Tondas (Migration)

[2023] AATA 1823

Tondas (Migration) [2023] AATA 1823 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Marco

Tondas

Ms Yaeko Tondas

REPRESENTATIVE:  Mr Hideaki Takahata (MARN: 0325064)

CASE NUMBER:  1922224

HOME AFFAIRS REFERENCE(S):          BCC2019/3112066

MEMBER:Sheridan Aster

DATE:13 June 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 requirements of cl 482.212(1) of Schedule 2 to the Migration Regulations 1994.

Statement made on 13 June 2023 at 4:10pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of Chef – 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 1 August 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 20 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 primary visa applicant (the applicant) is seeking the visa in the Short-term stream.

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 requires that the nomination identified in the application has been approved.

4. The primary applicant appeared before the Tribunal on 9 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer, Ms Kazumi Tanabe.

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

   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. The nomination identified in the visa application was made by Japanese Gourmet Ken Pty Ltd. The company applied to nominate Mr Tondas to work as a cook on 20 June 2019. The application was originally refused by the delegate and the company applied to the Tribunal for merits review of that decision. On 13 June 2023, the Tribunal set aside the decision not to approve the nomination and substituted it with a decision that the nomination is approved.

9. Departmental records show that by Japanese Gourmet Ken was approved is approved as a Standard Business Sponsor from 22 January 2022 to 22 January 2027.

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

12. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, her application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

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

    Sheridan Aster
    Member