SHAHI (Migration)

[2022] AATA 3887

SHAHI (Migration) [2022] AATA 3887 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Ms ASMITA SHAHI

Mr RAJAN SHAHI

REPRESENTATIVE:  Ms Hannah He Chen (MARN: 0429389)

CASE NUMBER:  1900211

HOME AFFAIRS REFERENCE(S):          BCC2018/3253217

MEMBER:Deputy President J.L Redfern PSM

DATE:17 November 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 clauses 482.212(1) and (2) of Schedule 2 to the Regulations.

Statement made on 17 November 2022 at 3:39pm

CATCHWORDS:

MIGRATION – temporary skill shortage (class GK) visa – subclass 482 – short-term stream – genuine position – restaurant manager –  approved nomination – decision under review remit with direction

legislation

Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), Sch 2 Part 482

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 21 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 28 August 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.

3. 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 Restaurant Manager (ANZSCO 141111). She was nominated for this role by C&G Family Pty Limited (C&G) on 11 August 2018. C&G, which operates a restaurant located in Harris Park and has been trading since 2015, trades under the name ‘Chulho Authentic Nepalese and Indian Cuisine’. On 22 November 2018, a delegate decided not to approve the nomination made by C&G. The delegate was not satisfied C&G met the requirement in reg 2.72 (10)(a) of the Regulations, namely, the delegate was not satisfied that the position nominated by C&G for a Restaurant Manager was genuine.

4. The same delegate considered the applications for the subclass 482 visas and refused to grant the visas on the basis that the first named applicant did not satisfy the requirements of clause 482.212(1) of Schedule 2 to the Regulations because she did not have an approved nomination. The delegate did not assess the application against any other required criteria.

5. C&G applied to the Tribunal for review of the refusal of the nomination. C&G and the applicants were represented in relation to the review by Ms Hannah He Chen.

6. C&G and the applicants, Ms Asmita Shahi and Mr Rajan Shahi appeared before the Tribunal on 27 April 2022 to give evidence and present arguments. Oral evidence was provided by the director, Mrs Mina Kumari Shrestha, and Ms Shahi. The Tribunal also received oral evidence from Mr Chij Kumar Shrestha who was the general manager for C&G. Mr and Mrs Shrestha are married and while Mrs Shrestha is both director and company secretary for the company, it is clear that Mr Shrestha runs the day-to-day operations of the company, and that Mrs Shrestha has a limited role. Mr Shrestha therefore gave evidence about the operations of C&G, and I was satisfied he was authorised to act on its behalf. The hearing was adjourned on several occasions to give the applicant the opportunity to present further evidence and to obtain legal representation. A resumed hearing proceeded on 22 July 2022 and the Tribunal received oral evidence from Mr Chij Kumar Shrestha, and Ms Asmita Shahi. Mr Rajan Shahi was also present at the hearing. The Tribunal hearings were in person and conducted with the assistance of an interpreter in the Nepali and English languages.

7. In the matter of C&G (matter no. 1835542), I found that C&G met all of the requirements for approval of the nomination in respect of Ms Asmita Shahi. I therefore set aside the decision not to approve the nomination of C&G and substituted a decision that the nomination is approved.

8. For the following reasons, I have decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether Ms Asmita Shahi meets the requirements of clause 482.212(1) of Schedule 2 to the Regulations.

10. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a nominee who was an approved work sponsor at the time of approval, and the nomination has not ceased.

11. Given my findings and orders in matter number 1835542, I am satisfied that Ms Asmita Shahi meets the requirements of clause 482.212(1) of Schedule 2 to the Regulations.

12. Even though the delegate did not consider this, I have considered the question of whether Ms Shahi also meets the requirements of clause 482.212(2), which requires that the applicant’s intention to perform the nominated occupation is genuine and that the position associated with the nominated occupation is genuine. Based on the evidence given at the hearing by the general manager of C&G, Mr Kumar Shrestha, and Ms Asmita Shahi and my findings in matter number 1835542 to the effect that I am satisfied the position is genuine, I am also satisfied that Ms Asmita Shahi meets the requirements of clause 482.212(2).

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

14. As the Tribunal has found that the applicant satisfies clauses 482.212(1) and (2), it is appropriate that the secondary applicant’s application is also reconsidered by the Department by reference to the outcome of the primary applicant’s application.

    decision

15. The Tribunal remits the applications for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the first named applicant meets clauses 482.212(1) and (2) of Schedule 2 to the Regulations.

    J.L Redfern PSM
    Deputy President