Nuyandoa (Migration)

[2020] AATA 2769

Nuyandoa (Migration) [2020] AATA 2769 (8 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Gaitree Nuyandoa

Premduth Nuyandoa

CASE NUMBER:  1923474

HOME AFFAIRS REFERENCE:               BCC2019/3246635

MEMBER:Lilly Mojsin

DATE:8 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 8 April 2020 at 3.00 pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Temporary Skill Shortage - Short-term stream – position of Hairdresser – no approved nomination – business ownership changed – new nomination lodged – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, Schedule 2, cls 482.212, 482.312; r 2.75

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 12 August 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 June 2019.

3. 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 (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.

4. In this review, the primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation and associated position of Hairdresser – ANZSCO 39111.  The applicant is being sponsored by Shashi Beauty Salon Pty Ltd[1].

   [1] AAT File 1920868

5. The delegate in this review 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 because the prospective sponsoring employer did not have an approved nomination in place for the applicant.

6. The applicant appeared before the Tribunal on 2 April 2020 to give evidence and present arguments in a joint hearing, by telephone, with the prospective sponsoring employer, Shashi Beauty Salon Pty Ltd.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the applicant’s nomination, as identified in the application has been approved pursuant to cl.482.212.

8. Clause 482.212 of the Regulations states:

   482.212

   (1) Each of the following applies:

   (a) the nomination identified in the application has been approved under section 140GB of

   the Act;

   (b) the person who made the nomination was an approved sponsor at the time the

   nomination was approved;

   (c) the approval of the nomination has not ceased under regulation 2.75.

9. On 8 April 2020, the Tribunal refused the approval of the nomination of a position, made by Shashi Beauty Salon Pty Ltd in the nominated occupation and associated position of Hairdresser – ANZSCO 39111. The nominee was Gaitree Nuyandoa, the applicant.  

10. At the time of this decision, the applicant is not the subject of an approved nomination and has not withdrawn this application in writing.

11. For these reasons the applicant does not meet the requirements of subcl.482.212(1)(a) and therefore cannot meet cl. 482.212.

12. The secondary applicant must meet cl. 482.312 of Schedule 2 of the Migration Regulations.

13. Clause 482.312 provides:

    482.312

    (1) 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.

14. As the primary applicant does not hold a Subclass 457 visa or a Subclass 482 visa, the secondary applicant is not a member of the family unit of a person who is the holder of a Subclass 457 visa or a Subclass 482 visa.

15. The Tribunal finds the applicant does not meet subcl.482.312(1), and therefore cl. 482.312 is not met.

16. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Lilly Mojsin
    Member