Warnakula Patabendige (Migration)

[2023] AATA 2692

Warnakula Patabendige (Migration) [2023] AATA 2692 (21 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Akila

Sanuja Perera Warnakula Patabendige

Master Josh Aiden Perera Warnakula

Patabendige

Mrs Galkissage Isuru Fernando

REPRESENTATIVE:  Mr Arwinder Pal Singh Randhawa (MARN: 1574550)

CASE NUMBER:  2101885

HOME AFFAIRS REFERENCE(S):          BCC2020/1648695

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. 482.231of Schedule 2 to the Regulations.

Statement made on 21 July 2023 at 3:43pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Accountant (General)   – 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 1 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 29 May 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 Akila Sanuja Perera Warnakula Patabendige, is seeking the visa in the Medium-term stream to work in the nominated occupation of Accountant (General) ANZSCO 221111.

3. The delegate refused to grant the visa on the basis that the first named applicant Mr Akila Sanuja Perera Warnakula Patabendige (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, Master Josh Aiden Perera Warnakula Patabendige and third named applicant Mrs Galkissage Isuru Fernando 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 18 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 applicant submitted the following to the Tribunal;

   ·    Payslips for the applicant dated 14 Feb 2018 to 28 June 2023

   ·    Applicant’s Income Statement 2019 issued by Egans (Personnel) Pty Ltd

   ·    Applicant’s Income Statement 2020 issued by Egans (Personnel) Pty Ltd

   ·    Applicant’s Income Statement 2021 issued by Egans (Personnel) Pty Ltd

   ·    Applicant’s Income Statement 2022 issued by Egans (Personnel) Pty Ltd

   ·    Applicant’s Notice of Assessments 2018, 2019, 2020, 2021 & 2022

   ·    Applicant’s resume

   ·    Employment reference dated 3 July 2023 from Egans Personnel Pty Ltd

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

9. 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.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether Mr Akila Sanuja Perera Warnakula Patabendige meets the requirements of cl.482.231 of schedule 2 to the Regulations.

    Requirement to have worked for at least 2 years

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

13. 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. On 11 August 2020 the Department requested the applicant provide evidence of his work experience and specified information to be included. On the 4 September 2020, the applicant provided a reference letter from Egans Personnel Pty Ltd, however the delegate was not satisfied that the letter specified the position held by the applicant and the main five duties undertaken.

14. In the absence of the requisite information, 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.

15. 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 Egans Personnel Pty Ltd as an Accountant since February 2018, which was not before the delegate at the time of their decision over two years ago.

16. On the basis of the evidence before it, the Tribunal is satisfied that the applicant has worked as an Accountant with Egans Personnel Pty Ltd since 5 February 2018. 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.

17. The second named applicant (Master Josh Aiden Perera Warnakula Patabendige),and third named applicant (Mrs Galkissage Isuru Fernando) applied on the basis of being a member of the family unit of the first named applicant (Mr Akila Sanuja Perera Warnakula Patabendige). The applications by Master Josh Aiden Perera Warnakula Patabendige and Mrs Galkissage Isuru Fernando will be determined by reference to the outcome of Mr Akila Sanuja Perera Warnakula Patabendige’s application on remittal to the Department for consideration.

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

    DECISION

19. 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