Pardo Cortes (Migration)

[2023] AATA 4063

Pardo Cortes (Migration) [2023] AATA 4063 (24 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gilberto

Pardo Cortes

Mrs Martha Liliana Sora
Master

Samuel Pardo Sora

REPRESENTATIVE:  Mr Nam Hoang (MARN: 0641294)

CASE NUMBER:  2002321

HOME AFFAIRS REFERENCE(S):          BCC2019/6159005

MEMBER:Alan McMurran

DATE:24 November 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; and

The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second and third named applicants meet the following criteria for a Subclass 482 visa

·cl 482.312 of Schedule 2 to the Regulations.

Statement made on 24 November 2023 at 3:09pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Painting Trades Worker – nomination approved upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 140
Migration Regulations 1994, Schedule 2, cls 482.212, 482.312

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 7 February 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 5 February 2020 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, Mr Gilberto Pardo Cortes (the primary visa applicant), Mrs Martha Liliana Sora and  Master Samuel Pardo Sora (secondary applicants) applied for the visas on 21 November 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage).

3. 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.

4. In this case, the primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Painting Trades Worker ANZSCO 332211.

5. 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 the nomination identified in the application had not been approved under section 140GB of the Act.

6. The applicants were represented in relation to the review.

7. On 24 November 2023, the Tribunal found it could determine the review on the information before it and without a hearing. The Tribunal has now finalised the review of the visa application similarly and without a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the nomination identified in the application has been approved under section 140GB of the Act.

   Requirement for an approved nomination

10. 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.

11. On 24 November 2023, the Tribunal made a decision on review on the available information to set aside the decision not to approve the nomination, and substituting a decision the nomination is approved.

12. The Tribunal finds therefore that the primary visa applicant is now the subject of a nomination as identified in the visa application which is approved.

13. For these reasons the requirements of cl 482.212(1) are now met.

    Secondary applicants

14. Clause 482.312 of Schedule 2 to the Regulations specifies that the secondary 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.

15. As the primary visa applicant is now eligible for holding a Subclass 482 (Temporary Skill Shortage ) visa, the appropriate course is to remit their applications for the visas with the primary visa application, for further consideration.

    Conclusion

16. Given these findings, the appropriate course is to remit the application to the Minister to consider the remaining criteria for the visas.

    DECISION

17. 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; and

    The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second and third named applicants meet the following criteria for a Subclass 482 visa

    ·cl 482.312 of Schedule 2 to the Regulations.

    Alan McMurran
    Member