Nelson (Migration)

[2024] AATA 572

Nelson (Migration) [2024] AATA 572 (15 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Michael

Andrew Nelson

Mrs Linda Maureen Nelson

REPRESENTATIVE:  Mrs Sally Webster

CASE NUMBER:  2103504

HOME AFFAIRS REFERENCE(S):          BCC2020/2314039

MEMBER:George Hallwood

DATE:15 March 2024

PLACE OF DECISION:  Adelaide

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(1) of Schedule 2 to the Regulations.

Statement made on 15 March 2024 at 4:38pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Chief Executive or Managing Director – 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 4 March 2021 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 16 September 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 Medium-term stream to work in the nominated occupation of Chief Executive or Managing Director - 111111.

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 the applicant was not the subject of an approved nomination.

4. The applicants appeared before the Tribunal on 6 March 2024 to give evidence and present arguments. This was a combined hearing with that of the sponsoring employer, Stonebridge Commercial Solutions Ltd and the Tribunal also received oral evidence from Mrs Linda Maureen Nelson in her capacity representing the sponsor.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the criteria set out in cl 482.212(1).

   Requirement for an approved nomination

8. 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.

9. On 15 March 2024 the Tribunal approved the related nomination by Stonebridge Commercial Solutions Ltd under s 140GB of the Act.

10. Stonebridge Commercial Solutions Ltd was an approved sponsor at the time the nomination was approved, and the nomination has not ceased.

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

12. As Mrs Linda Maureen Nelson’s application was refused as a member of the family unit of the primary applicant, the Tribunal recommends that her application be reconsidered together with that of Mr Nelson.

    OVERALL CONCLUSION

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 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(1) of Schedule 2 to the Regulations.

    George Hallwood
    Member