Ottati (Migration)

[2023] AATA 1751

Ottati (Migration) [2023] AATA 1751 (5 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luca Ottati

REPRESENTATIVE:  Ms Rebecca Santaera (MARN: 1173748)

CASE NUMBER:  2307223

HOME AFFAIRS REFERENCE(S):          BCC2023/479633

MEMBER:Amanda Mendes Da Costa

DATE:5 June 2023

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 482.217(1) of Schedule 2 to the Regulations.

Statement made on 5 June 2023 at 9.55am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Chef – character test – statement from an appropriate authority – certificate from the Public Prosecutor in Salerno, Italy – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.217; Schedule 4, PIC 4001

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 11 May 2023 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 January 2023. 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 ANZSCO 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 482.217(1) of Schedule 2 to the Regulations because he did not meet the character requirements of Public Interest Criterion (PIC) 4001.

4. 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 the material before it, pursuant to s.360(2)(a) of the Act.  The Tribunal has considered the information contained in both the Departmental and Tribunal files.

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

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 482.217(1) of Schedule 2 to the Regulations.

8. Clause 482.217(1) requires that the applicant meets the character test requirements contained in PIC 4001.

9. According to the Departmental file, on 18 February 2023 the applicant was requested to provide a statement by an appropriate authority in Italy and Australia that provided evidence about whether or not the applicant has a criminal history.  Although the delegate had received a statement from an appropriate authority in Australia[1], it had not received one from an appropriate authority in Italy by the time the delegate’s decision was made.  The delegate therefore found that the applicant did not satisfy PIC 4001.

   [1] Australian Federal Police certificate which was provided to the Department on 4 April 2023 and shows no disclosable court outcomes in respect of the applicant.

10. On 30 May 2023 the applicant provided the Tribunal with a completed Form 80 (dated 29 May 2023) and two certificates (both dated 17 May 2023) from the Public Prosecutor in Salerno, Italy, which show that there are no pending charges and no criminal records for the applicant.

11. On the evidence before it, the Tribunal finds that the applicant satisfies the character test for the purpose of PIC 4001 and the requirements of cl 482.217(1) are therefore met.

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

    DECISION

13. 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 482.217(1) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member