Ponce Casas (Migration)

[2022] AATA 1966

Ponce Casas (Migration) [2022] AATA 1966 (11 May 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Oscar Manuel Ponce Casas

REPRESENTATIVE:  Mr Peter Watt (MARN: 0742076)

CASE NUMBER:  1908801

HOME AFFAIRS REFERENCE(S):           BCC2019/284800

MEMBER:  Michelle East

DATE:  11 May 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Statement made on 11 May 2022 at 2:22pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Welder (First Class) – subject of an approved nomination – decision under review affirmed

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 March 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).

1. The applicant applied for the visa on 31 January 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 Welder (First Class) (ANZSCO 322313).

1. 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 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

1. On 27 April 2022 the Tribunal wrote to the applicant in the following terms:

On 11 March 2019 the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of Petritek Pty Ltd. On 22 April 2022 the Tribunal affirmed the Department’s decision to refuse the nomination. Consequently, the decision made by the Department of Home Affairs on 20 February 2019 to refuse the nomination stands.

1. The applicant was advised that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

1. A response was requested by 11 May 2022 and on 10 May 2022 the applicant’s representative responded asking the Tribunal to ‘please proceed with a decision’.

1. Accordingly, the Tribunal has proceeded to review the matter based on the information submitted, without a hearing.

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

1. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is the subject of a valid and approved nomination.

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.

1. As noted above, on 22 April 2022, this Tribunal affirmed the decision in relation to the nomination application lodged by the applicant’s proposed sponsor. Therefore, the decision of the Department refusing the associated nomination application still stands.

1. Based on the evidence before it, the Tribunal is satisfied that at the date of its decision the applicant is not the subject of an approved nomination.

1. For these reasons the requirements of cl 482.212(1) are not met.

1. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

DECISION

1. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Michelle East Member