Teward Zambrano Anez (Migration)

[2022] AATA 1939

Teward Zambrano Anez (Migration) [2022] AATA 1939 (11 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Terry Teward Zambrano Anez

Ms Karla Cristianne Leandro Bezerra

Mr Thierry Ari Zambrano Bezerra

REPRESENTATIVE:  Ms Fernanda Farias (MARN: 1797148)

CASE NUMBER:  1827471

HOME AFFAIRS REFERENCE(S):          BCC2018/1615438

MEMBER:Alison Mercer

DATE:11 May 2022

PLACE OF DECISION:  Melbourne

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(1) of Schedule 2 to the Regulations.

Statement made on 11 May 2022 at 11:28am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Conference and Event Organiser – 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 10 September 2018 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) subclass 482 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 11 April 2018. 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 Short-term stream to work in the nominated occupation of Conference and Event Organiser (ANZSCO code 149311).

3. The delegate in this case 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, which requires that the applicant was the subject of an approved nomination by an approved standard business sponsor, and that that nomination had not ceased. The delegate found that the applicant was not the subject of an approved nomination by his Australian employer, Pride Events Pty Ltd. The delegate also refused to grant subclass 482 visas to the second and third named applicants (the applicant’s wife and son) on the basis that they did not satisfy the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 482 visa, and there was no evidence that they met the primary visa criteria in their own right.

4. The Tribunal received a review application from the applicants on 19 September 2018, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Fernanda De Souza Farias, as their representative and authorised recipient for correspondence.

5. The applicant appeared before the Tribunal on 29 March 2022 by videoconference to give evidence and present arguments.  

6. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

   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. It is not disputed that at the time of the delegate’s decision on 10 September 2018, the nomination of the applicant identified in the visa application, made by his Australian employer, Pride Events Pty Ltd, was not approved, as it had been rejected by the Department on 13 August 2018.

10. However, Pride Events Pty Ltd sought review of the nomination refusal decision with the Tribunal on 31 August 2018, and on 11 May 2022, the Tribunal (as presently constituted) set aside the Department’s decision to refuse its nomination application, and substituted a decision to approve that nomination (see AAT/MRD decision 1825394 of 11 May 2022).

11. The Tribunal has reviewed the Department’s records and is satisfied that Pride Events Pty Ltd is presently an approved standard business sponsor, and that this is valid until 2 May 2023.

12. Accordingly, the Tribunal in this matter is satisfied 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.

13. For these reasons, it finds that the requirements of cl 482.212(1) are met.

14. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa. As the second and third named applicants applied as members of the family unit of the applicant, the outcome of their applications will be determined by the outcome of the applicant’s application upon reconsideration by the Department.

    DECISION

15. 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(1) of Schedule 2 to the Regulations.

    Alison Mercer
    Member