Sidhu (Migration)

[2022] AATA 2168

Sidhu (Migration) [2022] AATA 2168 (2 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Raghvir Singh Sidhu

Mrs Ramandeep Kaur

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  1906468

HOME AFFAIRS REFERENCE(S):          BCC2018/5863249

MEMBER:Amanda Mendes Da Costa

DATE:2 June 2022

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 that she is a member of the family unit of a person who has met the primary criteria for the grant of the visa.

Statement made on 2 June 2022 at 9.18am

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Painting Trades Worker –approved standard business sponsor –approved nomination – decision under review remitted 

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 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 11 March 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 28 December 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 primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Painting Trades Worker ANZSCO 332211.

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 of Schedule 2 to the Regulations because the nomination identified in the visa application was not approved.

4. On the basis of the material in both the Department’s and Tribunal’s files, and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour.  It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.

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 first named applicant (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 the nominator Real Shade Painters Pty Ltd (the nominator) made a nomination application in relation to a position for the applicant.  This application was refused by a delegate of the Minister.  The nominator subsequently lodged an application for review of that decision with this Tribunal and on 1 June 2022 the Tribunals set aside the decision of the delegate not to grant the nomination application and substituted a decision to approve the nomination application.

10. Based on the evidence before it, the Tribunal is satisfied 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.

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 application of the second named applicant should be reconsidered on the basis that the applicant meets the primary criteria for the grant of a Temporary Skill Shortage (Class GK) 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 is a member of the family unit of a person who meets the primary criteria for the grant of a Temporary Skill Shortage (Class GK) visa.

    Amanda Mendes Da Costa
    Member