Zhong (Migration)

[2024] AATA 277

Zhong (Migration) [2024] AATA 277 (16 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yucheng Zhong

REPRESENTATIVE:  Mr Harry Cao (MARN: 0961828)

CASE NUMBER:  2105931

HOME AFFAIRS REFERENCE(S):          BCC2019/93334

MEMBER:Alan McMurran

DATE:16 February 2024

PLACE OF DECISION:  Sydney

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; and

·cl 482.212 of Schedule 2 to the Regulations

Statement made on 16 February 2024 at 9:54am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Café or Restaurant Manager – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 5 May 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 15 April 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, Mr Yucheng Zhong, a citizen of the People’s Republic of China, applied for the visa on 16 January 2020. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage).

3. 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.

4. 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 Café or Restaurant Manager (ANZSCO 141111) for the nominator/sponsor, Jinhui Corporation Pty Ltd.

   Members of the Family Unit

5. On currently available information provided by the applicant’s representative, there are two members of the applicant’s family, his spouse Siyue Dao, and his daughter, Ziqi Zhong who have each made separate visa applications.

6. Those applications are currently being considered and are not being reviewed by this Tribunal. No other information has been made available about those applications.

7. In the case of the applicant’s spouse, Siyue Dao, she was offshore on 16 January 2020 at the time of the applicant’s visa lodgement and the Tribunal has no jurisdiction to consider her as a secondary applicant for this review.

8. Similarly, the child, Ziqi Zhong, was born on 16 April 2020, after lodgement of the application, and no decision has been made to date for any visa application by her.

   Delegate’s decision

9. 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 applicant is not the subject of an approved nomination.

10. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant is the subject of the nomination identified in the application and which has been approved under section 140GB of the Act.  

    Requirement for an approved nomination

13. 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.

14. The Tribunal has had regard to information from the applicant’s departmental file[1], the Tribunal’s case file for this review, and the Tribunal’s file for the sponsor’s review[2], the Act and the Regulations. The Tribunal has also had regard to the applicant’s submissions. In that regard, the only issue considered on this review is whether the applicant’s nomination has been approved.

    [1] BCC201993334

    [2] T case file 2104198

15. On 15 February 2024, the Tribunal made a decision on review, setting aside the decision not to approve the nomination, and substituting a decision that the nomination is approved. Having considered the nomination review outcome, the Tribunal has proceeded to finalise this application for review without the need for a further hearing.

    Summary

16. The information demonstrates and the Tribunal finds that the nomination identified in the application has been approved for the sponsor on 15 February 2024 under section 140GB of the Act and cl 482.212(1)(a) is now met.

17. The Tribunal further finds that the sponsor is an approved work sponsor for the period from 13 January 2023 and which remains current as at the time of the nomination approval. Therefore cl 482.212(1)(b) is met.

18. The Tribunal finds on the available information that the approval of the nomination on 15 February 2024 has not ceased. Therefore cl. 482.212(1)(c) is met.

19. The Tribunal finds that the applicant is now the subject of a nomination identified in the visa application which is now approved, was made by a person who was an approved work sponsor at the time of approval, and which sponsorship has not ceased.

20. For these reasons the requirements of cl 482.212(1) and the whole of cl 482.212 are met.

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

    DECISION

22. 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; and

    ·cl 482.212 of Schedule 2 to the Regulations.

    Alan McMurran
    Member