Yau (Migration)

[2023] AATA 2747

Yau (Migration) [2023] AATA 2747 (14 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sheng Yuen Yau

REPRESENTATIVE:  Mr Ian Charles Ritchie (MARN: 9685534)

CASE NUMBER:  2104036

HOME AFFAIRS REFERENCE(S):          BCC2021/203684

MEMBER:Karen McNamara

DATE:14 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa 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 14 August 2023 at 3:35pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Accountant (General) – worked in the nominated occupation for at least 2 years – relevant qualifications – additional work details provided upon review – remuneration by trust distributions – 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 15 March 2021, to refuse to grant Mr Sheng Yuen Yau (the 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 5 February 2021. 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Accountant (General) ANZSCO 221111.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl.482.231 of Schedule 2 to the Regulations because the delegate was not satisfied that there was sufficient evidence to demonstrate that the applicant has two years work experience at the skill level of an Accountant (General) ANZSCO 221111.

4. The applicant lodged an application for review with the Tribunal on 30 March 2021. The review application was accompanied by the following:

   ·National Police Certificate

   ·Resume Shaun Sheng Yuen Yau

   ·Work Reference by Undertheroof Pty Ltd dated 10 January 2021

   ·Police Certificate (UK)

   ·Certificate of admission to Master of Professional Accounting degree (CPA Australia Extension) Royal Melbourne Institute of Technology and academic transcript

   ·No Adverse record issued by Consulate General of Malaysia

   ·Academic migration assessment 1 March 2018 issued by CPA Australia

   ·Pearson PTE Academic 15 April 2019

   ·Submission by Representative dated 23 March 2021

   ·Primary decision record 15 March 2021

5. 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/representative), requesting the applicant to provide by 3 July 2023, current and updated information about whether the applicant has worked in the nominated occupation or a related field for at least two years.

7. On 30 June 2023, the representative on behalf of the applicant, submitted the following to the Tribunal;

   ·    Nominee’s payslips issued by Goulburn Valley Creamery

   ·    Nominee’s resume

   ·    Employment Contract  - Goulburn Valley Creamery signed and dated 18 July 2022

   ·    Employment reference – Undertheroof Pty Ltd dated 10 January 2021

   ·    Employment reference – Cape Manufacturing dated 30 June 2023

   ·    Individual tax returns (nominee) 2016/17; 2017/18; 2018/19 & 2019/20

   ·    Notice of Assessment (nominee) 2017; 2018; 2019 & 2020

8. On 24 July 2023, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient/representative) to appear before the Tribunal on 7 August 2023. The invitation requested the applicant to provide all documents he intended to rely on to support his case by 31 July 2023.

9. On 1 August 2023 the Tribunal sought confirmation from the representative, that a witness (Ms Chin) who required an interpreter, would in fact be attending and that pending confirmation, the hearing time would be rescheduled to accommodate an interpreter for the witness.

10. Subsequent to the Tribunal accommodating the request for an interpreter for the witness and rescheduling the time of the hearing, on 4 August 2023, the Tribunal was advised that       Ms Chin was not available to attend the scheduled hearing on 7 August 2023. The applicant requested the hearing be rescheduled.

11. By return email on 4 August 2023, the Tribunal advised the representative that the hearing would not be rescheduled to accommodate the witness and advised that the witness may provide written evidence if unable to attend the hearing at the scheduled time.

12. On 7 August 2023, Mr Sheng Yuen Yau, appeared before the Tribunal via telephone, to give evidence and present arguments.

13. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

14. At the conclusion of the hearing, the Tribunal invited the applicant to provide information supporting his work experience for at least two years as an Accountant or in a related field.

15. On 9 August 2023, the representative on behalf of the applicant submitted the following to the Tribunal;

    ·Work reference from Goulburn Valley Creamery

    ·Copies of work examples of work undertaken by the nominee

16. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in this case is whether the applicant meets the requirements of cl.482.231 of schedule 2 to the Regulations.

    Requirement to have worked for at least 2 years

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

20. The primary decision record shows, the delegate formed the view that the applicant had limited work experience as an Accountant, noting there was insufficient information to support the applicant’s employment claims of working in the nominated occupation.

21. At the hearing the Tribunal discussed with the applicant his current and past employment including that with Undertheroof Pty Ltd. The Tribunal noted that the applicant’s tax returns indicated remuneration was paid in the form of trust distributions. The applicant told the Tribunal that this method of payment was initiated by his former employer, to which he subsequently agreed to. Whilst the Tribunal considers this is an unusual arrangement, the Tribunal must turn its mind to whether the applicant has worked in the nominated occupation or a related field for at least two years.  

22. The Tribunal has carefully considered the entirety of the information before it and accepts the written information supporting that the applicant has collectively worked as an Accountant for at least two years. The written information attesting to his work history and experience, was not before the delegate at the time of their decision over three years ago.

23. On the basis of the evidence before it, the Tribunal is satisfied on balance, that the applicant has worked in the nominated occupation Accountant (General) ANZSCO 221111 or a related field for at least two years. Accordingly, the Tribunal is satisfied that the application satisfies cl. 482.231.

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

    DECISION

25. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa 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.

    Karen McNamara
    Member