Viljoen (Migration)

[2024] AATA 1008

Viljoen (Migration) [2024] AATA 1008 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hendrik

Antonie Frederick Viljoen

Mrs Inge Viljoen
Master Jayeffe

Viljoen

Miss Kihana Viljoen

REPRESENTATIVE:  Mr Andre Pierre Burger (MARN: 9801665)

CASE NUMBER:  2106805

HOME AFFAIRS REFERENCE(S):          BCC2021/413903

MEMBER:Amanda Mendes Da Costa

DATE:5 April 2024

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.

The Tribunal considers that the second named, third named and fourth named applicants meet the secondary requirements for the grant of  Temporary Skill Shortage (Class GK) visas.

Statement made on 5 April 2024 at 8.52am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Farmer (Mixed Livestock) – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 14 May 2021 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 17 March 2021. 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 Medium-term stream to work in the nominated occupation of Farmer (Mixed Livestock) ANZSCO 121317.

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 because he was not the subject of an approved nomination.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant based on the material before it, pursuant to s.360(2)(a) of the Act.

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

7. The issue in this case is whether the applicant meets the requirements of cl 482.212(1) of Schedule 2 to the Regulations.

   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. The Tribunal notes that NIEKERK HOLDINGS PTY LTD (the nominator) made an application for nomination of the position of Farmer (Mixed Livestock) for the applicant. This application was refused by a delegate of the Minister. The nominator subsequently lodged an application with this Tribunal for review of that decision. On 4 April 2024, this Tribunal set aside the delegate’s decision and substituted a decision of its own approving the nomination application.

10. Accordingly, the Tribunal finds 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.

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

12. Based on the above findings, the Tribunal finds that the second named, third named and fourth named applicants meet the secondary requirements for the grant of the visas.

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

    DECISION

14. 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.

15. The Tribunal considers that the second named, third named and fourth named applicants meet the secondary requirements for the grant of Temporary Skill Shortage (Class GK) visas.

    Amanda Mendes Da Costa
    Member