Banatao (Migration)

[2022] AATA 1723

Banatao (Migration) [2022] AATA 1723 (2 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jay Robert Sudaypan Banatao

REPRESENTATIVE:  Miss Kamala Devi Reena Boyer (MARN: 1382849)

CASE NUMBER:  1835876

HOME AFFAIRS REFERENCE(S):          BCC2018/4669213

MEMBER:Nicola Findson

DATE:2 June 2022

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(3) of Schedule 2 to the Regulations.

Statement made on 02 June 2022 at 12:49pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Cook – skills, qualifications and employment background – Certificate IV in Commercial Cookery – Diploma of Hospitality – relevant work experience – 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 3 December 2018 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 October 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 applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Cook.

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(3) of Schedule 2 to the Regulations, because the delegate was not satisfied that there was sufficient evidence before him to demonstrate the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

4. The applicant was represented in relation to the review.

5. 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 on the basis of material provided to it during the review process, pursuant to s.360(2)(a) of the Act.  

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 applicant meets the requirements of cl.482.212(3).

   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.

9. In considering whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, the Tribunal has had regard to the Australian and New Zealand Standard Classification of Occupations (ANZSCO).  The ANZSCO describes that a Cook in Australia, has a level of skill commensurate with the qualifications and experience as follows:

   3514 Cooks

   Cooks prepare, season and cook food in a dining or catering establishment.

   Indicative Skill Level:

   In Australia:

   ·     AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

   …

   
   At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

10. The Tribunal has considered the material contained on the Departmental file.  In his visa application the applicant outlines that he completed a Certificate IV in Commercial Cookery at TAFE Western Australia on 26 June 2016 as well as a Diploma of Hospitality at the Kingston International College in Western Australia on 28 February 2017.  The applicant provided copies of these qualifications to the Department, in support of his application.

11. In addition, in his application, the applicant declared that he had worked in positions related to the nominated occupation: for the ‘Deckchair Café’ between 12 February 2016 and April 2016, on a part time basis; for the ‘Fiorita Deli, Café & Restaurant’ between 29 March 2017 and 28 February 2018, full-time; and for his prospective sponsoring employer (SBR Management Pty Ltd, trading as ‘Mantarays Ningaloo Beach Resort’), on a full-time basis, since 14 March 2018.

12. The Tribunal has also considered, and accepts, information provided by the applicant during the review process (including payslips) which confirms that the applicant has continued to work for SBR Management Pty Ltd, as a Cook, since the Department refused to grant his visa, well over 3 years ago.

13. The Tribunal is satisfied, on the basis of the evidence before it, that the applicant holds a Certificate IV in Commercial Cookery from an Australian education provider, being the requisite level of qualification for a Cook according to ANZSCO (Skill Level 3). The Tribunal observes that the applicant also holds a Diploma of Hospitality, which exceeds the requisite formal qualification for a Cook, according to ANZSCO.

14. The Tribunal also notes that in addition to the experience gained by the applicant working in positions related to the nomination occupation, at the ‘DeckChair Café’ as well as the ‘Fiorita Deli, Café & Restaurant’, he now has experience working as a Cook for SBR Management Pty Ltd, for well over 4 years.

15. The Tribunal is satisfied that there is clear evidence before it that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

16. For these reasons the applicant meets the requirements of cl 482.212(3).

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

    DECISION

18. 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(3) of Schedule 2 to the Regulations.

    Nicola Findson
    Member