Staunton (Migration)

[2024] AATA 2795

Staunton (Migration) [2024] AATA 2795 (31 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Andrew

Patrick Staunton

Ms Ciara Marie Niland

REPRESENTATIVE:  Mr Mitchell Noel Kelly (MARN: 1281581)

CASE NUMBER:  2202135

HOME AFFAIRS REFERENCE(S):          BCC2021/1547937

MEMBER:Peter Emmerton

DATE:31 July 2024

PLACE OF DECISION:  Adelaide

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 of Schedule 2 to the Regulations

Statement made on 31 July 2024 at 12:19pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – carpenter – subject of approved position nomination – refusal of related nomination application set aside in separate review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), r 2.75, Schedule 2, 482.212(1)

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 15 February 2022 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 9 August 2021. 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 Carpenter, ANZSCO 331212, Skill level 3.

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 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 Ormond Construction Pty Ltd was an approved Standard Business Sponsor. Their current sponsorship is valid until 17 January 2029. 

9. On 21 July 2021 the nominator, Ormond Construction Pty Ltd applied to sponsor the visa applicant for a Temporary Skill Shortage Subclass 482 Visa.

10. On 12 January 2022 the nominator’s application was refused.

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

12. On 31 July 2024 the Tribunal overturned the delegate’s 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 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 of Schedule 2 to the Regulations

    Peter Emmerton
    Member