Stapleton (Migration)

[2022] AATA 3799

Stapleton (Migration) [2022] AATA 3799 (17 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Olivia Stapleton

REPRESENTATIVE:  Mr Christopher Hugh Levingston

CASE NUMBER:  1916799

HOME AFFAIRS REFERENCE(S):          BCC2019/2478525

MEMBER:Alan McMurran

DATE:17 October 2022

PLACE OF DECISION:  Sydney

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; and

Statement made on 17 October 2022 at 9:20am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Customer Service Manager – 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 lodged 26 June 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 20 June 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 visa applicant, Ms Olivia Stapleton, is a citizen of the United Kingdom (“the nominee”), nominated by the sponsor, David Brown Property Services Pty Ltd. Her visa application was refused by the Department on 20 June 2019 for want of an approved nomination.

3. The applicant applied for the visa on 10 May 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.

4. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Customer Service Manager (ANZSCO 149212).

5. 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) Schedule 2 to the Regulations because the nomination by the sponsor had been refused.

6. The applicant appeared before the Tribunal on 14 October 2022 in a combined hearing with the review of the nomination refusal[1], to give evidence and present arguments.

   [1] Tribunal case 1914168

7. The hearing was conducted virtually by video and in accordance with the Tribunal’s current practice directions. Both parties appearing indicated they were ready to proceed and did not require an adjournment or further time to make submissions. The applicant appeared by video from London, and the sponsor appeared by its authorised officer, David Brown (“the director”) from Sydney. The Tribunal received oral evidence from the director and the nominee.

8. The applicant was represented in relation to the review by a solicitor who also attended the hearing from his office and made submissions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant is the subject of an approved nomination.

    Requirement for an approved nomination

11. 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 which approval has not ceased.

12. On 14 October 2022, following a hearing on merits review, the Tribunal decided to set aside the decision not to approve the nomination and substituted a decision that the nomination by David Brown Property Services Pty Ltd  is approved.

13. The Tribunal finds therefore that the nomination identified in the application  has been approved under s.140GB of the Act.

14. The Tribunal further finds on the available information that the person who made the nomination was an approved work sponsor at the time the nomination was approved, and the approval of the nomination has not ceased under regulation 2.75.

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

    Conclusion

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

    decision

17. 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;

    Alan McMurran
    Member