Salvo (Migration)

[2021] AATA 1377

Salvo (Migration) [2021] AATA 1377 (7 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Teresa Salvo

CASE NUMBER:  1822369

HOME AFFAIRS REFERENCE(S):          BCC2018/2633558

MEMBER:Sean Baker

DATE:7 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application 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 7 May 2021 at 10:50am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – work in nominated occupation or related field for 2 years – evidence of work experience provided to tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), 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 to refuse to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 13 July 2018. The delegate refused to grant the visa on 25 July 2018.

2. The delegate made the decision on the basis that evidence of the applicant having worked in the nominated occupation, or a related field, for at least two years was not provided as required to satisfy cl.482.231 for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. The Tribunal has before it evidence which demonstrates the applicant does meet the criterion. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

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.

5. Clause 482.231 specifies that:

   The applicant has worked in the nominated occupation or a related field for at least 2 years.

6. In this case the delegate considered that the applicant did not meet this requirement.

7. The applicant was nominated for the position of Chef – (ANZSCO 351311) Chef by their sponsor SBR MANAGEMENT PTY LTD.

8. The delegate found that despite having worked as a chef or in a related field, some of this work had been undertaken as a casual employee. Despite the type of work not being specified in the criterion, the delegate found that such work did not satisfy the requirement.

9. The Tribunal received a payslip from SBR MANAGEMENT PTY LTD dated 20 January 2021 made out to Teresa Salvo showing demonstrating she continues to be employed full time by her sponsor and has been for two years and nine months.

10. On the basis of this evidence and the evidence of her prior work provided to the Department the Tribunal is satisfied that the applicant satisfies cl. 482.231.

    DECISION

11. The Tribunal remits the application 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

    Sean Baker
    Member