ONG (Migration)

[2023] AATA 900

ONG (Migration) [2023] AATA 900 (6 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ma

Vaneza Suiza ONG

Ms Judith De Ocampo PUNZALAN

REPRESENTATIVE:  Mr Benjamin KRAMER (MARN: 1386609)

CASE NUMBER:  1924498

HOME AFFAIRS REFERENCE(S):          BCC2019/3319135

MEMBER:Karen McNamara

DATE:6 April 2023

PLACE OF DECISION:  Sydney

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 06 April 2023 at 4:07pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – internal auditor – subject of approved position nomination – related nomination application refused – combined hearing of nomination and visa reviews – nomination refusal set aside – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212(1)(a), 482.312

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 21 August 2019 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 2 July 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 primary visa applicant Ms Ma Vaneza Suiza Ong (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Internal Auditor (ANZSCO 221214).

3. On 21 August 2019, the delegate refused to grant the visas on the basis that the first named applicant, Ms Ma Vaneza Suiza Ong did not satisfy the requirements of cl.482.212(1) of Schedule 2 to the Regulations, because she was not the subject of an approved nomination by an approved Standard Business Sponsor (SBS). The delegate found that the applicant’s employer, Sydney Waste Pty Ltd did not have an approved nomination for the applicant. Accordingly, the applicant did not meet cl.482.212(1) and therefore did not meet cl.482.212.

4. The delegate also found that the second named applicant, Ms Judith De Ocampo Punzalan could not be granted a Subclass 482 visa, as she did not meet the secondary visa criterion (cl.482.312) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 457 visa or a Subclass 482 visa.

5. The applicants applied to the Tribunal on 2 September 2019, for review of the delegate’s decision.

6. On 29 March 2023, Ms Ma Vaneza Suiza Ong appeared before the Tribunal via telephone on behalf of the applicants to give evidence and present arguments. The secondary applicant, Ms Judith De Ocampo PUNZALAN also appeared. The Tribunal also received oral evidence from Mr Elon Zizer (the nominator), in the related matter for the nomination review application (AAT Case file 1922321). The related matters were heard concurrently in a combined hearing.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of clause 482.212(1).

    Requirement for an approved nomination

11. 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.

12. The nominating employer, Sydney Waste Pty Ltd applied to the Department for approval of a nomination in relation to the occupation of Internal Auditor (ANZSCO 221214). That nomination was refused by the Department on 22 July 2019 and consequently the applicants’ visa applications were refused.

13. Sydney Waste Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1922321). On 6 April 2023 the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination. Therefore, the applicant satisfies cl.482.212(1)(a) of Schedule 2 to the regulations.

14. The Tribunal is satisfied from the Department’s records that Sydney Waste Pty Ltd was most recently approved as a standard business sponsor on 19 March 2019 to 19 March 2024.

15. Accordingly, the Tribunal is satisfied that the nominator is an approved sponsor and was at the time that the nomination was approved, and that the approved nomination has not ceased.

16. As the requirements of clauses 482.212(1)(a), (b) and (c) are satisfied, accordingly the requirements in cl.482.212(1) are met as a whole.

17. The second named applicant Ms Judith De Ocampo Punzalan applied on the basis of being a member of the family unit of the first named applicant Ms Ma Vaneza Suiza Ong. The application by Ms Judith De Ocampo Punzalan, will be determined by reference to the outcome of Ms Ma Vaneza Suiza Ong’s application on remittal to the Department for consideration.

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

    DECISION

19. 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.

    Karen McNamara
    Member