Song (Migration)

[2023] AATA 4330

Song (Migration) [2023] AATA 4330 (18 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Myoung Song

REPRESENTATIVE:  Mr Arthur Vasilopoulos (MARN: 0002668)

CASE NUMBER:  2110245

HOME AFFAIRS REFERENCE(S):          BCC2020/2875450

MEMBER:Peter Emmerton

DATE:18 December 2023

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations

Statement made on 18 December 2023 at 11:04am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Chef – nomination approved upon review – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 140
Migration Regulations 1994, Schedule 2, cl 482.212; r 2.75

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 9 August 2021 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 23 December 2020. 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 Chef, ANZSCO 351311, Skill level 2.

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 was not approved.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the nomination is approved.

   Requirement for an approved nomination

7. 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.

8. At the time of application, the nominator Sushi Junction Mosman Pty Ltd was an approved Standard Business Sponsor. Their current sponsorship is valid until 5 March 2026. 

9. On 23 December 2020 the nominator, Sushi Junction Mosman Pty Ltd applied to sponsor the visa applicant for a Temporary Skill Shortage Subclass 482 Visa.

10. On 8 July 2021 the nominators application was refused.

11. Both the nominator and the visa applicant applied to the Administrative Appeals Tribunal to review the decisions.

12. On 18 December 2023 the Tribunal overturned the delegates decision and approved the nomination related to this visa.

13. The Tribunal is satisfied that each of the following applies:

    (a)  the nomination identified in the application has been approved under section 140GB of the Act;

    (b)  the person who made the nomination was an approved work sponsor at the time the nomination was approved;

    (c)  the approval of the nomination has not ceased under regulation 2.75.

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

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

    DECISION

16. 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 of Schedule 2 to the Regulations

    Peter Emmerton
    Member