O'Neill (Migration)

[2023] AATA 3965

O'Neill (Migration) [2023] AATA 3965 (23 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Natalia Kathleen O'Neill

REPRESENTATIVE:  Mrs Rola Hijwel (LPN 5510944)

CASE NUMBER:  1933946

HOME AFFAIRS REFERENCE(S):          BCC2019/4859132

MEMBER:Peter Papadopoulos

DATE:23 August 2023

PLACE OF DECISION:  Sydney

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 in Part 482 of Schedule 2 to the Migration Regulations 1994; and

·cl 482.222 in Part 482 of Schedule 2 to the Migration Regulations 1994.

Statement made on 23 August 2023 at 2:21pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Marketing Specialist – subject of an approved nomination – genuine intention to perform the nominated occupation – genuine position – skills, qualifications and employment background – genuine temporary entrant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212, 482.222

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 18 November 2019 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 27 September 2019. 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 Short-term stream to work in the nominated occupation of Marketing Specialist (ANZSCO 225113).

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 Ms O’Neill was not subject to an approved nomination as the nomination application of her sponsoring employer, Clean Power Australia Pty Ltd (the nominating business) was not approved on 17 October 2019.

4. The applicant appeared before the Tribunal on 22 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Luke Reddin, a Director of the nominating business.

5. The applicant was 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

   Clause 482.212

   Approved nomination

7. Clause 482.212(1) requires the applicant to meet the following criteria at the time of decision:

   (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 as an approved work sponsor at the time the nomination was approved;

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

8. In the Department’s decision of 18 November 2019, the delegate found that the requirements in clause 482.212(1) were not met as the nomination application was refused on 18 November 2019.

9. On 27 September 2019, the nominating business lodged with the Department a nomination application in respect of the primary applicant for the nominated position of Marketing Executive which corresponded to the occupation of Marketing Specialist (ANZSCO 225113).  The delegate refused to approve the nomination on 18 November 2019. On 23 August 2023, the Tribunal set aside this decision of the delegate and substituted it with a decision that the nomination be approved.

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

    Genuine intention to perform the nominated occupation and the requirement for a genuine position

11. Clause 482.212(2) requires the applicant to meet the following criteria at the time of decision:

    (2)      Both of the following apply:

    (a)  The applicant’s intention to perform the nominated occupation is genuine;

    (b)   The position associated with the nominated occupation is genuine.

12. The following documents were provided to the Department in support of the visa application:

    ·The applicant’s Professional Certificate in Marketing, awarded by The Chartered Institute of Marketing and The Open University, issued February 2015;

    ·Work Reference for the applicant from Marcom Collective Ltd;

    ·UK Police Clearance for the applicant;

    ·The applicant’s resume;

    ·Biodata age of the applicant’s UK passport.

13. On 15 October 2023, the following documents were provided to the Tribunal:

    ·The applicant’s statutory declaration dated 15 August 2023;

    ·Reference for the applicant from Craig Cannon dated 19 July 2023;

    ·Reference for the applicant from Gary Allen dated 9 August 2023;

    ·The applicant’s satisfactory VETASSESS Skilled Migration Assessment (for the occupation of Marketing Specialist ANZSCO 225113) dated 14 July 2020;

    ·The applicant’s updated resume;

    ·The applicant’s qualification certificates:

    oBachelor of Arts with Honours (English and Media Studies) 2009

    oProfessional Certificate in Marketing, awarded by The Chartered Institute of Marketing and The Open University, issued February 2015.

14. Based upon its review of this material and the applicant’s oral evidence at hearing, the Tribunal is satisfied that Ms O’Neill has a genuine intention to perform the nominated occupation.

15. Furthermore, in its decision relating to the nomination associated with the position referred to earlier in this decision, the Tribunal found that the position is genuine.

16. For these reasons, the requirements of cl 482.212(2) are met.

    The applicant’s skills, qualifications and employment background

17. Clause 482.212(3) and (4) require the applicant to meet the following criteria at the time of decision:

    (3)The applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

    (4)If the Minister requires the applicant to demonstrate that he or she has skills that are necessary to perform the tasks of the nominated occupation, the applicant demonstrates that he or she has those skills in the manner specified by the Minister.

18. Based upon its review of the documentary evidence referred to above and the applicant’s oral evidence at hearing, the Tribunal is satisfied that Ms O’Neill possesses the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Marketing Specialist (ANZSCO 225113).

19. For these reasons, the requirements of cl 482.212(3) and (4) are met.

    Clause 482.222

    Genuine temporary entrant

20. Clause 482.222 requires that the applicant is a genuine applicant for entry as a short term visa holder because:

    (a)    the applicant intends genuinely to stay in Australia temporarily, having regard to:

    i.the applicant’s circumstances; and

    ii.the applicant’s immigration history; and

    iii.any other relevant matter; and

    (b)   the applicant intends to comply with any conditions to which the visa is subject, having regard to:

    i.the applicant’s record of compliance with any condition to which a visa previously held by the applicant (if any) was subject; and

    ii.the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)   of any other relevant matter.

21. During the hearing, the applicant expressed her intention that she intended to remain in Australia temporarily and understood that the visa, if granted, would facilitate a further period of stay of up to two years.  Her immigration history was discussed at some length during the hearing and the Tribunal observes that Ms O’Neill has lawfully remained onshore at all times and has previously departed Australia twice during her stay onshore.  There is no indication in the Departmental files or other evidence before the Tribunal that the applicant has not complied with any visa conditions imposed upon any visa which she previously held. In her oral evidence before the Tribunal, Ms O’Neill demonstrated a sincere appreciation of the need to comply with the conditions to be imposed on the Subclass 482 visa that she seeks.

22. On 22 August 2023, the representative lodged a submission with the Tribunal in which it was argued that Ms O’Neill should be regarded as a genuine temporary entrant because, among other things, she is a national of the United Kingdom and there are no economic or political circumstances that impede her return to United Kingdom, where her family and friends continue to reside.  The representative also acknowledged the seemingly protracted duration of Ms O’Neill’s stay in Australia since her arrival in September 2019 but drew the Tribunal’s attention to the applicant’s evidence at hearing that her decision to remain onshore was largely influenced by her desire to continue to assist her employer and that the impact of pandemic-related travel restrictions that impeded her ability to depart.  The Tribunal accepts this argument and the applicant’s evidence at hearing in that regard.  

23. For these reasons, the requirements of cl 482.222 are met.

    Conclusion

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

    DECISION

25. 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 in Part 482 of Schedule 2 to the Regulations; and

    ·cl 482.222 in Part 482 of Schedule 2 to the Regulations.

    Peter Papadopoulos
    Member