Seo (Migration)

[2024] AATA 1662

Seo (Migration) [2024] AATA 1662 (3 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Joohee

Seo

Mr Yongseok Choi

REPRESENTATIVE:  Mr Chang Park

CASE NUMBER:  2110029

HOME AFFAIRS REFERENCE(S):          BCC2021/533243

MEMBER:C. Packer

DATE:3 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application 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)(a) of Schedule 2 to the Regulations

Statement made on 3 June 2024 at 5.05pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – subject of approved position nomination – refusal of related nomination application set aside in separate review – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)(a)

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 6 August 2021 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 13 April 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 primary visa applicant (the applicant) is seeking the visa in the Medium-term stream.

3. The applicants were represented in relation to the review.

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. On 3 June 2024 in case number 2109458 the Tribunal set aside the decision not to approve the nomination by Konstruktion Pty Ltd and substituted a decision that the nomination is approved. For these reasons the requirements of cl 482.212(1)(a) are met.

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

   DECISION

8. The Tribunal remits the application 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)(a) of Schedule 2 to the Regulations

   C. Packer
   Member