NAFAA (Migration)

[2022] AATA 3703

NAFAA (Migration) [2022] AATA 3703 (16 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Ahmed Muhammad Shaban NAFAA

Mrs Heba Ahmed Mohamed Fathi AHMED

Miss Amama Ahmed Mohamed Shaaban NAFFAE

Miss Rifqa Ahmed Muhammad Shaban  NAFAA

REPRESENTATIVE:  Mr Ismail Essof

CASE NUMBER:  2211143

HOME AFFAIRS REFERENCE(S):          BCC2020/1752547

MEMBER:De-Anne Kelly

DATE:16 September 2022

PLACE OF DECISION:  Brisbane

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 482.217 of Schedule 2 to the Regulations; and

Statement made on 16 September 2022 at 3:01pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Labour Agreement stream – Minister of Religion –Australian Federal Police (AFP) National Police Check provided – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.217

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 19 July 2022 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 17 June 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 Labour Agreement stream to work in the nominated occupation of Minister of Religion ANZSCO 272211.

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 482.217 of Schedule 2 to the Regulations because the applicant failed to provide a Australian Federal Police (AFP) National Police Check.

4. The applicants were represented in relation to the review.

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 applicant satisfies cl.482.217 which provides as follows.

   482.217

   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4010, 4013, 4014,

   4020 and 4021.

   Schedule 4 — Public Interest Criteria (PIC) and related provisions of the Migration Regulations state:

   4001

   Either:

   (a) the person satisfies the Minister that the person passes the character test; or

   (b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that

   the person would fail to satisfy the Minister that the person passes the character test; or

   (c) the Minister has decided not to refuse to grant a visa to the person despite reasonably

   suspecting that the person does not pass the character test; or

   (d) the Minister has decided not to refuse to grant a visa to the person despite not being

   satisfied that the person passes the character test.

7. On July 2022 the applicants submitted AFP National Police Certificate for the adult primary applicant and adult secondary applicant being NAFAA, Ahmed Muhammad Shaban and AHMED, Heba Ahmed Mohamed Fathi with the result “no disclosable outcomes”.

8. For these reasons cl 482.217 is met.

9. One of these secondary criteria is specified in clause 482.312 of Schedule 2 of the Migration

   Regulations. Clause 482.312 requires that the applicant is a member of the family unit of a
   person (the primary applicant) who, having satisfied the primary criteria, is the holder of a
   Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage)

   visa. Since the Tribunal has found that the primary applicant satisfies cl 482.312 they may satisfy the requirements for the grant of a Subclass 482 visa and as a result the secondary applicants (the minor children are under the age if 14 years and are not required to provide police clearances) may satisfy cl 482.312 and it is appropriate to remit the secondary applications to the Department for consideration.

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

    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 482.217 of Schedule 2 to the Regulations; and

    De-Anne Kelly
    Member