Steffen (Migration)

[2022] AATA 4529

Steffen (Migration) [2022] AATA 4529 (4 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Felipe Martins Steffen

Mrs Luana Facchinetti Steffen

REPRESENTATIVE:  Mr Adam Khaze (MARN: 0960138)

CASE NUMBER:  1919481

HOME AFFAIRS REFERENCE(S):          BCC2019/2439259

MEMBER:Angela Julian-Armitage

DATE:4 November 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant and Mrs Luana Facchinetti Steffen meet the following criteria for a Subclass 482 visa:

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

Statement made on 04 November 2022 at 10:14am

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 1 July 2019 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 8 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. 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 Painting Trades Worker.

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 which required that the nomination identified in the visa application had been approved. The delegate found that the applicant had been advised that the sponsor did not have an approved nomination in place for him.

4. The applicants appeared before the Tribunal on 8 August 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the sponsor’s nomination application. The Tribunal also received oral evidence from the visa applicant and the managing director of the nominating entity, Mr Robin Kazaizan.

5. The applicants were 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 there is an approved nomination.

   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 nomination of the sponsoring entity was approved by this Tribunal on 4 November 2022.

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

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

    decision

12. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant and the secondary applicant, Luana Facchinetti Steffen meet the following criteria for a Subclass 482 visa:

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

    Angela Julian-Armitage
    Member