Perez Castaneda (Migration)

[2022] AATA 1010

Perez Castaneda (Migration) [2022] AATA 1010 (10 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Daniel Perez Castaneda

Mrs Diana Katherine Cabanzo Cuadrado

Master Matias Perez Cabanzo

Master Emilio Perez Cabanzo

REPRESENTATIVE:  Mr Adam Khaze (MARN: 0960138)

CASE NUMBER:  1900777

HOME AFFAIRS REFERENCE(S):          BCC2018/4803604

MEMBER:Karen McNamara

DATE:10 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application 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 10 March 2022 at 2:21pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Sheetmetal Trades Worker – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 21 December 2018 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 31 October 2018. 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 Mr Daniel Perez Castaneda (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Sheetmetal Trades Worker (ANZSCO 322211).

3. On 21 December 2018, the delegate refused to grant the visas on the basis that Mr Daniel Perez Castaneda did not satisfy the requirements of cl.482.212(1) of Schedule 2 to the Regulations because he was not the subject of an approved nomination by an approved Standard Business Sponsor (SBS). The delegate found that the applicant’s employer, INCORE AIR NSW 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 applicants applied to the Tribunal on 11 January 2019, for review of the delegate’s decision.

5. On 3 March 2022, Mr Daniel Perez Castaneda appeared before the Tribunal via telephone on behalf of the applicants, to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Aracelli Rochabrunt (the nominator) in the related matter for the nomination review application (AAT Case file 1836579). The related matters were heard concurrently in a combined hearing.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. 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.

7. The applicants were represented in relation to the review. The representative attended the Tribunal 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 the present case is whether the applicant meets the requirements of clause 482.212(1).

   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. The nominating employer INCORE AIR NSW Pty Ltd applied to the Department for approval of a nomination in relation to the occupation of Sheetmetal Trades Worker (ANZSCO 322211). That nomination was refused by the Department on 22 November 2018 and consequently the applicants’ visa applications were refused.

12. INCORE AIR NSW Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1836579). On 10 March 2022, 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.

13. The Tribunal is satisfied from the Department’s records that INCORE AIR NSW Pty Ltd was approved as a standard business sponsor on 18 May 2018 to 18 May 2023.

14. 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.

15. 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.

16. The second named applicant (Mrs Diana Katherine Cabanzo Cuadrado), third named applicant (Master Matias Perez Cabanzo) and fourth named applicant (Master Emilio Perez Cabanzo) applied on the basis of being a member of the family unit of the first named applicant (Mr Daniel Perez Castaneda). The applications by Mrs Diana Katherine Cabanzo Cuadrado, Master Matias Perez Cabanzo and Master Emilio Perez Cabanzo will be determined by reference to the outcome of Mr Daniel Perez Castaneda’s application on remittal to the Department for consideration.

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

    DECISION

18. The Tribunal remits the application 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