Ruznic (Migration)

[2022] AATA 1945

Ruznic (Migration) [2022] AATA 1945 (10 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Ms Marjana Ruznic

Mr Marjan Gregoric

REPRESENTATIVE:  Mr Toth Krisztian

CASE NUMBER:  1836510

HOME AFFAIRS REFERENCE(S):          BCC2018/4878508

MEMBER:Namoi Dougall

DATE:10 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

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

Statement made on 10 May 2022 at 1:10pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Chef – 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 7 December 2018 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 5 November 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 primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Chef (ANZSCO 351311).

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 Ms Marjana Ruznic (the primary applicant) was not subject to an approved nomination as the nomination application of his sponsoring employer, Cowboy’s Leagues Club Pty Ltd (the nominating business) was not approved on 8 November 2018.

4. The primary applicant appeared before the Tribunal on 24 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the General Manager of the nominating buisness, Mr Clint Williams.

5. The applicants were 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 that relevant criteria 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.

   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. 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.

10. On 4 October 2018, the nominating business lodged with the Department a nomination application in respect of the primary applicant for the nominated position of Chef (ANZSCO 351311) which was refused on 8 November 2018. On 10 May 2022, the Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved.

11. On the above, the Tribunal is satisfied that the criterion in cl.482.212(1) are met.

12. The other applicants applied for the visa on the basis of being members of the family unit of the primary applicant who meets primary criteria. As the Tribunal is remitting the application of the primary applicant with a finding that the requirements of cl.427.212(1) have been met, the remaining criteria for the Subclass 482 visa will be considered for all applicants.

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

    The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

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

    Namoi Dougall
    Member