Ramjuttun (Migration)

[2023] AATA 2691

Ramjuttun (Migration) [2023] AATA 2691 (21 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vijay

Anand Ramjuttun

Mrs Bibi Mehnaaz Sophie
Ms

Aakhirah Ramjuttun

Ms Genelia Ramjuttun

REPRESENTATIVE:  Mr Avinash Lejav en Poinen (MARN: 1171786)

CASE NUMBER:  2102024

HOME AFFAIRS REFERENCE(S):          BCC2020/401864

MEMBER:Karen McNamara

DATE:21 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application 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.

Statement made on 21 July 2023 at 5:44pm

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 –– decision under review remitted   

LEGISLATION
Migration Act 1958, ss 65, 359, 360
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 2 February 2021 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 12 February 2020. 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 Mr Vijay Anand Ramjuttun is seeking the visa in the Medium-term stream to work in the nominated occupation of Chef (ANZSCO 351311).

3. The delegate refused to grant the visas on the basis that the first named applicant Mr Vijay Anand Ramjuttun (the applicant) did not satisfy the requirements of cl. 482.231 of Schedule 2 to the Regulations, because there was insufficient evidence to demonstrate that the applicant had worked in the nominated occupation or a related field for at least 2 years.

4. The delegate also found that the second named applicant, Mrs Bibi Mehnaaz Sophie, third  named applicant Ms Aakhirah Ramjuttun and fourth named applicant Ms Genelia Ramjuttun could not be granted a Subclass 482 visa, as they did not meet the secondary visa criterion (cl.482.312) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 457 visa or a Subclass 482 visa.

5. The applicants lodged an application for review with the Tribunal on 21 February 2021. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

6. On the 19 June 2023, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant to provide by   3 July 2023, current and updated information about whether the primary visa applicant has worked in the nominated occupation or a related field for at least two years.

7. On 3 July 2023, the representative on behalf of the applicant submitted the following to the Tribunal;

   ·Employment reference dated 18 October 2022 from Byford & Districts Country Club Inc.  

   ·Employment reference dated 29 September 2022 from RMW Group

   ·Applicant’s resume

8. Additionally on 3 July 2023, the representative requested an extension of time to provide the applicant’s income statements, which was subsequently granted by the Tribunal.

9. On 10 July 2023 the Tribunal received copies of the applicant’s income statements issued by respective employers for the period 1 July 2019 to 30 June 2023.

10. The applicants were represented in relation to the review.

11. Having consideration to the totality of evidence before it, pursuant to s 360(2)(a) of the Act, the Tribunal considered that it could decide the review in the applicant’s favour without a hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether Mr Vijay Anand Ramjuttun meets the requirements of cl.482.231 of schedule 2 to the Regulations.

    Requirement to have worked for at least 2 years

14. Clause 482.231 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years.

15. The primary decision record shows that the delegate was not satisfied that the evidence before the Department demonstrated that the applicant has worked in the nominated occupation or a related field for at least 2 years. In summary the delegate found inconsistencies in the employment dates and the occupation carried out by the applicant as in some instances, references were made to the applicant undertaking the position of Cook.

16. In the absence of supporting information to confirm periods of employment in the occupation of Chef, the delegate was not satisfied that the applicant has worked in the nominated occupation or a related field for at least 2 years and subsequently found that the applicant did not satisfy cl.482.231.

17. The Tribunal has considered the entirety of the information before it and accepts the written information supporting that the applicant has worked on a full-time basis for three separate employers as a Chef since January 2017, which was not available to the delegate at the time of their decision over two years ago.

18. On the basis of the evidence before it, the Tribunal is satisfied that the applicant has worked as a Chef with Byford & Districts Country Club Inc from 17 January 2017 to 4 January 2020; RMW Group (Woodjack Pty Ltd) 10 January 2022 to 1 January 2023 and Ocean View Tavern (Empire 6 Pty Ltd) since 6 February 2023. Accordingly, the Tribunal is satisfied that the applicant has worked in the nominated occupation for at least 2 years. Accordingly, for these reasons cl. 482.231 is met.

19. The second named applicant (Mrs Bibi Mehnaaz Sophie), third named applicant (Ms Aakhirah Ramjuttun) and fourth named applicant (Ms Genelia Ramjuttun) applied on the basis of being a member of the family unit of the first named applicant (Mr Vijay Anand Ramjuttun). The applications by Mrs Bibi Mehnaaz Sophie, Ms Aakhirah Ramjuttun and Ms Genelia Ramjuttun will be determined by reference to the outcome of Mr Vijay Anand Ramjuttun’s application on remittal to the Department for consideration.

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

    DECISION

21. The Tribunal remits the application 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.

    Karen McNamara
    Member