Tomiska (Migration)

[2023] AATA 1608

Tomiska (Migration) [2023] AATA 1608 (31 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lukas Tomiska

REPRESENTATIVE:  Mr Martin Ernest Udall

CASE NUMBER:  1934907

HOME AFFAIRS REFERENCE(S):          BCC2019/2903704

MEMBER:C. Packer

DATE:31 May 2023

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 following criteria for a Subclass 482 visa:

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

Statement made on 31 May 2023 at 12.58pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – nomination approved upon review – 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 23 October 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 6 June 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 applicant is seeking the visa in the Medium-term stream.

3. The applicant was represented in relation to the review.

4. 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

5. 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.

6. On 30 May 2023 in case number 1928829 the Tribunal set aside the decision not to approve the nomination by Perfect Contracting Pty Ltd and substituted a decision that the nomination is approved. For these reasons the requirements of cl 482.212(1)(a) are met.

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

   DECISION

8. 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)(a) of Schedule 2 to the Regulations

   C. Packer
   Member