Atkinson (Migration)

[2021] AATA 4613

Atkinson (Migration) [2021] AATA 4613 (21 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Lea Thomas Atkinson

Ms Megumu Sako

CASE NUMBER:  1828104

HOME AFFAIRS REFERENCE(S):          BCC2018/2536722

MEMBER:Mary Sheargold

DATE:21 September 2021

PLACE OF DECISION:  Melbourne

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:

·cl 482.212(3) of Schedule 2 to the Regulations.

Statement made on 21 September 2021 at 3:54pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Cook – necessary skills, qualifications and experience – Certificate III in Commercial Cookery – tasks performed in role – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 11 September 2018 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 6 July 2018. 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 primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Cook, ANZSCO 351411.

3. The delegate in this case refused to grant the visa on the basis that the first named applicant did not satisfy the requirements of cl 482.212(3) of Schedule 2 to the Regulations because his qualifications and employment background were not commensurate with the indicative skill level specified in the ANZSCO for the nominated occupation.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the first named applicant has the skills, qualifications and employment background to perform the tasks of the nominated occupation.

   Applicant’s skills, qualifications and employment background

8. Clause 482.212(3) requires the applicant to have the skills, qualifications, and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl 482.212(4), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.   The nominated occupation is Cook, ANZSCO 351411.

9. The Tribunal notes that the ANZSCO specifies that the indicative skill level of the occupation of Cook 351411 is commensurate with an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV. It further stipulates that at least 3 years of relevant experience may substitute for a formal qualification.   

10. The Tribunal wrote to the applicants on 3 September 2021 inviting them to provide current information about the first named applicant’s skills, qualifications, and employment background.  The applicants were invited to provide such information by 17 September 2021.  On 10 September 2021, the applicants submitted evidence regarding the first named applicant’s completion of a Certificate III in Commercial Cookery and photographs of him working in his current workplace.  On 17 September 2021, the applicants provided a job description for the first named applicant’s position.  On 21 September 2021, the applicants provided a written reference from the first named applicant’s sponsoring employer, stating he has worked in the nominated position of Cook since February 2017, and detailing the tasks he performs in his role.

11. The Tribunal has carefully considered the documents provided by the applicants in response to its letter, and is satisfied that the first named applicant has the skills, qualifications and employment background to perform the tasks of the nominated occupation of Cook, ANZSCO 351411.  Therefore, the applicant meets the requirements of cl 482.212(3).

12. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa, including in relation to the secondary applicant.

    DECISION

13. 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:

    ·cl 482.212(3) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member