Yothayot (Migration)

[2022] AATA 4700

Yothayot (Migration) [2022] AATA 4700 (9 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Phuangphet Yothayot

REPRESENTATIVE:  Mr Aphichart Saengthun (MARN: 0106983)

CASE NUMBER:  1933561

HOME AFFAIRS REFERENCE(S):          BCC2019/4784352

MEMBER:Penelope Hunter

DATE:9 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Statement made on 9 December 2022 at 9:26am

CATCHWORDS  
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Cook – genuine temporary entrant – long period of residence in Australia – incentive to return to Thailand – decision under review affirmed

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 482.222

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 21 November 2019 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 24 September 2019. 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 Short-term stream to work in the nominated occupation of Cook.

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 482.222 of Schedule 2 to the Regulations because they were not satisfied that the applicant was a genuine applicant for entry and stay as a short term visa holder.

4. The applicant was first invited to attend a hearing before the Tribunal on 25 August 2022, this hearing was postponed at the request of the applicant.

5. The applicant appeared before the Tribunal on 12 September 2022, via MS Teams video to give evidence and present arguments. The Tribunal also received oral evidence from Ms Wichittra Chanantho, director of Khongthong Pty Ltd, the sponsoring employer of the applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The applicant was represented in relation to the review, and her representative was also present during the Tribunal hearing.

7. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. According to her visa application, the applicant was seeking the visa under review for a period of up to two years to work for her sponsoring employer, Khongthong Pty Ltd in the position of Cook (ANZSCO 351411).

9. In support of the visa application, the applicant provided to the Department the following relevant documents:

   i.National Police Clearance Certificate dated 2 August 2019.

   ii.A certificate of completion of a Certificate IV in Commercial Cookery, issued 1 February 2017 and transcript of results.

   iii.First Aid statement of attainment, CBD College, issued 31 October 2016.

   iv.Statement of attainment, Hospitality Institute of Australasia, Use of Hygiene Practices for Food Safety, issued 24 October 2016.  

   v.A certificate of the award of a Diploma of Tourism, issued by Bridge Business College, and student transcript issued 22 January 2014.

   vi.A certificate of completion of a Diploma of Human Resources Management issued by Bridge Business College on 9 January 2012, and student transcript.

   vii.A certificate of completion of a Certificate IV in Business issued by Bridge Business College on 23 February 2012,  and student transcript.

   viii.Certificate transcript of units of competency in partial completion of an Advanced Diploma of Business, Sydney Business & Travel Academy dated 8 April 2008.

   ix.Change of name registration details.

10. In their decision record, a copy of which the applicant has submitted to the Tribunal, the delegate noted that the applicant did not provide a statement with the visa application or any supporting information in relation to the genuine temporary entry criteria. It was further noted that she had spent approximately 12 years in Australia on temporary visas or bridging visas, and there was concern that the applicant was using the temporary Skill Shortage visa program as a means  to establish ongoing residence in Australia.

11. At the hearing the Tribunal noted that the applicant had applied for the visa in September 2019 for a period of two years, three years had passed since the application and the Tribunal questioned the applicant as to why she needed the visa for a longer period. The applicant responded that she needed the visa in order to work. The applicant confirmed that she understood that it was a short-term visa and asserted that her sponsoring employer needed her to work for longer.

12. The applicant confirmed that she had been in Australia for 15 years. She said that she intended to return to Thailand in two years and that she needed to return to look after her mother and father. The applicant told the Tribunal that she first arrived in Australia on a student visa, and she claimed that she had spent around 10 years as a student. Prior to the visa application under review the applicant further told the Tribunal that she had held a subclass 457 visa and this was for employment with a different employer. When asked how many years’ experience that she had obtained in Australia working as a cook, the application responded that it was about 10 years. The Tribunal then questioned why she needed to stay in Australia to gain further experience as a cook and she told the Tribunal that it was to make money. The Tribunal asked the applicant if she could make money as a cook in her home country and she said that it was hard to find a job in Thailand and it was not the same in Australia.

13. The Tribunal asked the applicant how many times she had returned to Thailand since her arrival and she claimed that it was on one occasion around 2019. In response to questions regarding the current care of her parents the applicant said that her sisters were looking after them. The Tribunal noted that the applicant had submitted to the Department with the application evidence of registration of a change of name and the reason for the name change according to the documentation was a revocation of her adoption. The applicant was asked whether she was close relationship with her family or estranged from them. The applicant then responded that she had lived with her grandmother in Thailand.

14. When asked if she had any assets or any economic incentive to return, the applicant referred to land. Under further questioning she identified that it was her parents who had land and she would inherit. The Tribunal again referred to documents submitted by the applicant regarding her name change and revocation of adoption, and the applicant was questioned whether it was her real or adoptive parents who owned the land and the applicant responded that it was her step-parents. The Tribunal then questioned the claim that she would inherit when the adoption had been revoked and the applicant said that her biological parents had land too. She said she had now established a good relationship with her biological parents and was in contact weekly. She said that she worked and sent money to them to take care of them. Under further questioning the applicant told the Tribunal that she also sent money to her younger sister and aunt. The applicant was asked who would support everyone financially when she returned to Thailand and she responded that she was not sure, she said she was the only one supporting her family. When asked if due to this financial responsibility she would seek to remain in Australia beyond the next two years, the applicant said she did not intend to stay she just wanted to work and make more money.

15. In her current position, the applicant remains in the role of cook, although she claimed to have plans to become a chef. There were five or six other people who worked in her sponsor’s restaurant but there were no other cooks. The applicant claimed that she had been the only cook for the business for the last four years.

16. Contained within the Department file for the review application was a Certificate of Non-Disclosure dated 21 November 2021 issued pursuant to s 376 of the Act. A copy of the Certificate was sent to the applicant on 23 August 2022, and the Tribunal had invited submissions prior to the hearing as to the validity of the certificate. No response had been received prior to hearing, and the applicant’s representative confirmed at the hearing that the validity of the certificate was not disputed. The Tribunal had advised the applicant that it was of the view that the certificate was valid as it clearly identified the relevant records, provided a public interest reason for the non-disclosed and was appropriately signed and dated. Pursuant to the provisions of s359AA of the Act the Tribunal invited the application to comment on the substance of information contained in the record covered by the certificate. The applicant indicated that these issues arose with a previous employer and asked for additional time to respond. The Tribunal granted the request and proposed to write to her regarding the matter following the hearing.

17. The applicant’s witness, Ms Chanantho, told the Tribunal that she relied on the applicant in her business. She said she was the mother of several children, her youngest was aged five months and wanted the applicant to continue to work for her for another two years to allow her to spend time with her infant. Ms Chanantho confirmed the evidence of the applicant that she was the only cook for the business, and that there were six staff working in the restaurant altogether. She claimed that she had in the past attempted to recruit another cook but nobody called or responded to the advertisement.

18. Following the hearing the Tribunal wrote to the applicant and invited her to comment on the following information:

    ·The Department of Home Affairs received an anonymous tip-off in relation to your employer/sponsor. The information provided to the Department was that the employer/sponsor made you pay your own tax and superannuation in order to gain permanent residency. Further, if you did not comply, your employer/sponsor would seek to cancel your visa.

    ·This allegation was also stated to apply to other employees of your employer/sponsor.

    The correspondence further informed the applicant that the information was relevant to the review because if it is relied upon it is adverse information relevant to the person who nominated her for the nominated occupation, it may also suggest that the position that she is seeking to rely upon is not a genuine position and that it was also her intention to maintain permanent residency in Australia. If relied upon the information may form a reason or a part of a reason for the finding that the applicant was not a genuine temporary entrant. The applicant was invited to provide any comments or response by 27 September 2022.

19. On 26 September 2022, the Tribunal received the following documents:

    i.Statement of Wichittra Chanantho dated 18 September 2022.

    ii.Statutory declaration of Alen Money declared 22 September 2021.

    iii.Settlement statement for the purchase of the business by Khongthong Pty Ltd.

    iv.Electronic receipt for the payment of superannuation.

    v.ASIC extract for Khongthong Pty Ltd ACH 622 831 668.

20. On 27 September 2022, the Tribunal received two payslips for the applicant for the period 22 August 2022 to 29 August 2022 and 30 August 2022 to 5 September 2022.

    Genuine short term applicant

21. Clause 482.222 requires as follows:

    The applicant is a genuine applicant for entry and stay as a short term visa holder because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)       the applicant’s circumstances; and

    (ii)      the applicant’s immigration history; and

    (iii)     any other relevant matter; and

    (b)the applicant intends to comply with any conditions to which the visa is subject, having regard to:

    (i)       the applicant’s record of compliance with any condition to which a visa previously held by the applicant (if any) was subject; and

    (ii)      the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant genuinely intend to stay temporarily?

22. For the applicant to meet cl 482.222(a), the Tribunal must be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to the applicant’s circumstances and immigration history, and any other relevant matter.

23. The applicant has resided in Australia for over 15 years on various temporary visas and is seeking to remain for at least another two years. Although the applicant has claimed that she did not wish to remain in Australia permanently, this long period of residence demonstrates to the Tribunal that the applicant may consider Australia as more than a temporary destination. The applicant’s stay in Australia has not been intermittent. She has only returned on one occasion to her home country. This is does not demonstrate to the Tribunal that she has a strong incentive to return.

24. While it is accepted that the applicant has family in Thailand, she has spent minimal time in their presence in the last 15 years. The applicant has presented evidence that her adoption had been revoked, and there was her evidence at hearing that she had formerly lived with her grandmother in Thailand. Although she now claimed to have regular contact with her birth parents, and is required to financially support them. The Tribunal had ongoing questions about how much time she had spent with them in the past. The Tribunal raised with the applicant at the hearing concerns about her estrangement from her family, and it did not find her evidence in reply particularly responsive. Although she claimed that she must care for her parents in the future, she acknowledged that other siblings were already doing this on a daily basis. The relationship with her family did not appear to require her physical presence. The applicant appeared to be undertaking her claimed obligation to take care of her family with her employment in Australia. The applicant has provided no further evidence post hearing and the Tribunal is not persuaded on the evidence that her family connections provide a significant incentive for her to return.

25. Although the applicant indicated that she may inherit property in the future from her parents, there is no evidence to support this claim. The evidence shifted as to which parents would provide for her. Further, from her evidence at hearing her biological parents and other family members are dependent upon her for financial support. The applicant repeatedly stated that she wished to remain in Australia to make money. The applicant further suggested that it would be hard for her to find work in Thailand. She did could not present for the Tribunal any career or professional plan for her future in her home country. On the evidence it appeared that the economic circumstances of the applicant in Thailand presented little incentive for the applicant to return.

26. The applicant has obtained several qualifications in Australia in Business, Tourism and Cookery. She has over ten year’s experience in Australia in the nominated position of cook. Although the applicant and Ms Chanantho claimed that she was the sole cook for the business for the last four years she has not advanced in her position yet the title of chef remained a possibility. On the evidence the applicant had already obtained relevant skills and experience in Australia and there was little professional benefit to her remaining in the role of cook for a further two years.

27. The Tribunal has considered the evidence of Ms Chanantho that due to her family commitments she requires the assistance of the applicant in her business for a further two years. It is accepted that having engaged the applicant as the sole cook for the business since its establishment that Ms Chanantho would have become reliant on the applicant. However, Ms Chanantho was also aware that she was sponsoring the applicant for a temporary visa for a period up to two years. The Tribunal has no financial evidence before it to support the claims that the business could not operate without the assistance of the applicant or that attempts to recruit staff have been unsuccessful.

28. The Tribunal has considered the evidence and statement of Ms Chanantho provided following the hearing and accepts that claims made to the Department regarding the applicant being required to pay her own tax and superannuation related to a former sponsor of the applicant. It is noted that the information was provided in 2018, prior to the applicant’s current employment with her sponsor. The payslips presented, evidence of bank transfers and the statutory declaration of Mr Money, further support that the applicant is paid her full entitlements in the position and the Tribunal is satisfied that the adverse information does not pertain to the nominator for the visa under review. It follows that there is no finding in relation to adverse information for the purposes of cl 482.216 of Schedule 2 to the Regulations. The Tribunal further acknowledges that there is no evidence that the applicant had not abided by the conditions of her previous visas.

29. The applicant herself did not provide a response at hearing, or in subsequent documents submitted post hearing, to the concern of the Tribunal that she was using the position to maintain permanent residence in Australia. The Tribunal has had regard to the submission from her representative that the applicant could not access permanent residence from a subclass 482 visa. However, as discussed at the hearing Tribunal notes that a pathway for the applicant does exist given the introduction of Migration (Specified persons and periods of time for regulation 5.19) Instrument (LIN 22/038) 2022 which may for Subclass 482 visa holders in the short term stream to access permanent residency, and further once the holder of a substantive visa other visa pathways may arise. Consequently, the Tribunal places little weight on this submission.

30. In considering the totality of the evidence, the circumstances of the applicant are that she has been in Australia for over 15 years on various temporary and bridging visas. Although it is acknowledged that the applicant has generally abided by the conditions of her previous visas, this length of time is not considered temporary. Her periods of stay have not been intermittent and it would appear that she has established ongoing residence in Australia. The applicant has worked for numerous years in her nominated occupation and it is considered she has obtained sufficient experience in Australia and relevant qualifications in Australia to assist her in gaining employment in the future in her home country. The Tribunal is not persuaded that the applicant has demonstrated a personal or economic incentive to return to Thailand. Her evidence at the hearing demonstrated little incentive for her to return. On balance the Tribunal is not persuaded that the applicant is a genuine applicant for entry and stay as a short term visa holder because it does not accept that the applicant genuinely intends to stay in Australia temporarily.

1. The applicant therefore does not satisfy cl 482.222(a).

2. Accordingly, the applicant does not meet cl 482.222 of Schedule 2 to the Regulations.

3. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

   decision

4. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

   Penelope Hunter
   Member