Ombaka (Migration)

[2023] AATA 3726

Ombaka (Migration) [2023] AATA 3726 (23 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Michael Ombaka

REPRESENTATIVE:  Ms Shadi Golchin (MARN: 2014964)

CASE NUMBER:  2003630

HOME AFFAIRS REFERENCE(S):          BCC2019/4675455

MEMBER:Terrence Baxter

DATE:23 October 2023

PLACE OF DECISION:  Brisbane

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 criterion for a Subclass 482 visa:

·cl 482.212(1)(a) of Schedule 2 to the Regulations.

Statement made on 23 October 2023 at 12:08pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Computer Network and Systems Engineer – Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved – approved nomination – decision under review remitted    

LEGISLATION
Migration Act 1958, ss 65, 140
Migration Regulations 1994, 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 7 February 2020 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 18 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 Medium-term stream to work in the nominated occupation of Computer Network and Systems Engineer for Acacia Ridge Container Park Pty Ltd (the nominator).

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 which required that the nomination identified in the visa application had been approved. The delegate found that the applicant was not the subject of an approved nomination and that accordingly the applicant did not meet the requirements of cl 482.212(1) and did not meet the requirements of cl 482.212 as a whole.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 25 February 2020.

5. The applicant appeared before the Tribunal on 30 August 2023 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the nomination application.

6. The applicant was represented in relation to the review by his registered migration agent Ms Shadi Golchin of Results Migration of Brisbane, Queensland.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether there is an approved nomination.

   Requirement for an approved nomination

9. 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. Clause 482.212(1)(a) specifically requires that the nomination identified in the visa application has been approved under s 140GB of the Act.

10. Records of the Department of Home Affairs (the Department) indicate that the nominator made an application to the Department to have the occupation of Computer Network and Systems Engineer approved, with the applicant as nominee, on 23 August 2019. The nomination application was refused on 11 October 2019 and the sponsor sought review of that decision with the Tribunal on 30 October 2019.

11. On 23 October 2023, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination.

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

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 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(1)(a) of Schedule 2 to the Regulations.

    Terrence Baxter
    Member