Sarkis (Migration)

[2022] AATA 1262

Sarkis (Migration) [2022] AATA 1262 (16 March 2022)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Said Sarkis

REPRESENTATIVE:  Mr Adam Yao Guo Chen (MARN: 0319217)

CASE NUMBER:  1837056

HOME AFFAIRS REFERENCE(S):           BCC2018/4861957

MEMBER:Namoi Dougall

DATE OF DECISION:  16 March 2022

DATE CORRIGENDUM

SIGNED:4 April 2022

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

That “cl 482.212(a)” referred to as part of the decision on the front page of the decision should be replaced with “cl.482.212(1)”.

Statement made on 04 April 2022 at 10:16am

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Said Sarkis

REPRESENTATIVE:  Mr Adam Yao Guo Chen (MARN: 0319217)

CASE NUMBER:  1837056

HOME AFFAIRS REFERENCE(S):          BCC2018/4861957

MEMBER:Namoi Dougall

DATE:16 March 2022

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(a) of Schedule 2 to the Regulations.

Statement made on 16 March 2022 at 4:05pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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 12 December 2018 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 3 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Stonemason (ANZSCO 3311112).

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 the applicant was not subject to an approved nomination as the nomination application of his sponsoring employer, The Trustee for the AAS Employees Trust (the nominating business) was not approved on 7 November 2018.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the application is subject to an approved nomination.

   Requirement for an approved nomination

7. 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.

8. On 3 November 2018, the nominating business lodged with the Department a nomination application in respect of the applicant for the nominated position of Stonemason (ANZSCO 331112) which was refused on 7 November 2018. On 16 March 2022, the Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved.

9. On the above, the Tribunal is satisfied that the criterion in cl.482.212(1) are met and the matter should be remitted the matter to the Minister to consider the remaining criteria for the visa.

   decision

10. 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.

    Namoi Dougall
    Member