Taylor (Migration)

[2024] AATA 3693

Taylor (Migration) [2024] AATA 3693 (3 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hannah Taylor

REPRESENTATIVE:  Ms Edwina King (MARN: 1803481)

CASE NUMBER:  2205947

HOME AFFAIRS REFERENCE(S):          BCC2021/822451

MEMBER:Sheridan Aster

DATE:3 October 2024

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 cl 482.212(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 03 October 2024 at 10:37am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Medium-term stream – nurseryperson – Tribunal is satisfied that the applicant has both the formal qualifications and experience necessary to perform the tasks of the nominated occupation –– decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.212

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 4 April 2022 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 11 January 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. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of nurseryperson.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy cl 482.212(3) of Schedule 2 to the Regulations, which requires that the applicant have the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

4. 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

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

6. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary outlines that nursery persons propagate and cultivate trees, shrubs, and ornamental and flowering plants in a plant or forestry nursery. It goes on to stipulate that a nurseryperson has a level of skill commensurate with an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV. At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.

7. The delegate was concerned the applicant did not hold the formal qualifications or minimum relevant experience necessary to perform the tasks of the nominated occupation. At the time of the delegate’s decision, the applicant had provided evidence of employment as a nurseryperson at Yanchep Springs for one year and three months and Nature Select for one year. The total experience as a nurseryperson did not amount to three years.

8. On 26 September 2023, the applicant supplied the Tribunal with a copy of a Certificate IV in Horticulture issued by Wakefield International College to Hannah Taylor on 15 November 2022. The applicant also supplied an income statement issued by the Australian Taxation Office and payslips recording payments to her by Nature Select.

9. On 30 September 2024, the Tribunal requested three recent payslips issued to the applicant to demonstrate her ongoing employment. The applicant supplied payslips issued by Nature Select for the period 9 to 29 September 2024.

10. The Tribunal is satisfied that the applicant has both the formal qualifications and experience necessary to perform the tasks of the nominated occupation. The applicant meets the requirements of cl 482.212(3).

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

    DECISION

12. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets cl 482.212(3) of Schedule 2 to the Migration Regulations 1994 (Cth).

    Sheridan Aster
    Member