Pham (Migration)

[2022] AATA 3288

Pham (Migration) [2022] AATA 3288 (18 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Ngoc Thuy Pham

REPRESENTATIVE:  Ms Susela Nair (MARN: 0318887)

CASE NUMBER:  1911564

HOME AFFAIRS REFERENCE(S):          BCC2019/1543982

MEMBER:Mary Sheargold

DATE:18 August 2022

PLACE OF DECISION:  Melbourne

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 criteria for a Subclass 482 visa:

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

Statement made on 18 August 2022 at 5:09pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Accountant (General) – nomination identified in the visa application is approved –approved standard business sponsor – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65
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 30 April 2019 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 27 March 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 Accountant (General).

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 because the nomination application made by Simba Pty Ltd atf Simba Unit Trust for approval of the position of Accountant (General) was not approved.

4. The applicant appeared before the Tribunal by MS Teams video link on 25 July 2022 to give evidence and present arguments.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements in cl.482.212(1) of Schedule 2 to the Regulations.

   Requirement for an approved nomination

8. 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.

9. The applicant’s employer, Simba Pty Ltd atf Simba Unit Trust, had its nomination for approval of the position of Accountant (General) made in respect of the applicant refused by the Department.  The nominator sought review of the refusal decision, and on 18 August 2022, the Tribunal set aside the Department’s decision and substituted a decision to approve Simba Pty Ltd atf Simba Unit Trust’s nomination.

10. Accordingly, based on the evidence before it (including the Departmental file), the Tribunal is satisfied that:

    a.the nomination identified in the visa application is approved; and

    b.it was made by Simba Pty Ltd atf Simba Unit Trust, which is an approved standard business sponsor until 15 June 2027; and

    c.the nomination has not ceased.

11. Therefore, the Tribunal finds that the requirements of cl 482.212(1) are met.

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

    decision

13. 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) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member