Warwick (Migration)

[2023] AATA 3684

Warwick (Migration) [2023] AATA 3684 (19 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ryan

Alan Philip Warwick

Ms Ciara Fogarty

REPRESENTATIVE:  Mrs Christine Moh-Bridgland (MARN: 0429283)

CASE NUMBER:  1935117

HOME AFFAIRS REFERENCE(S):          BCC2019/4729693

MEMBER:Namoi Dougall

DATE:19 October 2023

PLACE OF DECISION:  Sydney

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 19 October 2023 at 3:13pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Other Sports Coach or Instructor – Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved – 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 29 November 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 September 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 to work in the nominated occupation of Other Sports Coach or Instructor.

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 Mr Ryan Alan Philip Warwick (the applicant) was not subject to an approved nomination as the nomination application of his sponsoring employer, Rise Fitness Pty Ltd (the nominating business) was not approved on 30 October 2019.

4. The applicant appeared before the Tribunal on 4 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Urmila Bradford, the director of the nominating business.

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 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.

   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. On 20 September 2019, the nominating business lodged with the Department a nomination application in respect of the applicant for the nominated position of Other Sports Coach or Instructor (ANZSCO 452317) which was refused on 30 October 2019. On 19 October 2023, the Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved.

10. On the above, the Tribunal is satisfied that the criterion in cl.482.212(1) are met.

11. The second named applicant applied for the visa on the basis of being a member of the family unit of the primary visa applicant who meets primary criteria. As the Tribunal is remitting the application of the primary visa applicant with a finding that the requirements of cl.482.212(1) have been met, the remaining criteria for the Subclass 482 visa will be considered for all applicants.

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

    DECISION

13. 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.

    Namoi Dougall
    Member