O'Brien (Migration)

[2022] AATA 1870

O'Brien (Migration) [2022] AATA 1870 (1 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sally O'Brien

REPRESENTATIVE:  Mr James Hammond (MARN: 0636764)

CASE NUMBER:  1828804

HOME AFFAIRS REFERENCE(S):          BCC2018/2726236

MEMBER:Justin Meyer

DATE:1 March 2022

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 of Schedule 2 to the Regulations

Statement made on 1 March 2022 at 8:06am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Program or Project Administrator – 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 28 September 2018 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 20 July 2018. 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 Medium-term stream to work in the nominated occupation of Program or Project Administrator.

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 of Schedule 2 to the Regulations because provides that:

   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.

   The applicant was advised that their prospective sponsoring employer Hawkins Consolidated Pty Ltd did not have an approved nomination in place for them.

4. The applicant was 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 Tribunal, after considering all the documentary evidence before it, was able to make a positive decision on the papers and no hearing was required. 

7. For the following reasons, the Tribunal has concluded that the decision to refuse the applicant’s visa should be set aside. 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 on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

8. On 1 March 2022, the Tribunal decided to set aside the Department’s decision and substituted a decision approving the nomination.

9. As the relevant nomination has now been approved, it follows that the requirement in regulation 482.212 is now met.

10. Given these findings, the appropriate course is to remit the application for reconsideration.

    DECISION

11. 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 of Schedule 2 to the Regulations

    Justin Meyer
    Member