Ren (Migration)

[2023] AATA 4774

Ren (Migration) [2023] AATA 4774 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Siying Ren

REPRESENTATIVE:  Mr Jones Michael Terence

CASE NUMBER:  2112104

HOME AFFAIRS REFERENCE(S):          BCC2020/1936004

MEMBER:SM Michael Cooke

DATE:9 February 2023

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 of Schedule 2 to the Regulations

Statement made on 09 February 2024 at 10:03am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Short-term stream – Massage Therapist – Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved – approved standard business sponsor – approved nomination – decision under review remitted    

LEGISLATION
Migration Act 1958, ss 65, 360
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 23 August 2021 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 21 July 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). 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 Massage Therapist.

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

4. The applicant appeared before the Tribunal on 9 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the nominator’s spokesperson. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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 is now the subject of an approved nomination.

   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. On 9 February 2024 the Tribunal approved the nomination in the visa application (AAT 2109216) - Chi Massage Clinic Wagga Wagga Pty Ltd. The nominator is an approved work sponsor at the time of approval and the nomination has not ceased.

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

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

    DECISION

12. 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 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member