Naik (Migration)

[2021] AATA 4965

Naik (Migration) [2021] AATA 4965 (9 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Shyamal Moghabhai Naik

Mrs Darshika Shyamal Naik

Mr Krish Shyamal Naik

CASE NUMBER:  1901219

HOME AFFAIRS REFERENCE(S): BCC2018/3381487 BCC20183381487

MEMBER:Warren Stooke AM

DATE:9 December 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 and second named applicants meet the following criteria for a Subclass 482 visa:

·cl 482.212 of Schedule 2 to the Regulations; and

·cl 482.311 of Schedule 2 to the Regulations.

Statement made on 9 December 2021 at 6:28pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Chef – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212, 482.311

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 15 November 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 September 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 Medium-term stream to work in the nominated occupation of Chef – ANZSCO Code: 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 482.212 of Schedule 2 to the Regulations because the sponsoring business did not have a nomination in place for the applicant.

4. The applicants appeared before the Tribunal on 3 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Tetlow, the Finance and HR Manager for the Sandringham Yacht Club Inc.  

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 applicant has an approved standard business sponsor for the occupation of Chef – ANZSCO Code: 351311.

8. The applicant was granted a Bridging Visa E on 31 January 2019 with condition 8207 that does not permit study.

9. The sponsorship nomination for the applicant and the nominee was approved by the Department of Home Affairs on 11 February 2020 for a 482 Visa Medium Stream for up to 2 years in the nominated occupation of Chef – ANZSCO Code: 351311 on a salary of $63,500.

   Evidence from Nominating Sponsor – Ms Tetlow

10. The nominating sponsor provided the Tribunal with evidence of their Standard Business Sponsor approval notification that was approved on 7 April 2018 and is valid until 7 April 2023.

11. The nominating sponsor stated that the yacht club provides on-the -water activities, together with food and beverage in the club house for members and guests.

12. The nominating sponsor stated that the nominee commenced as a kitchen hand in 2010 and that he subsequently completed a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management in 2018, as a Sus Chef.

13. The Tribunal was provided with evidence that the nominee satisfied the English language test requirements with a PTE score of 57 that was undertaken on 24 June 2016.

14. The nominating sponsor provided evidence that the nominee for the position of Chef – ANZSCO 351311 was assessed by VETASSESS on 26 March 2019, as ‘successful’.

15. The nominating sponsor provided evidence of a contract of employment for the nominee dated 17 February 2020 that included a permanent appointment under the nominated award, the Registered and Licenced Clubs Award 2010, and a salary of $63,500 and 9.5 per cent superannuation paid into the Hostplus superannuation fund.

16. The nominating sponsor stated that the nominee was provided with a Fair Work Information Statement at the time of employment, which is also contained in the employment contract.

17. The nominating sponsor stated the position required an employee that had experience in ordering; planning; preparation of meals; management of costs; supervision of staff; safe handling of food; preparing recipes; keeping the kitchen clean and tidy; and deal with functions, which require the preparation of up to 200 meals at one time.

    Requirement for an approved nomination

18. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

19. On the basis that the nomination of Sandringham Yacht Club Inc for the sponsorship of the applicant in this case was approved in a substitute decision by the Tribunal on 9 December 2021 in Case Matter: 1831486, the applicant has an approved standard business sponsor for the occupation of Chef – ANZSCO Code: 351311.

20. For these reasons the requirements of cl 482.212(1) are met.

21. On the basis that the primary applicant has an approved standard business sponsor, it follows that the secondary applicants are members of a family unit that has met the required criteria.

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 applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first and second named applicants meet the following criteria for a Subclass 482 visa:

    ·cl 482.212 of Schedule 2 to the Regulations; and

    ·cl 482.311 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member