeared before the Tribunal on 10 May 2024 to give evidence and present arguments by videoconference.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing by videoconference.

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

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

   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. It is not disputed that at the time of the primary decision, the applicant was not the subject of an approved nomination by her Australian employer, MPC Group Pty Ltd. However, following the refusal of its nomination of the applicant, MPC Group Pty Ltd sought review of that decision with the Tribunal. On 22 May 2024, the Tribunal set aside the Department’s decision and substituted a decision to approve MPC Group Pty Ltd’s nomination of the applicant. The Tribunal is satisfied that MPC Group Pty Ltd is an approved work sponsor and was one at the time of the approval of the nomination by the Tribunal, and that the nomination approval has not ceased.

9. For these reasons, the Tribunal finds that the requirements of cl 482.212(1) are met. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa in relation to the applicant.

10. As the second and third 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.

    DECISION

11. 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.

    Alison Mercer
    Member