Ben Saied (Migration) - [2023] AATA 3121

Ben Saied (Migration) [2023] AATA 3121 (21 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anouar Ben Saied
REPRESENTATIVE:  Mr Riccardo Ippoliti (MARN: 1386990)
CASE NUMBER:  2107460
HOME AFFAIRS REFERENCE(S):          BCC2020/2333891
MEMBER:Namoi Dougall
DATE:21 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Statement made on 21 September 2023 at 10:43am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – glazier – skills, qualifications and employment background – no response to hearing invitation or appearance at hearing – job training and experience mostly in vehicle repair, not glazing – less than 3 years’ employment in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 379A(5)
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(3)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 May 2021 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).
The applicant applied for the visa on 20 September 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 Medium-term stream to work in the nominated occupation of Glazier.
The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212(3) of Schedule 2 to the Regulations because the delegate was not satisfied that applicant had the skills, qualifications and employment background to necessary to perform the tasks of the nominated occupation of Glazier. In particular the applicant had not provided the Department with a copy of any qualifications, information as to his overseas qualifications did not provide any detail as to the positions he held and the information as to his Australian employment indicated he worked as an electrician.
On 5 September 2023, the Tribunal wrote to the review applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicants to give evidence and present arguments at a hearing 21 September 2023. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
No response to the hearing invitation was received and the applicants did not appear before the Tribunal on the day and at the time and place at which they were scheduled to appear. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing in accordance with s 379A(5), the invitation has not been returned to sender, and that SMS reminders were sent about the hearing on two separate occasions. Given the circumstances of this matter including that Departmental records indicate that the applicant holds a substantive visa, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

Applicant’s skills, qualifications and employment background

Clause 482.212(3) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl 482.212(4), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.
The nominated occupation was Glazier (ANZSCO 333111).
The Australian and New Zealand Standard Classification of Occupations (ANZSCO) specifies that the indicative skill level of a Glazier is commensurate with an AQF Certificate III including two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Leve 3) or higher qualification. At least three years of relevant experience may substitute for a formal qualification.
The applicant in the visa application indicated that he has a Training Diploma as a vehicle body and glass repairer from Heinrich Bussing Schule II, Germany. Neither the Department nor the Tribunal were provided with a copy of the applicant’s qualification.
Provided to the Department was a Training Certificate issued by Autohaus Wolfsburg which stated that the applicant was trained in the company’s motor vehicle body and painting centre from 1 September 2012 to 30 January 2016 in the following areas:
·     Planning and control of workflows
·     Repair and measurement of car bodies
·     Detection of errors, malfunctions and deficiencies
·     Equipping and retrofitting motor vehicles with accessories
·     Commissioning of motor vehicles and their systems
·     Examination of motor vehicles according to legal regulations
·     Assessment of damage to car bodies, evaluation of work results
·     Application of quality assurance measures
·     Protection and varnishing of surfaces
·     Situation-oriented communication with customers
The Tribunal accepts that applicant may have had come training the replacement of windscreens which is supported by the work reference from Autohaus Wolfsburg referred to below. However, there is no mention of the applicant having trained to be a Glazier with most of the training relating to the repair of vehicles. Therefore, due to the lack of evidence and information the Tribunal is not satisfied that the applicant obtained in Germany a qualification as a Glazier.
The applicant in his visa application indicated that his relevant employment history was as follows:
·     From 1 September 2012 and 18 January 2017, full time Vehicle Body & Glass Repairer with Autohaus Wolfsburg, Germany.
·     From June 2018 to September 2018, full time Glass Panels Installer/Glazier with Workpac c/o RCR O’Donnel Griffin. A period of 3 months.
·     From February 2019 to July 2019, full time Glass Panels Installer/Glazier with BKW Group. A period of 5 months
·     From 10 September 2019 to 3 January 2020, full time with Bond Clad Facades. A period of 4 months
·     From 4 January 2020, part time Glass Panels Installer/Glazier with Bond Clad Facades. A period of 8 months until the visa application was lodged.
In relation to the applicant’s employment in Germany, a reference was provided by his employer Autohaus Wolfsburg which stated that the applicant was employed after his training from 1 February 2016 to 18 January 2018, a period of 1 year, 11 months and 2 weeks. The applicant did replace broken or damaged windscreens but most of his tasks involved repairs of vehicles as his responsibilities and duties were listed as follows:
·     Identify the parts of the frame and bodywork that have been affected, assess the extent of the damage and provide the customer with an estimate of the time and cost required to repair it.
·     Perform all the repairs as needed to make the damaged vehicle safe and roadworthy and restore it to its original pre-accident condition.
·     Use of specific vehicle repair equipment, including tools for disassembling, repairing and assembling auto body parts, panels and accessories.
·     Remove broken or damaged glass windshields and window glass using tools to remove screws from frames holding glass and install repaired or new ones.
·     Perform precision pattern making and glass cutting to custom fit replacement windows.
·     Hold cut or uneven edges of glass against abrasive belts to shape and smooth edges.
·     Remove all dirt, foreign matter, and loose glass from damaged areas, apply primer along windshield or window edges, and allow primer to dry.
·     Measure of car bodies, apply protection and varnishing of surfaces, carry out refinishing and repainting.
Similar to the findings made above in relation to the applicant’s qualifications, the information and evidence provided to the Department indicates that the applicant in Germany worked as a vehicle repairer which would include replacing windscreens. However, that of itself is not sufficient evidence that the applicant worked as a Glazier and without supporting and additional evidence that he worked as a Glazier, the Tribunal is not satisfied that the applicant worked as a Glazier for Autohaus Wolfsburg in Germany.
In relation to the applicant’s work in Australia, the Department was provided with the following work references:
·     From RCR Infrastructure stating that the applicant worked full time as a Glazier at the Clermont Solar Farm project from June 2018 to September 2018.
·     From BKW Group dated 16 December 2019 stating that the applicant worked full time in the position of Electrician from February 2019 until July 2019 on a solar farm installing solar panels.
·     From Bond Clad Facades undated stating that the applicant has worked for Bond Cladding Residential Pty Ltd from 10 September 2019 to 3 January 2022 full time as a Glazier and after that as a subcontractor working 20 hours a week. The letter also stated that if his visa application is successful, he will be reemployed on a full time basis.
Even if the Tribunal accepted that the applicant’s work at BKW Group was that of Glazier, the total amount of time the applicant has worked as a Glazier in Australia is 20 months. Neither the Department or the Tribunal has been provided information or evidence that the applicant has worked in the nominated occupation beyond the date of the visa application which is 20 September 2020. Therefore, the Tribunal is not satisfied that the applicant has worked in the nominated occupation of Glazier for at least 3 years and does not have the relevant experience to at three years to substitute for a formal qualification.
Therefore, on all of the above, the Tribunal is not satisfied that the applicant has the skills qualifications and employment background necessary to perform the tasks of the nominated occupation of Glazier.
For these reasons the applicant does not meet the requirements of cl 482.212(3).
As one of the essential requirements for the visa is not met, the decision under review must be affirmed

DECISION

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

Namoi Dougall
Member