Uzun (Migration)

[2022] AATA 4167

Uzun (Migration) [2022] AATA 4167 (11 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eser Uzun

REPRESENTATIVE:  Ms  Namhee Ko (MARN: 9903942)

CASE NUMBER:  1922847

HOME AFFAIRS REFERENCE(S):          BCC2019/3135874

MEMBER:Alan McMurran

DATE:11 October 2022

PLACE OF DECISION:  Sydney

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) of Schedule 2 to the Regulations;

Statement made on 11 October 2022 at 6:01pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Wall and Floor Tiler –approved standard business sponsor –approved nomination – decision under review remitted 

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, r 2.75, 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 31 July 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 visa applicant, Eser Uzun , is a 35-year-old citizen of the Republic of Turkey (“the nominee”) who has been nominated by the sponsor, Sydney Waterproofing Company Pty Ltd. to work In the nominated occupation of Wall and Floor Tiler (ANZSCO 333411).

3. The nominee applied for the visa on 21 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 nominee is seeking the visa in the Medium-term stream to work in the nominated occupation.

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 by the sponsor had been refused.

5. The nominee appeared before the Tribunal on 7 October 2022 in a combined hearing with the review of the refusal of the nomination[1]. The nominee appeared in person, and the sponsor appeared by its authorised officer, Andrew Cutajar, to give evidence and present arguments. The hearing was conducted by video and in accordance with the Tribunal’s current practice directions. Both parties appearing indicated they were ready to proceed and did not require an adjournment or further time to make submissions.

   [1] Tribunal case 1918871

6. The applicant was represented in relation to the review. The representative also attended the hearing and made submissions.

7. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant is the subject of an approved nomination.

   Requirement for an approved nomination

9. 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.

10. On 11 October 2022, following the combined hearing, the Tribunal made a decision setting aside the decision not to approve the nomination and substituting a decision that the nomination is approved.

11. The Tribunal finds therefore that the nomination identified in the application has been approved under s.140GB of the Act.

12. The Tribunal further finds on the available information that the person who made the nomination was an approved work sponsor at the time the nomination was approved, and the approval of the nomination has not ceased under regulation 2.75.

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

    Conclusion

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

    decision

15. 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) of Schedule 2 to the Regulations;

    Alan McMurran
    Member