Cantu (Migration)

[2021] AATA 1322

Cantu (Migration) [2021] AATA 1322 (9 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Joao Marcos Cantu

CASE NUMBER:  1822299

HOME AFFAIRS REFERENCE(S):          BCC2017/2129128

MEMBER:Andrew McLean Williams

DATE:9 March 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl 457.223(4) of Schedule 2 to the Regulations

Statement made on 09 March 2021 at 11:43am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Painting Trades Worker – necessary skills, qualifications and employment background of the nominated occupation – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 457.223

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 13 July 2018 refusing to grant the visa applicant a Temporary Business Entry (Class UC) visa, under s 65 of the Migration Act 1958 (‘the Act’).

2. The visa applicant applied for the visa on 16 June 2017. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’).

3. The delegate refused to grant the visa on the basis that cl 457.223(4)(da) was not met because the delegate was not satisfied that the applicant had provided sufficient evidence to demonstrate that he had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, which in this instance is that of a Painting Trades Worker (ANZSCO 332211).

4. The applicant appeared before the Tribunal on 9 March 2021 to give evidence and make submissions. The Tribunal also received oral evidence from Ms Maria Pedrassani (the partner of the applicant), and from Mr Jaison Guljas, who is the applicant’s Australian employer.

5. The applicant was represented in relation to this review by his registered migration agent, Mr Troy Sanders (MARN 0319666) of Troy Migration.  Mr Sanders also appeared before the Tribunal hearing on 9 March 2021, and had provided a detailed written submission dated 20 November 2019.

6. For the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration.

   Consideration of claims and evidence

7. The issue in this case is whether - at the time of decision - the applicant meets the requirements of subclause 457.223(4)(da).  These will be met if the applicant has the necessary skills, qualifications and employment background of the nominated occupation.  In this instance the nominated occupation is that of a Painting Trades Worker (ANZSCO 332211), which at a minimum requires AQF Certificate III qualifications including at least 2 years of on-the-job training.

   Does the applicant meet the skill and experience requirements?

8. The applicant came to Australia in 2015 from his native Brazil.  Prior to coming to this country the applicant undertook a Bachelor of Social Communication (Advertising) degree in Brazil and had worked casually throughout the period from Nov 2009 until April 2015 as a painter employed by Buzzi e Silva Arquitetos Associates.  It was in this role that the applicant acquired the basic trade skills of a painter.  Given the casual nature of that employment the available documentation to show the fact of that employment is limited, although the Tribunal does note the fact of a reference letter from the applicant’s former Brazilian employer. 

9. Since 2015 the applicant has worked on the Gold Coast as a painter employed continuously by Leisuretex Painting.  The Tribunal heard evidence from Mr Jaison Guljas who is the owner of Leisuretex and the applicant’s employer.  Mr Guljas spoke very highly of the applicant’s trade skills and suitability to work as a leading hand/site supervisor and underscored the fact that further trade training has also been undertaken by the applicant whilst he has been an employee of Leisuretex.  Written references from Leisuretex clientele that have also been placed before the Tribunal confirm that the applicant has valuable trade skills.  The applicant has also now completed a Certificate III in Painting and Decorating, with that certificate having been conferred on 7 May 2019. 

10. In light of the foregoing evidence, the applicant satisfies cl 457.223(4)(da).

11. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

12. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl 457.223(4)(da) of Schedule 2 to the Regulations

    Andrew McLean Williams
    Member