Walsh (Migration)

[2021] AATA 2395

Walsh (Migration) [2021] AATA 2395 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Jamie Walsh

Miss Faye Brid Carroll Byrne

CASE NUMBER:  1822667

HOME AFFAIRS REFERENCE(S):          BCC2018/2151359

MEMBER:Alison Mercer

DATE:12 May 2021

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.

Statement made on 12 May 2021 at 2.30pm

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

LEGISLATION
Migration Act 1958, ss 65, 359
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 3 August 2018 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 18 May 2018. 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 Fitter (General) (ANZSCO code 323211).

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 because the first named applicant was not the subject of an approved nomination by his Australian employer, Hydraulink Pty Ltd. The delegate also refused to grant the second named applicant (the partner of the first named applicant) a subclass 482 visa as she did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 482 visa.

4. The Tribunal received a review application from the applicants on 6 August 2018, which was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Ms Jayme Hallam, as their representative and authorised recipient for correspondence.

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

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 nomination21

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 Tribunal notes that the first named applicant’s employer, Hydraulink Pty Ltd, had its nomination of the first named applicant refused by the Department on 4 July 2018. The company sought review of the refusal decision, and on 12 May 2021, the Tribunal set aside the Department’s decision and substituted a decision to approve Hydraulink Pty Ltd’s nomination (see AAT/MRD decision 1821525 of 12 May 2021).

9. Accordingly, based on its own and the Department’s records, the Tribunal is satisfied that:

   ·the nomination identified in the visa application is approved;

   ·it was made by Hydraulink Pty Ltd, which is an approved standard business sponsor, valid until 10 July 2022; and

   ·the nomination has not ceased.

10. For these reasons, the Tribunal finds that the requirements of cl 482.212(1) are met by the first named applicant.

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

12. 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.

    Alison Mercer
    Member