Parul (Migration)

[2023] AATA 1115

Parul (Migration) [2023] AATA 1115 (20 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Parul
Mr Sharandeep Singh

REPRESENTATIVE:  Ms Athina Stephanou (MARN: 0103875)

CASE NUMBER:  2106427

HOME AFFAIRS REFERENCE(S):          BCC2021/258147

MEMBER:Alan McMurran

DATE:20 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; and

The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 482 visa:

· cl 482.312 of Schedule 2 to the Regulations.

Statement made on 20 April 2023 at 5:20pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Café or Restaurant Manager – subject of an approved nomination – decision under review remitted

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 14 May 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 26 April 2021 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, who are citizens of the Republic of India, applied for the visas on 19 February 2021. 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).

3. 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.

4. Other members of the family unit, in this case Mr Sharandeep Singh, who is an applicant for the visa, needs to only satisfy the secondary criteria.

5. In this case, the primary visa applicant, Mrs  Parul (the applicant) has been sponsored by the nominator, Vikavas Mataji Pty Ltd ATF The Vikavas Trust, trading also as BP Dysart. The visa applicant is seeking the visa in the Short-term stream to work in regional Queensland in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111).

6. 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.

7. The applicant appeared before the Tribunal on 13 April 2023 by video in a combined hearing with a review of the nomination refusal[1], to give evidence and present arguments.

   [1] Tribunal case 2103595

8. The applicants were represented in relation to the review by a registered migration agent who also appeared for the hearing and made submissions.

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 this case is whether the nomination identified in the application has been approved under s 140GB of the Act.

    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 Tribunal has available the information from the Department files and the Tribunal files for the applications. The Tribunal has also had regard to the evidence and submissions from the hearing in the nomination review, and which is set out in the decision in the related nomination case.

13. Following the hearing, on 14 April 2023, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination. The Tribunal finds therefore that the nomination identified in the visa application is approved.

14. The Tribunal further finds from the available information that the nomination was made by a person who was an approved work sponsor at the time of approval and which has not ceased.

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

    Secondary applicant

16. Regulation 482.312 requires that the secondary applicant, Mr Sharandeep Singh,is a member of the family unit of the applicant, who is the primary applicant and who is eligible for the grant of a Subclass 482 visa, subject to reconsideration by the Department.

17. The Tribunal finds that the secondary applicant is a member of the family unit of the applicant. The appropriate course is therefore to remit the application by the secondary applicant along with that of the primary applicant for consideration in respect of the remaining criteria for the visa.

    CONCLUSION

18. Given these findings, the appropriate course is to remit the applications to the Minister for reconsideration.

    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; and

    The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 482 visa:

    · cl 482.312 of Schedule 2 to the Regulations.

    Alan McMurran
    Member