Salam (Migration)

[2024] ARTA 571

Salam (Migration) [2024] ARTA 571 (23 October 2024)
Decision and  
Reasons for Decision

APPLICANTS:  Mr Kazi

Mortuza Ibne Salam

Ms Afsana Rahman
Mr Kazi

Masjid Mursalin

RESPONDENT:  Minister for Home Affairs

TRIBUNAL NUMBER:  2208556

TRIBUNAL:General Member S Aster

DATE:23 October 2024

PLACE:Melbourne

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets cl 482.212(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 23 October 2024 at 11:15am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – baker – skills, qualifications and employment background – no formal qualifications and less than specified amount of relevant work experience at time of refusal decision – specified amount of experience at time of review – members of family unit – decision under review remitted

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants applied for the visas on 2 February 2022. 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 Short-term stream to work in the nominated occupation of baker.

2. 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(3) of Schedule 2 to the Regulations, which are set out below.

3. The applicant appeared before the Tribunal by video on 23 October 2024 to give evidence and present arguments.

4. The applicants were 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

   Applicant’s skills, qualifications and employment background

6. Clause 482.212(3) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

7. The Australian and New Zealand Standard Classification on Occupations (ANZSCO) dictionary outlines that bakers prepare and bake bread loaves and rolls. The occupation has a skill level commensurate with an Australian Qualifications Framework Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3). The dictionary goes on say that at least three years of relevant experience may substitute for the formal qualifications.

8. At the time of the delegate’s decision, the applicant did not hold a relevant qualification and he had not completed at least three years of relevant experience. It was accepted that he had completed 10 months of employment with Baked Goods Pty Ltd and 10 months with Central Baking Depot Pty Ltd prior to commencing with the nominating employer, Born to Bake.

9. By the date of this decision the applicant had completed the necessary work experience. The applicant provided the Tribunal with payslips issued by his nominating employer for the period for April 2022 to 6 October 2024. When considered in conjunction with his past experience, the applicant has completed at least three years of relevant experience.

10. The Tribunal finds that the applicant has skills, qualifications and employment background necessary to perform the tasks of a baker.

11. For these reasons the applicant meets the requirements of cl 482.212(3).

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

13. The second and third named applicants applied for the visas on the basis that they are members of the same family unit as the first named applicant. Their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

14. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets cl 482.212(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

    Date(s) of hearing:  23 October 2024   

    Representative for the Applicant:                Mr Ali Usman