Rodriguez Buitrago (Migration)

[2024] AATA 2186

Rodriguez Buitrago (Migration) [2024] AATA 2186 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ingrid Johanna Rodriguez Buitrago

REPRESENTATIVE:  Mr Felix Carao (MARN: 1069354)

CASE NUMBER:  2202307

HOME AFFAIRS REFERENCE(S):          BCC2021/2012734

MEMBER:Sheridan Aster

DATE:14 June 2024

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 cl 482.212(1) of Schedule 2 to the Migration Regulations 1994.

Statement made on 14 June 2024 at 6:15am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Graphic Designer – 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 11 February 2022 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 22 October 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. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of graphic designer.

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, which requires that the nomination identified in the visa application is approved.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

5. 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.

6. Flesfadar Pty Ltd applied for approval to nominate Ingrid Johanna Rodriguez Buitrago to work in the occupation of graphic designer on 21 October 2021. The nomination application was refused by a delegate of the Minister on 24 November 2021. The company applied to the Tribunal for a review of that decision. On 13 June 2024, the Tribunal set aside the decision not to approve the nomination and substituted it with a decision that the nomination is approved.

7. Flesfadar Pty Ltd was approved as a standard business sponsor on 5 August 2021, valid until 5 August 2026.

8. For these reasons the requirements of cl 482.212(1) are met. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

   DECISION

9. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets cl 482.212(1) of Schedule 2 to the Migration Regulations 1994.

   Sheridan Aster
   Member