Catalane Benko (Migration)

[2022] AATA 1880

Catalane Benko (Migration) [2022] AATA 1880 (21 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Caroline Catalane Benko

REPRESENTATIVE:  Mr McCrudden Michael (MARN: 0429447)

CASE NUMBER:  1933882

HOME AFFAIRS REFERENCE(S):          BCC2019/5713866

MEMBER:Penelope Hunter

DATE:21 April 2022

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 21 April 2022 at 11:16am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Bricklayer – 2 years’ work experience in related field – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 26 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 12 November 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 Medium-term stream to work in the nominated occupation of Bricklayer, for her sponsor Wandere Pty Limited.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had demonstrated that she had worked in the nominated occupation or a related field for at least two years.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. The applicant had set out in her visa application that she had obtained a Certificate III in Bricklaying/Blocklaying in 2019, and that she had worked for her sponsoring employer part time since 2018 in the nominated position. The delegate commented that the applicant had not provided any evidence to support her employment such as references, payslips or tax returns. Further, although the applicant had claimed that she was also employed full time as a bricklayer in Brazil from 1 January 2013 to 1 January 2015,the delegate found that she had submitted to the Department no evidence of this employment.

8. In response to a request from the Tribunal for further documentation, on 14 February 2022,  the applicant has submitted for consideration the following documents:

   i.Agent’s submission.

   ii.Statutory declaration of Tim Spengeler, dated 11 February 2022.

   iii.Payroll records for the period 1 January 2020 to 31 December 2021,

   iv.Breakdown of hours worked by the applicant for the period 1 January 2020 to 31 December 2021.

   v.ASIC Search of Wandere Pty Limited.

   vi.Business name search – Wandere Pty Limited holds the name Landmark Masonry.

   vii.Extracts from Landmark Masonry website.

   viii.Bricklaying licence for Landmark Masonry

   ix.Confirmation of workers compensation and public liability insurance held by Wandere Pty Limited.  

   x.Licences and qualifications held by the applicant.

   xi.Photographs of the applicant engaged in work

9. In his statutory declaration, the director of the applicant’s employer, Mr Tim Spengeler, sets out that the applicant has worked in the nominated position of bricklayer on a full-time basis since December 2019, although she has also worked part time prior to that. Although her hours vary, Mr Spengeler confirms that the applicant regularly works more than a 35-hour week. The evidence of Mr Spengeler is corroborated by the payroll records and spreadsheets submitted to the Tribunal documenting the hours worked by the applicant. The Tribunal accepts that the evidence submitted demonstrates that the applicant has obtained 3,762 hours hand on employment experience over two years, approximately equating to 99 weeks of employment, assuming a 38-hour week.

10. Mr Spengeler also confirms that the applicant continues to be employed by Wandere Pty Ltd, and that he regards the applicant as highly skilled and that she has also engaged in managing workers and sites on her employer’s behalf. He has also set out the tasks undertaken by the applicant consistent with the nominated occupation including:

    ·    reviewing complicated plans for medium-to-large scale residential projects;

    ·    developing strategies for the erection of walls, fences, and other structures using the bricks and other forms of blocks;

    ·    preparing the site, including foundations, subfloor etc;

    ·    laying bricks, block work according to the specifications in the plans; and

    ·    reviewing brick and block work to ensure the walls etc are in alignment.

11. Tribunal has also had regard to the qualifications, relevant licences, photographs and other supporting documentation evidencing the applicant’s skills and full-time engagement in the position. It is accepted that the applicant holds relevant qualifications including the Certificate III in Bricklaying and Blocklaying, and a Certificate IV and Diploma in Project Management.

12. Having considered the evidence overall the Tribunal is satisfied that the applicant has demonstrated that she has, at the time of this decision, worked in the nominated occupation for at least two years full time.

13. For these reasons, cl 482.231 of Schedule 2 to the Regulations is met

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

    DECISION

15. 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.

    Penelope Hunter
    Member