Essale (Migration)

[2024] AATA 1627

Essale (Migration) [2024] AATA 1627 (29 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Husein Matar Essale

REPRESENTATIVE:  Ms Tina Masrour

CASE NUMBER:  2112281

HOME AFFAIRS REFERENCE(S):          BCC2021/1210050

MEMBER:C. Packer

DATE:29 May 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 482.242(a) of Schedule 2 to the Regulations

Statement made on 29 May 2024 at 3.20pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Labour Agreement stream – Personal Care Assistant – work experience in the nominated occupation or related field for at least 2 years – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 482.242

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 9 September 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 applied for the visa on 8 June 2021. 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 Labour Agreement stream to work in the nominated occupation of Personal Care Assistant 423313.

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 482.242 of Schedule 2 to the Regulations because the delegate found the applicant has 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

6. In this case, the applicant has applied for the grant of a Temporary Skill Shortage (Labour Agreement) (subclass 482) visa on the basis that they have been nominated for the position of Personal Care Assistant - 423313 in the Labour Agreement stream by their sponsor Concept Care Disability Solutions Pty Ltd.

7. Clause 482.242 requires that:

   Either:
   (a) the applicant has worked in the nominated occupation or a related field for at least 2
   years; or

   (b) the Minister considers that it is reasonable in the circumstances to disregard
   paragraph (a).

8. In the application, the applicant provided his employment history:

   ·01 December 2011 – 01 December 2013 – Volunteer at Jordan Supporters – Jordan

   ·01 May 2013 – 01 October 2015 – Volunteer at Jordan HomeLand Forearms Society – Jordan

   ·18 Nov 2018 – 11 Apr 2019 – Disability Support Worker at Enable Care & Assist Solutions Pty Ltd – Australia

   ·12 April 2019 – Present – Disability Support Worker at Concept Care – Australia

9. However, the delegate found that only work experience accrued in the past 5 years should be accepted, due to policy considerations.

10. In April 2024 the applicant provided documents and information including:

    ·A letter dated 3 April 2024 from Director- Operations of ConceptCare

    ·Contract of employment signed 26/8/2022, and list of duties

    ·Selection of applicant’s bank statements that show salary paid

    ·Selection of payslips 29/9/2021, 2/3/2022, 14/9/2022, 1/3/2023, 14/9/2023, 14/3/2024

    ·Super payments to 2024

    ·ATO Notice of assessment 2021 ($42,821), 2022 ($66,592) and 2023 ($104,110).

11. The letter dated 3 April 2024 from Director- Operations of ConceptCare states in part:

    Please accept this letter as confirmation of employment and ongoing sponsorship
    nomination for Mohammad Essale.
    Mohammad has been employed with Concept Care Disability Solutions Pty Ltd (ABN 86
    632 485 860) as a disability support worker commencing on 12 April 2019. Mohammad was
    initially employed on a casual basis however is now employed on a full time basis and
    has been since 3 June 2021.
    Mohammad’s duties in this position are as follows:
     Personal Care
     Community Access
     Domestic Assistance
     Manual Handling
     Capacity Building
     Assistance will activities of daily living
    During his tenure with Concept Care, Mohammad has proven to be a highly reliable and
    competent Disability Support Worker. He has consistently exhibited a strong commitment
    to providing quality care and support to individuals with disabilities. His compassion,
    patience, and excellent interpersonal skills have made a significant positive impact on the well-being of the individuals under his care.

12. In sum, the information before the Tribunal satisfies it that the applicant has worked in Australia as a Personal Care Assistant - 423313:

    ·12 April 2019 to 2 June 2021

    ·3 June 2021 to April 2024 (date of letter)

13. The applicant has therefore worked in the nominated occupation or a related field for at least 2 years. For these reasons cl 482.242(a) is met.

    Conclusion

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

    DECISION

15. 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 482.242(a) of Schedule 2 to the Regulations

    C. Packer
    Member