Shujah (Migration)

[2024] AATA 3473

Shujah (Migration) [2024] AATA 3473 (9 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Qasim

Shujah

Ms Zainab Qasim

REPRESENTATIVE:  Mr Wenwei Zheng (MARN: 1570029)

CASE NUMBER:  2206188

HOME AFFAIRS REFERENCE(S):          BCC2022/92116

MEMBER:Amanda Mendes Da Costa

DATE:9 September 2024

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 that the application of the second named applicant should be reconsidered on the basis she meets the secondary requirements for the grant of a Temporary Skill Shortage (Class GK) visa.

Statement made on 9 September 2024 at 11.12am

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

LEGISLATION
Migration Act 1958 (Cth), ss 360(2)(a), 65
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 27 April 2022 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 1 March 2022. 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 to work in the nominated occupation of Accountant (General) ANZSCO 221111.

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 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 based on 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 did not meet the criteria in 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. Departmental and Tribunal records show that Kitchen Food Company Pty Ltd ATF Kitchen Food Company Unit Trust (the nominator) made a nomination application for the position of Accountant (General) ANZSCO 221111, in respect of the applicant. A delegate of the Minister refused to grant that application and the nominator lodged an application for review of the decision with this Tribunal. On 9 September 2024 the Tribunal set aside the delegate’s decision and substituted a decision of its own, approving the nomination application.

10. Accordingly, the Tribunal finds that the nomination in the visa application is approved and that at the time of approval, the nominator was an approved work sponsor, and the nomination has not ceased.

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

12. Given its findings regarding the applicant, the Tribunal finds that the second named applicant meets the secondary requirements for the grant of the visa.

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

    DECISION

14. 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.

15. The Tribunal considers that the application of the second named applicant should be reconsidered on the basis that she meets the secondary requirements for the grant of a  Temporary Skill Shortage (Class GK) visa.

    Amanda Mendes Da Costa
    Member