Yiap (Migration)

[2024] AATA 691

Yiap (Migration) [2024] AATA 691 (5 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Angie Ling Yiap

REPRESENTATIVE:  Mr Chit Thian Chua

CASE NUMBER:  2106389

HOME AFFAIRS REFERENCE(S):          BCC2020/1429022

MEMBER:Antonio Dronjic

DATE:5 February 2024

PLACE OF DECISION:  Melbourne

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.

Statement made on 05 February 2024 at 11:28am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Medium-term stream – Accountant – Tribunal set aside the Department’s decision and substituted a decision that the nomination be approved – approved standard business sponsor – approved nomination – decision under review remitted    

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.75, 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 12 May 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 24 April 2020. 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 Accountant.

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 the nomination application lodged by the applicant’s employer, CBS International Trading Co. Pty Ltd was refused by the Department.

4. The applicant applied to the Tribunal on 13 May 2021 for review of the delegate’s decision. 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 section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

5. 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.

6. On 23 February 2021, the Department refused the nomination application lodged by the applicant’s employer, CBS International Trading Co. Pty Ltd. The nominated occupation was Accountant.

7. On 16 March 2021, CBS International Trading Co. Pty Ltd applied to this Tribunal for review of the Department’s decision to refuse the nomination application.

8. On 31 January 2024, the Tribunal set aside the primary decision and substituted it with its decision that the nomination is approved.

9. CBS International Trading Co. Pty Ltd is currently an approved work sponsor. The representative provided the Tribunal with a copy of the Department's notification to the Company of its approval as a standard business sponsor until 23 March 2025. The Tribunal is satisfied that the approval of the nomination has not ceased under reg. 2.75. Accordingly, the cumulative requirements of cl.482.212(1) of the Regulations are now 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.

    Antonio Dronjic
    Member