Kim (Migration)

[2023] AATA 2208

Kim (Migration) [2023] AATA 2208 (7 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahsung Kim

REPRESENTATIVE:  Mr Xiangfei Ye (MARN: 1684608)

CASE NUMBER:  2105829

HOME AFFAIRS REFERENCE(S):          BCC2021/520112

MEMBER:Alan McMurran

DATE:7 July 2023

PLACE OF DECISION:  Sydney

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; and

Statement made on 07 July 2023 at 4:06pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – skill level and two years’ full-time employment completed in five years before application made – no evidence provided that diploma obtained from third country meets Australian requirement – three years’ relevant experience as alternative – tax and employment documentation provided to tribunal – work in Australia and fourth country –experience as alternative to qualification not limited to past five years – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 482.231

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 4 May 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 16 April 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, Mr Ahsung Kim, a citizen of the Republic of Korea, applied for the visa on 9 April 2021. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage).

3. 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.

4. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Chef (ANZSCO 351311). The nomination for the position by the nominator, Pentad Pty Ltd t/as Samurai Teppanyaki House, was approved by the Department on 22 January 2021. This review concerns only the related visa application for the occupation.

5. 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 applicant had not produced sufficient evidence of having worked in the nominated occupation for the relevant period. The delegate relied on policy considerations and determined the relevant period was for 2 years’ full time employment completed ‘in the past five(5) years’ before lodgement.

6. On 20 June 2023, the applicant was sent an invitation from the Tribunal under s 359(2) of the Act to provide information and using the contact details for the applicant as recorded on the Tribunal’s file. The letter invited the applicant to provide information that he had worked in the occupation for at least two years. The applicant was requested to reply by 4 July 2023. The letter informed the applicant that if the information was not received within the time for giving it, nor any extension of time granted, the applicant would lose any entitlement to appear in the Tribunal to give evidence and present arguments.

7. On 30 June 2023, the Tribunal received a bundle of documents from the applicant which included the applicant’s ATO income statements for the completed financial years from 2019-2023 and evidence of his employment in Japan. The Tribunal is satisfied that on the information now provided, it can make a decision in the applicant’s favour in accordance with s 360(2)(a) of the Act and without a hearing.

8. The applicant was represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant has worked in the nominated occupation or a related field for at least 2 years.

11. The Tribunal has available for consideration the information from the Department’s file which includes details of his employment history as set out in the delegate’s decision, and the information submitted to the Tribunal in response to an invitation to do so.

    Requirement to have worked for at least 2 years

12. Clause 482.231 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years. This was the provision which the delegate found was not met.

13. The ANZSCO description for the occupation describes the role as follows:

    3513 Chefs

    Chefs plan and organise the preparation and cooking of food in dining and catering establishments. Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group.

    Cooks are included in Unit Group 3514 Cooks. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.

    ​​​​​​​Indicative Skill Level:

    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    • AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    In New Zealand:

    • NZQF Diploma (ANZSCO Skill Level 2)

    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.

    Tasks Include:

    • planning menus, estimating food and labour costs, and ordering food supplies
    • monitoring quality of dishes at all stages of preparation and presentation
    • discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
    • demonstrating techniques and advising on cooking procedures
    • preparing and cooking food
    • explaining and enforcing hygiene regulations
    • may select and train staff
    • may freeze and preserve foods

    Occupation:

    • 351311 Chef

    351311 Chef

    Plans and organises the preparation and cooking of food in a dining or catering establishment.

    Skill Level: 2

    Specialisations:

    • Chef de Partie
    • Commis Chef
    • Demi Chef
    • Second Chef
    • Sous Chef

14. The applicant submitted evidence of his qualifications obtained from George Brown College, International Centre, Canada. It reveals the applicant obtained from the College an Ontario College Diploma on 21 April 2017, in the culinary management program, which is a 2 year course over 4 semesters. The applicant had commenced the program according to the record on 1 September 2013. He completed the program over an extended period, in between his compulsory military service spent in South Korea. The Tribunal finds , however, that there is no evidence that the qualification meets the specified ANZSCO Australian requirement for an AQF Associate Degree, Advanced Diploma or Diploma.

15. It is therefore necessary for the applicant in order to meet the indicative skill level for the occupation to demonstrate on the available evidence that he has the ANZSCO requisite minimum for the occupation of three years’ relevant experience. The evidence also needs to demonstrate that he meets the regulation requirement of having worked in a related field for at least 2 years.

16. The applicant described his study and work history in the application, and his recent Tribunal submissions, as follows:

    a.(South) Korean Army – 28 July 2014-12 May 2016 – Training Junior Chef Cook; Full time; (46 months)

    b.Culinary college Diploma (Canada) between 1 September 2013 and 21 April 2017; (not relevant to work experience)

    c.Conrad Osaka restaurant Open Kitchen – Japan – Commis Chef -1 July 2018-16 June 2019- Part time (40 hours per week); (11.5 months)

    d.Pentad Pty Ltd Australia t/as Samurai Teppanyaki House  - commis chef- 7 January 2020-22 March 2020 – Casual (20 hours per week); (not relevant to work experience);

    e.Pentad Pty Ltd Australia t/as Samurai Teppanyaki House  - Chef- July 2020-January 2021 - Part time (30 hours per week); (6 months)

    f.Kazumi Food Australia Pty Ltd – Kitchen Manager then Chef – 1 February 2021-October  2022 - Part time (25 hours per week); (20 months)

    g.Pentad Pty Ltd t/as Samurai Teppanyaki House – Sous chef -October 2022- and continuing - Full time; (9 months)

17. In support of the employment history the applicant has produced his payment history as submitted to the ATO for the relevant periods, a reference from Kazumi Food Australia Pty Ltd dated 31 March 2023, payslips from the nominator showing current ordinary hours worked as at June 2023 full time at 38 hours per week, and a letter from the nominator dated 3 July 2023 certifying to the applicant’s employment history with the nominator and as outlined above. The managing director states:

    “I have listed his employment history as follows:

    3rd October 2021 – Present, Sous Chef, full-time, 38 hours per week.

    20thJuly 2020 – 31st January 2021, Commis Chef, part-time, 30 hours per week. 20th January 2020 – 22nd March 2020, Commis Chef, Casual, 25 hours per week.”

18. The Tribunal accepts that evidence. The applicant has also provided evidence of his work history in Japan, and for the Korean Army. The regulation does not state that the experience is time-limited as suggested by policy to the most recent 5-year period. Taking all the evidence in context in this case, the applicant has been working consistently in the occupation and for related employment as a cook then Chef since he started work in 2013, and on any measure as to time spent, exceeds the regulation requirement of 2 years as well as the ANZSCO specification for the role.

19. In total the available information shows that in the period from 2014 to April 2021, the applicant had relevant Part time and Full time experience exceeding two years, excluding the period of casual employment from January to March 2020. As noted by the delegate in the decision, policy considers relevant work undertaken Part time may also be considered.

20. The Tribunal finds it is satisfied on the available information that the applicant has demonstrated relevant employment in the nominated occupation as a Chef and for at least 2 years. Accordingly the Tribunal finds the applicant has provided sufficient evidence that satisfies the requirement.

21. For these reasons, cl 482.231 is met.

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

    DECISION

23. 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; and

    Alan McMurran
    Member