Shah (Migration)

[2023] AATA 1363

Shah (Migration) [2023] AATA 1363 (5 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Richang

Anil Shah

Ms Julia Cristiana Tettamanzi

REPRESENTATIVE:  Ms Rebecca Wallace (MARN: 0640179)

CASE NUMBER:  1929654

HOME AFFAIRS REFERENCE(S):          BCC2019/4105157

MEMBER:Amanda Mendes Da Costa

DATE:5 May 2023

PLACE OF DECISION:  Melbourne

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.

The Tribunal considers the second named applicant meets the secondary requirements for the grant of a Subclass 482 visa.

Statement made on 5 May 2023 at 11.50am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – technical sales representative – subject of approved position nomination – refusal of related nomination application set aside in separate review – member of family unit – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

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 9 October 2019 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 19 August 2019. 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 Technical Sales Representative nec.

3. The delegate in this case refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because he was not the subject of an approved nomination.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 whether the applicant meets the requirements of cl 482.212(1) of Schedule 2 to the Regulations.

   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. The Tribunal notes that SPLEND PTY LTD (the nominator) made a nomination application for the position of Technical Sales Representative nec (ANZSCO Code 225499) in respect of the applicant, but a delegate of the Minister refused that application.  The nominator subsequently sought a review of that decision with this Tribunal and on 29 March 2023 the Tribunal set aside the delegate’s decision and substituted its own decision to approve the nomination application.

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

11. Given its findings regarding the applicant, the Tribunal is satisfied that the second named applicant meets the secondary requirements for the grant of a Temporary Skill Shortage (Class GK) (Subclass 482) visa.

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

    DECISION

13. 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.

14. The Tribunal considers the second named applicant meets the secondary requirements for the grant of a Subclass 482 visa.

    Amanda Mendes Da Costa
    Member