Singh (Migration)

[2022] AATA 2164

Singh (Migration) [2022] AATA 2164 (4 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yadwinder Singh

REPRESENTATIVE:  Ms Nina Merlino

CASE NUMBER:  1915090

HOME AFFAIRS REFERENCE(S):          BCC2019/1974764

MEMBER:K. Chapman

DATE:4 June 2022

PLACE OF DECISION:  Brisbane

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 04 June 2022 at 4:19pm

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

LEGISLATION
Migration Act 1958, s 65
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 3 June 2019 to refuse to grant the 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 17 April 2019. In the present matter, the applicant seeks the visa to work in the nominated occupation of Painting Trades Worker (ANZSCO 332211). His position was nominated by Cut and Roll Pty Ltd (‘the nominator’). The nominator operates a painting firm in regional Victoria.

3. At the time of application, 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 Painting Trades Worker (ANZSCO 332211).

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.482.212(1) of Schedule 2 to the Regulations, because the applicant was not the subject of an approved nomination as required. On 12 June 2019, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with his application for review.

5. The applicant appeared by telephone before the Tribunal on 17 May 2022 to give evidence and present arguments. He confirmed that he was comfortable participating in the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages, with the applicant confirming he understood the interpreting service. The applicant was represented by their solicitor (‘the representative’) who attended the review hearing by telephone and was permitted to make submissions.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present 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 it has not ceased.

9. The Tribunal notes that the nomination of the applicant for the position of Painting Trades Worker (ANZSCO 332211) by Cut and Roll Pty Ltd (‘the nominator’) was refused by the Department on 3 May 2019. However, on 3 June 2022, the Tribunal set aside the decision not to approve the nomination and substituted a decision that the nomination is approved (see AAT matter 1912286).

10. Following careful consideration of the evidence, the Tribunal is satisfied that the nomination of the applicant in the occupation of Painting Trades Worker (ANZSCO 332211) has been approved under s.140GB of the Act and reg 2.72 of the Regulations. Furthermore, the Tribunal is satisfied that at the time of the aforementioned approval, the nominator was a standard business sponsor. Additionally, the Tribunal is satisfied that the nomination has not ceased.

11. For these reasons the requirements of cl.482.212(1) are satisfied by the applicant.

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.

    K. Chapman
    Member