Al-Saadi (Migration)

[2021] AATA 4951

Al-Saadi (Migration) [2021] AATA 4951 (1 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Ahmed Arheem Hachem Al-Saadi

Mrs Ritha Holmqvist Al-Saadi

Miss Tilda Zoe Holmqvist Johansson

Mr Ali Ahmed Arheem Al-Saadi

CASE NUMBER:  1830843

HOME AFFAIRS REFERENCE(S):         BCC2018/3273107

MEMBER:Alison Mercer

DATE:1 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications 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.

Statement made on 1 October 2021 at 4:13pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – 2 years’ work experience in related field – Carpenter – reference letter – PAYG payment summary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 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 5 October 2018 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 August 2018. 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 (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Carpenter.

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, which required that he had worked in his nominated occupation (or a related field) for at least 2 years. The delegate noted that the applicant had nominated the occupation of Carpenter, for which the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary required a person to hold a Certificate IV, or a Certificate III that involved at least 2 years of on the job training, or to have 3 years previous relevant work experience, in order to be working at the skill level required. The delegate found that the applicant did not hold any formal qualifications as a Carpenter and had claimed the following work experience:

• Australia –      for Zimba Formwork Pty Ltd, part time work from 12 February 2018 to 23 July 2018; full time work from 23 July 2018 to date;

• Sweden –       for ATV Malari & Kakel AB – 10 January 2009 to 30 November 2011

• Sweden -        for MP Malari, 5 December 2007 to 20 December 2008

1. The delegate acknowledged that the applicant had provided references from his Swedish employers but gave these little weight as this work experience was not undertaken in the last 5 years (as required by Department policy) and some of it was also contradicted by the applicant’s CV, in which he stated that he worked as a taxi driver between November 2011 and November 2016.  Further, the delegate found that the period of the applicant’s full time employment in his nominated occupation in Australia amounted to approximately 5 months only. The delegate therefore found that the applicant did not meet cl.482.231 and could not be granted a subclass 482 visa in the Medium Term stream, and had made no claims against any other streams. The delegate also refused to grant subclass 482 visas to the second, third and fourth named applicants (the applicant’s spouse and children) on the basis  that they did not satisfy the secondary visa criteria to be members of the family unit of a person who held a subclass 482 visa, and there was no evidence that they met the primary visa criteria in their own right.

2. The Tribunal received a review application from the applicants on 22 October 2018, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Xiaoman Zheng, as their representative and authorised recipient for correspondence.

3. On 8 September 2021, the Tribunal wrote to the applicants via their agent to invite them, pursuant to s.359(2), to provide information demonstrating that the applicant met cl.482.231. They were requested to provide this information by 22 September 2021.

4. On 20 September 2021, the Tribunal received a legal submission with supporting documents from the applicant’s agent. The contents of the submission were as follows:

   …

   We act for our clients Mr Ahmed Arheem Hachem Al-Saadi, Mrs Ritha Holmqvist Al-Saadi, Mr Ali Ahmed Arheem Al-Saadi and Miss Tilda Zoe Holmqvist Johansson in relation to the review of a decision to refuse the grant of a Temporary Skill Shortage visa (Subclass 482) Medium term stream visa. We thank you for the opportunity to submit further information in support of the application made on 29 August 2018. 

   With reference to the legislative requirements and regulation 482.231, the applicant has provided evidence that they have the requisite skills, qualification, and employment experience necessary to perform the tasks and duties of the approved nominated occupation of Carpenter. 

   For the purposes of the subclass 482 visa, the applicant is required to have worked in the nominated occupation or a related field for at least 2 years. The way in which experience is assessed is guided by The Australian and New Zealand Standard Classification of Occupations (ANZSCO), which states the following:

   CARPENTERS AND JOINERS construct, erect, install, renovate and repair structures and fixtures made of wood, plywood, wallboard and other material, and cut, shape and fit timber parts to form structures and fittings.

   Indicative Skill Level:

   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below:

   In Australia:

   AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV

   (ANZSCO Skill Level 3)

   In New Zealand:

   NZ Register Level 4 qualification (ANZSCO Skill Level 3)

   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. Registration or licensing may be required.

   The primary visa applicant is able to demonstrate in excess of 3 years relevant work experience which is related and practical in order to fulfil the primary purpose of the role and occupation. In addition, the applicant holds a Certificate III in Carpentry and held a Contractor License as a Carpenter issued by NSW Fair Trading. 

   Enclosed, the applicant has provided the relevant employment reference, contract, payslips, Australian tax returns and evidence of formal qualification and licensing. 

   Evidence of work experience

   Zimba Formwork Pty Ltd t/a Zimba Formwork

   (a)      The reference letter from Mr Al-Saadi’s employer confirms he has been working in the role of a formwork carpenter for the last 3 years. We draw attention to the fact that the Director has been supervising his work and confirms all tasks have been completed entirely to the business’s satisfaction.

   (b)      Employment contract – confirming the position offered as Carpenter by Zimba Formwork Pty Ltd with a commencement date of 1 July 2018.

   (c)      Payslips – we note the payslips provided by the applicant confirm he is employed by Zimba Formwork and paid on a regular basis.

   (d)      Individual Tax Returns and PAYG Summaries - confirming ongoing and regular employment spanning the years 2018 – 2021.

   (e)      Certificate III in Carpentry CPC30211 – issued by Training Tradesmen Pty Ltd confirms a formal qualification obtained in Australia.

   (f)       Contractor License – issued by NSW Fair Trading.

   In light of the above, we submit the attached evidence demonstrates the applicant has at least 2 years of relevant work experience in the nominated occupation. 

   …

5. The submission was accompanied by the following documents:

• Certificate III in Carpentry issued to the applicant on 9 August 2019;

• carpenter contractor licence issued by NSW government to the applicant, expiry March 2021;

• reference letter from the director of Zimba Formwork Pty Ltd, Mr Bachir Abood, dated 20 September 2021;

• PAYG summary statement for the applicant for 2020/2021 evidencing ongoing employment with Zimba Formwork Pty Ltd;

• tax returns for the applicant for 2017, 2018, 2019 and 2020, evidencing ongoing employment of the applicant with Zimba Formwork Pty Ltd;

• payslips for the applicant for May – June 2021, evidencing ongoing employment of the applicant with Zimba Formwork Pty Ltd; and

• letter of offer of employment from Zimba Formwork Pty Ltd to the applicant, 26 June 2018.

1. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Requirement to have worked for at least 2 years

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

2. The Tribunal notes that this requirement is to be assessed as at the time of decision, which in this case means the time of the Tribunal’s consideration (October 2021).

3. Clause 482.231 does not specify whether the work experience must be full time or not, but Departmental policy (as set out in the Department’s Procedures Advice Manual, PAM3, in its current version) provides as follows:

   Under policy, it is expected that the work experience should have been undertaken on a full-time basis in the last five years. This period does not need to be continuous. Decision-makers may also consider work undertaken as a part-time employee that is equivalent to two years full-time, where they are confident that the applicant’s experience and skills are relevant and current.

   Consistent with the National Employment Standards (NES), employment will be considered ‘full-time’ where the visa applicant worked 38 hours per week.

   Work experience will, however, also be considered ‘full-time’ where the visa applicant worked for a period between 32 and 45 hours per week under an industry award or an agreement that was consistent with the NES where applicable.

   Decision-makers should also be aware that there are a variety of prevailing work arrangements in the Australian labour market that do not adhere to a standard work week and contact Program Management if they require further advice.

   Note: 

   The ‘two years’ work experience requirement is not in addition to any work experience requirements outlined in ANZSCO occupation definitions, which are relevant in terms of assessing sub-clause 482.212(3).

   Casual employment should not be counted towards meeting the work experience requirement.

   …

4. The Tribunal notes that Departmental policy is not legally binding on it (and must be disregarded if it conflicts with the underlying legislation which it purports to explain), but acknowledges that there are sound reasons (including consistency in decision-making) for applying policy where it does not conflict with the underlying legislation to which it purports to relate.

5. The Tribunal is satisfied that the applicant was nominated by Zimba Formwork Pty Ltd as a Carpenter (ANZSCO 331212). Therefore, the Tribunal must be satisfied that the applicant has worked in this occupation (or a related field) for at least 2 years as at October 2021. This work must have been undertaken at the appropriate skill level for the occupation (or related field). Department policy also indicates that the work experience should have been undertaken on a full time basis in the last 5 years.

6. In relation to whether the work experience of the applicant was in his nominated occupation or a closely related field at the required skill level, the Tribunal has reviewed the occupational description for the nominated occupation in the most recent edition of the ANZSCO online dictionary, which provides as follows:

UNIT GROUP 3312 CARPENTERS AND JOINERS

CARPENTERS AND JOINERS construct, erect, install, renovate and repair structures and fixtures made of wood, plywood, wallboard and other materials, and cut, shape and fit timber parts to form structures and fittings.

Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

In Australia:

AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

In New Zealand:

NZ Register Level 4 qualification (ANZSCO Skill Level 3)

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.

Registration or licensing may be required.

Tasks Include:

ostudying drawings and specifications to determine materials required, dimensions and installation procedures

oordering and selecting timbers and materials, and preparing layouts

ocutting materials, and assembling and nailing cut and shaped parts

oerecting framework and roof framing, laying sub-flooring and floorboards and verifying trueness of structures

onailing fascia panels, sheathing roofs, and fitting exterior wall cladding and door and window frames

oassembling prepared wood to form structures and fittings ready to install

ocutting wood joints

omay construct concrete formwork

omay repair existing fittings

omay work with plastic laminates, perspex and metals

Occupations:

331211 Carpenter and Joiner
331212 Carpenter
331213 Joiner

…

331212 CARPENTER

Constructs, erects, installs, renovates and repairs structures and fixtures of wood, plywood, wallboard and other materials. Registration or licensing may be required.

Skill Level: 3

Specialisations:

Fixing Carpenter
Formwork Carpenter
Prop and Scenery Maker

…

1. It is not disputed that the applicant does not hold a Certificate IV in Carpentry. While he obtained a Certificate III in Carpentry in August 2019, there is no clear indication or evidence that this involved at least 2 years of on the job training, as required by the ANZSCO occupational description above.

2. Therefore, the Tribunal needs to be satisfied that the applicant had at least 3 years of relevant experience to substitute for the formal qualifications, prior to undertaking at least 2 years of work as a Carpenter or in a closely related field on a full time basis in the last 5 years. However, it is not necessary that the 3 years of relevant experience in lieu of formal qualifications listed in ANZSCO must have been undertaken in the last 5 years. Nor is it clear that only full time work could be accepted for those purposes (although this is specified for the purposes of the 2 years set out in cl.482.231).

3. The Tribunal accepts, from the documentary evidence provided (the applicant’s tax returns, PAYG summary statements, payslips and reference letter from his employer), that the applicant has worked full time for Zimba Formwork Pty Ltd as a Carpenter since 23 July 2018, a period of just over 3 years at the time of the Tribunal’s consideration in October 2021. The reference from his employer indicates that he was carrying out the tasks of this occupation as listed in the ANZSCO description above.

4. At the time that the applicant commenced full time employment with Zimba Formwork Pty Ltd on 23 July 2018, he listed the following previous work experience as a Carpenter:

• part time work from 12 February 2018 to 23 July 2018 with Zimba Formwork Pty Ltd in Australia (approximately 6.5 months);

• 10 January 2009 to 30 November 2011 in Sweden for ATV Malari & Kakel AB (approximately 24.5 months); and

• 5 December 2007 to 20 December 2008 in Sweden for MP Malari (approximately 12.5 months).

1. The applicant’s Australian employer has confirmed the duration and duties of the applicant’s part time and full time work there. The Tribunal is satisfied that the applicant also provided to the Department a work reference from ATV Malari & Kakel AB dated 23 August 2018 confirming that the applicant worked as a Carpenter there for 40 hours per week for the dates set out above, and listing his duties, and an undated work reference from MP Malari confirming that the applicant worked full time as a Carpenter there for the dates set out above, and listing his duties.  The Tribunal accepts these documents are genuine.

2. The periods above total approximately 43 months, or just over 3.5 years. Accordingly, the Tribunal accepts that by the time that the applicant commenced full time work as a Carpenter for Zimba Formwork Pty Ltd on 23 July 2018, he had at least 3 years of relevant work experience in that field, and thus met the skill level requirements set out in the occupational description for a Carpenter in ANZSCO. The Tribunal is therefore satisfied that, in the last 5 years, the applicant has worked full time for Zimba Formwork Pty Ltd as a Carpenter from 23 July 2018 to date, a period of just over 3 years at the time of the Tribunal’s consideration in October 2021, at the required skill level.

3. Given the above, the Tribunal is satisfied that the applicant has worked in the nominated occupation or a related field for at least 2 years, and it finds that the requirements of cl.482.231 are met.

4. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa. As the second, third and fourth named applicants applied for the visas on the basis of being members of the family unit of the applicant, their applications will also be remitted to the Department for reconsideration upon its reconsideration of the applicant’s application.

DECISION

1. The Tribunal remits the applications 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.

Alison Mercer
Member