Wijemanna (Migration)

[2023] AATA 2649

Wijemanna (Migration) [2023] AATA 2649 (1 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Danushka Sagara Wijemanna

VISA APPLICANT:  Mr Danushka Sagara Wijemanna

REPRESENTATIVE:  Mr M Shamraiz Mehdi (MARN: 1465452)

CASE NUMBER:  2307926

HOME AFFAIRS REFERENCE(S):          BCC2023/2211302

MEMBER:De-Anne Kelly

DATE:1 August 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 482 visa:

·cl 482.217(1) of Schedule 2 to the Regulations.

Statement made on 01 August 2023 at 1:13pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) – Subclass 482 (Temporary Skill Shortage) – medium-term stream – carpenter – character test – old and incomplete police clearance from home country provided to department – comprehensive clearance covering relevant times provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.217(1), Schedule 4, criterion 4001

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 19 May 2023 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 applicant applied for the visa on 9 April 2023. 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Carpenter.

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 482.217 (1) of Schedule 2 to the Regulations because the applicant was required to satisfy the character test and failed to provide a Form 80 and Sri Lankan Police Clearance.

4. The review applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant satisfies cl 482.217(1) which provides.

   482.217 

   (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4007, 4010, 4013, 4014, 4020 and 4021.

   PART 1—Public Interest Criteria [PIC]  - 4001

   Either: 

   (a)  the person satisfies the Minister that the person passes the character test; or  

   (b)  the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or 

   (c)  the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or 

   (d)  the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test

7. The applicant did provide a Sri Lankan police clearance however it only covered the period up to 2009 and was incomplete and the Tribunal requested and received a comprehensive police clearance covering the periods of time the applicant was resident in Sri Lanka. A form 80 was also provided and the Tribunal finds that the applicant has satisfied the character test PIC 4001 and cl 482.217(1).

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

   DECISION

9. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 482 visa:

   ·cl 482.217(1) of Schedule 2 to the Regulations.

   De-Anne Kelly
   Member