Cung (Migration)

[2024] AATA 1622

Cung (Migration) [2024] AATA 1622 (19 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tuan Dat Cung

REPRESENTATIVE:  Mrs Yan Yu (MARN: 0635581)

CASE NUMBER:  2215792

HOME AFFAIRS REFERENCE(S):          BCC2022/4057938

MEMBER:C. Packer

DATE:19 April 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 482.231 of Schedule 2 to the Regulations

Statement made on 19 April 2024 at 6.52pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Medium-term stream – Chef – applicant has worked in the nominated occupation for at least 2 years – decision under review remitted     

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.231

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 18 October 2022 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 28 September 2022. 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 Chef – 351311.

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 482.231 of Schedule 2 to the Regulations because the delegate found the applicant had not worked in the nominated occupation or a related field for at least 2 years.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement to have worked for at least 2 years

6. Clause 482.231 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years.

7. The applicant provided documents and information to the Tribunal including:

   ·Payslips between 12/4/2022 and 7/4/2024

   ·Reference dated 8 April 2024, that states the applicant had worked as a chef from June 2021. Following interruptions in the covid years, he had certainly worked full-time at least from April 2022 to April 2024.

   ·Income statement ATO 2023, $63,814 plus cashout of leave

   ·Income statement ATO 2022, $27,960

   ·Super payments

8. In sum, based on the material before it, the Tribunal is satisfied that the applicant worked as a chef from June 2021. It is uncertain how much experience he gained as a chef in 2021 and early 2022 due to interruptions in the covid years. Nonetheless, the Tribunal accepts the applicant has worked full-time as a chef from April 2022 to the present. The reference of 8 April 2024 set out the duties of the position that are those of a chef.

9. The Tribunal is satisfied the applicant has worked as a chef at least from April 2022 to April 2024. The Tribunal finds, therefore, that the applicant has worked in the nominated occupation or a related field for at least 2 years.

10. For these reasons, cl 482.231 is met.

    Conclusion

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

    DECISION

12. 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 482.231 of Schedule 2 to the Regulations

    C. Packer
    Member