Wu (Migration)

[2024] AATA 573

Wu (Migration) [2024] AATA 573 (21 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shu-wei Wu

REPRESENTATIVE:  Mr Richard Wah Chooi Tan (MARN: 9896875)

CASE NUMBER:  2111708

HOME AFFAIRS REFERENCE(S):          BCC2021/1139572

MEMBER:Susan Hoffman

DATE:21 March 2024

PLACE OF DECISION:  Perth

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;

·cl 482.212(2) of Schedule 2 to the Regulations; and

·cl 482.221 of Schedule 2 to the Regulations.

Statement made on 21 March 2024 at 8:34am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Contract Administrator – subject of an approved nomination – genuine position and intention to perform occupation – worked in the nominated occupation for at least 2 years – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212, 482.221

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 1 September 2021 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 25 May 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 applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Contract Administrator (ANZSCO 511111).

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 of Schedule 2 to the Regulations because the nomination application made by Ms Wu’s sponsor, Dalegrove Holdings Pty Ltd (Dalegrove), was not approved.

4. Dalegrove sought review of the decision by the delegate to refuse to approve their nomination application. The AAT reference for that review is case number 2107910.

5. A combined hearing for case number 2107910 and this matter was held on 14 March 2024. Mr Norman Carey gave evidence and presented arguments on behalf of Dalegrove and Ms Wu gave evidence relevant to both matters. A separate decision statement has been written for case number 2107910.

6. Ms Wu was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The main issue in this case is whether there is an approved nomination in relation to Ms Wu’s visa application.

   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. Dalegrove had submitted a copy of a letter dated 10 March 2020 from the Department which notified it that it had been approved as a standard business sponsor, and this was effective until 10 March 2025.

11. This Tribunal has reviewed the departmental decision to refuse the nomination application and at 8:09 am on 21 March 2024, has set that decision aside, replacing it with a decision to approve the nomination.

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

    Genuine position and intention to perform occupation

13. Clause 482.212(2) requires that the applicant’s intention to perform the nominated occupation is genuine and the position associated with the nominated occupation is genuine.

14. As part of the review of the nomination application decision, the Tribunal considered whether the nominated position of Contract Administrator was genuine.

15. The business operated by Dalegrove is property development. Mr Norman Carey is the owner and managing director of Dalegrove and associated entities. Mr Carey’s evidence included that over the last two to three years, he has been in the process of scaling up his business, due to four significant property development projects in Perth being undertaken on land which he owns, as per the following table.

Project location	Description	Value
Woodvale Medical & Professional Centre, Whitfords Avenue, Woodvale	3 storey & basement carparking integrated medical and professional centres	$32 million
MetroOne Apartments, Bank Street, East Victoria Park	14 storey and basement carparking, 85 apartments with ground floor retail	$57 million
Warwick Quarter Apartments. Corner of Ellersdale and Dugdale Street, Warwick	7 apartment buildings from 7 to 25 storeys with basement carparking. 1,043 apartments with ground floor retail	$745 million
Rosemount Apartments, Fitzgerald Street, North Perth	3 storey & basement carparking, 15 apartments	$11 million

1. It was submitted that these projects will require employing a further 200 workers, including two more full-time contract administrators.

2. Given the scale of the projects underway and the nature of the business, the Tribunal is satisfied that the position of Contract Administrator is genuine and would be a full-time position.

3. Based on her visa application form, Miss Wu was employed by Dalegrove as a Contract Administrator from 1 July 2017 to 28 May 2020 and then 16 October 2020. She still works for them.

4. Based on her work history and the evidence given at the combined hearing which she attended, the Tribunal is satisfied that Ms Wu’s intention to perform the nominated occupation is genuine. Ms Wu spoke about her role within the business which included dealing with overseas suppliers and local contractors where her language skills are of particular value.

5. For these reasons the requirements of cl 482.212(2) are met.

   Requirement to have worked for at least 2 years

6. Clause 482.221 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years.

7. As noted above, Ms Wu has worked in the nominated occupation from 1 July 2017 to 28 May 2020 and then from 16 October 2020 to the present time.

8. The Tribunal is therefore satisfied that Ms Wu has worked in the nominated occupation or a related field for at least 2 years.

9. For these reasons, cl 482.221 is met.

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

    DECISION

11. 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;

    ·cl 482.212(2) of Schedule 2 to the Regulations; and

    ·cl 482.221 of Schedule 2 to the Regulations.

    Susan Hoffman
    Member