Zhong (Migration)

[2022] AATA 4621

Zhong (Migration) [2022] AATA 4621 (26 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jingwen Zhong
Mr Pak Lun Wong

REPRESENTATIVE:  Ms Rao Minjia (MARN: 1464628)

CASE NUMBER:  1912044

HOME AFFAIRS REFERENCE(S):          BCC2019/1527793

MEMBER:Peter Newton SC

DATE AND TIME OF

ORAL DECISION AND REASONS:         26 October 2022 at 2:00 pm (NSW time)

DATE OF WRITTEN RECORD:                22 November 2022

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: - clause 482.212 of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 22 November 2022 at 3:42pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – occupation of graphic designer – nomination approved upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 140
Migration Regulations 1994, Schedule 2, cl 482.212; rr 2.72, 2.75

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 30 April 2019 (Department’s Decision) refusing to grant the visa applicants GK – Temporary Skill Shortage (class GK) Subclass 482 visas under the Migration Act 1958 (Cth) (Act) and reg 2.72 of the Migration Regulations 1994 (Regulations).

2. At the hearing on 26 October 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicants applied for the visas on 26 March 2019. At the 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 (Regulations).

4. 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.

5. In this case the primary visa applicant (applicant) is seeking the visa in the short-term stream to work in a nominated occupation of graphic designer.

6. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of clause 482.212 of Schedule 2 to the Regulations because the respective sponsoring employer, Synaland Pty Ltd (Synaland), did not have an approved nomination in place for the applicant. 

7. The applicant appeared at a hearing before the Tribunal by telephone on 26 October 2022 to give evidence and present arguments.  The applicants were represented in relation to the review by Ms Rao who also appeared at the hearing and made submissions.

8. The application for review was heard concurrently with an application for review by Synaland against the decision of the Department of Home Affairs refusing the nomination of the applicant for a Temporary Skill Shortage visa.  Evidence on one application was evidence on the other. 

9. For the following reasons, the Tribunal has decided to remit the applications for the Temporary Skill Shortage (Class GK) visas for reconsideration with the direction set out below.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the nomination identified in the application for the Temporary Skill Shortage (short term) visas by the applicant and her husband has been approved under section 104GB of the Act and has not ceased under regulation 2.75.

11. 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.

12. As stated, this application was heard concurrently with the application by Synaland against the decision by the Department of Home Affairs refusing its nomination for a Temporary Skill Shortage visa.  Prior to delivering this statement of decisions and reasons, the Tribunal delivered a statement of decisions and reasons on the application for review by Synaland for review of the decision by the Department of Home Affairs refusing its application for approval of the nomination.

13. In that decision, the Tribunal set aside the decision not to approve the nomination and substituted a decision where the nomination is approved.  In arriving at that decision, the Tribunal was satisfied that the nominator is an approved work sponsor.

14. There is evidence that on 19 March 2019 the Department of Home Affairs notified Synaland Pty Ltd by a letter that its sponsorship application had been approved and Synaland was issued with a standard business sponsorship - AUS business, a sponsorship which is effective until 19 March 2024.

15. Neither the Tribunal’s decision approving the nomination and the nominator’s standard business sponsorship has ceased. For these reasons the requirements of clause 482.212(1) are met.

16. In arriving at its decisions refusing to grant the visa applicants GK – Temporary Skill Shortage (Class GK) Subclass 482 visas, the Department did not consider any of the other criteria for the assessment of the applications for the Temporary Skill Shortage (class GK) visas.  In the circumstances, as the Tribunal is satisfied the nominating employer is a work sponsor and the nomination is approved, the appropriate course is to remit the applications to the Minister to consider the remaining criteria for the visas.

    DECISION

17. 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:- clause 482.212 of schedule 2 to the Regulations.

    Peter Newton SC
    Member