Park (Migration)

[2024] AATA 1618

Park (Migration) [2024] AATA 1618 (22 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jehyung Park

REPRESENTATIVE:  Mr JOHN ANTHONY HOURIGAN (MARN: 0000377)

CASE NUMBER:  2113681

HOME AFFAIRS REFERENCE(S):          BCC2021/1506593

MEMBER:Peter Emmerton

DATE:22 April 2024

PLACE OF DECISION:  Adelaide

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 23 April 2024 at 12:32pm

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 – position remains available to the applicant – 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 22 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 21 July 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 Medium-term stream to work in the nominated occupation of Chef, ANZSCO 351311, Skill level 2.

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 they were not satisfied the applicant had demonstrated they had worked in the nominated occupation 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. The issue in this case is whether the applicant has at least 2 years of experience as a bricklayer.

7. The Tribunal notes the delegate requested additional information at the time they were considering the application as insufficient evidence had been provided to enable them to make a positive assessment. This letter was dated 6 August 2021. No response was received prior to nor after their decision.

   Requirement to have worked for at least 2 years

8. Clause 482.231 of Schedule 2 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years. Further, cl 482.2 specifies that: All criteria must be satisfied at the time the decision is made on the application.

9. The Tribunal has been provided with copies of the detailed Pay Slips dated from 27 October 2021 until 10 March 2024. They clearly indicate hours worked, the weekly rate and the hourly rate paid for a full-time Chef role. They in addition provide the applicant’s Superannuation paid and their periods of over-time, penalty rates and annual holiday accrual. The Tribunal has formed the clear view that the applicant has worked full-time for approximately 2.5 years based on this documentation alone. The Tribunal notes that full-time work is not specifically stipulated in the legislation but again notes that the workload demonstrated over multiple years clearly satisfies the concept of full-time for the purposes of satisfying the visa criteria.

10. The Tribunal has in addition been provided with the Payroll Activity statement dated 3/12/2016 to 20/7/2020. It notes the details are at a macro level.

11. The Tribunal has perused several years of ATO Taxation Returns (FY 2019, FY 2020, FY 2020) that support the assessment of the applicant’s application.

12. The Tribunal has perused and accepted as genuine, certification to show the applicant has a Certificate lll in their chosen career of Commercial Cookery and a Certificate lV in Commercial Cookery.

13. Additional evidence of the applicant’s ongoing work has been provided in the form of a statement dated 22 March 2023, from the Nominator, Civicflow Pty Ltd extoling the nature of the applicant’s work. The nominator’s business is consistent with the duties of a Chef (ANZSCO 351311). The nominator then states the ongoing nature of the visa applicant’s role and future expectations.

14. The applicant has worked in the nominated occupation of Chef, ANZSCO 351311, for at least 2 years and therefore satisfies clause 482.231 of Schedule 2 of the Regulations.

15. The Tribunal notes the position remains available to the applicant and it is satisfied they continue to fill it and can reasonably be expected to do so into the foreseeable future based on the nominators statement and the current challenging employment market. Having interrogated a popular online employment website the Tribunal notes that more than 20,000 associated positions are currently under active recruitment nationally.

16. The person who made the nomination was an approved work sponsor at the time the nomination was approved. The position has not been withdrawn and there is a current SBS which expires on 5 August 2026.

17. The Tribunal notes the associated nomination was approved by the Department on 6 August 2021 under section 140GB of the Act and has not ceased under regulation 2.75.

18. For these stated reasons, cl 482.231 is met.

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

    DECISION

20. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.231 of Schedule 2 to the Regulations

    Peter Emmerton
    Member