Thind (Migration)

[2022] AATA 4165

Thind (Migration) [2022] AATA 4165 (13 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Karmjit Kaur Thind

REPRESENTATIVE:  Mr Tanveer Singh (MARN: 1173217)

CASE NUMBER:  1918539

HOME AFFAIRS REFERENCE(S):          BCC2019/2352900

MEMBER:Sheridan Lee

DATE:13 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the requirement of cl 482.212(1) of Schedule 2 to the Migration Regulations 1994.

Statement made on 13 October 2022 at 3:41pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Short-term stream – Cook –approved standard business sponsor –approved nomination – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 24 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 applicant applied for the visa on 2 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).

3. 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. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Cook.

4. 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 application made by the applicant’s prospective employer was refused.

5. The applicant was 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

   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. Verma Pty Ltd applied for approval to nominate the applicant on 2 May 2019. The application was refused by a delegate of the Minister for Immigration and the company applied to the Tribunal for a review of that decision.

9. On 4 October 2022, the Tribunal set aside the decision not to approve the nomination and substituted it with a decision that the nomination is approved. Departmental records show that Verma is approved as a work sponsor until 26 April 2026 and the approval has not ceased.

10. For these reasons the requirements of cl 482.212(1) are met. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    decision

11. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the requirement of cl 482.212(1) of Schedule 2 to the Migration Regulations 1994.

    Sheridan Lee - Member