SIENI (Migration)

[2023] AATA 2592

SIENI (Migration) [2023] AATA 2592 (19 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Oey Oktavia SIENI

REPRESENTATIVE:  Mr Eddy ERNY (MARN: 0323211)

CASE NUMBER:  1933829

HOME AFFAIRS REFERENCE(S): BCC2019/4702581 BCC20194702581

MEMBER:Mary Sheargold

DATE:19 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.212(1) of Schedule 2 to the Regulations.

Statement made on 19 July 2023 at 2:17pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of External Auditor – nomination approved upon review – 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 18 November 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 September 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of External Auditor.

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 the nomination application made by Accounts By Design Pty Ltd for the position of External Auditor was not approved.

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 applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

5. The applicant was 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).

   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 applicant’s employer, Accounts By Design Pty Ltd, had its nomination for approval of the position of External Auditor made in respect of the applicant refused by the Department.  The nominator sought review of the refusal decision, and on 19 July 2023, the Tribunal set aside the Department’s decision and substituted a decision to approve Accounts By Design Pty Ltd’s nomination.

10. Accordingly, based on the evidence before it (including the Departmental file), the Tribunal is satisfied that:

    a.the nomination identified in the visa application is approved; and

    b.it was made by Accounts By Design Pty Ltd, which is an approved standard business sponsor until 2 August 2024; and

    c.the nomination has not ceased.

11. Therefore, the Tribunal finds that the requirements of cl 482.212(1) are met.

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 application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.212(1) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member