Phelan (Migration)

[2021] AATA 5025

Phelan (Migration) [2021] AATA 5025 (21 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Brian John Phelan

REPRESENTATIVE:  Mr William Wai Lam (MARN: 1913731)

CASE NUMBER:  1830852

HOME AFFAIRS REFERENCE(S):          BCC2018/3242720

MEMBER:Karen McNamara

DATE:21 December 2021

PLACE OF DECISION:  Sydney

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 21 December 2021 at 6:38pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Finance Broker – nomination approved upon review – 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 18 October 2018 to refuse to grant Mr Brian John Phelan (the 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 28 August 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 applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Finance Broker (ANZSCO 222112).

3. On 18 October 2018, the delegate refused to grant the visa on the basis that the applicant 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, Auscred 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 applicant applied to the Tribunal on 22 October 2018, for review of the delegate’s decision.

5. On 9 December 2021, the applicant appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Elliot Butters (the nominator) in the related matter for the nomination review application (AAT Case file 1828876). 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 applicant. 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 applicant was given a fair opportunity to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent. 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

1. 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.

2. The nominating employer, Auscred Pty Ltd applied to the Department for approval of a nomination in relation to the occupation of Finance Broker (ANZSCO 222112). That nomination was refused by the Department on 17 September 2018 and consequently the applicant’s visa application was refused.

3. Auscred Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1828876). On 21 December 2021, 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.

4. The Tribunal is satisfied from the Department’s records that Auscred Pty Ltd was approved as a standard business sponsor on 21 November 2017 to 21 November 2022.

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

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

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

   DECISION

8. 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.

   Karen McNamara
   Member