Collu (Migration)

[2023] AATA 922

Collu (Migration) [2023] AATA 922 (17 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Davide Collu
Miss Yuko Nakadai

CASE NUMBER:  2005491

HOME AFFAIRS REFERENCE(S):         BCC2019/6971827

MEMBER:Warren Stooke AM

DATE:17 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first and second named applicants meet the following criteria for a Subclass 485 visa:

·cl 485.222 of Schedule 2 to the Regulations; and

·cl 485.311 of Schedule 2 to the Regulations.

Statement made on 17 February 2023 at 3:29pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Electrician (General) – correct nominated occupation – Electronics Trades Worker – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.222, 485.311

CASES
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16

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 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 3 January 2020. The delegate refused to grant the visas on 28 February 2020.

2. The delegate made the decision on the basis that evidence of the courses undertaken were not transferrable to the nominated occupation of Electrician (General) – ANZSCO Code: 341111 required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. The applicants appeared before the Tribunal on 17 February 2023 to give evidence and present arguments.

4. The applicant provided evidence of an IELTS English language test with an overall score of 7.0.

5. The applicant provided evidence of discharge from miliray service in Italy from 19 August 2003 to 17 August 2004.

6. The applicant provided evidence of health insurance with nib that commenced on 3 January 2020.

7. The applicant provided evidence of an AFP name check in Australia.

8. The applicant provided evidence of prior recognition of skills obtained in Italy in the electrical industry and an identified skills training gap to obtain an electrical licence.

9. Prior to the hearing the Tribunal received information that the qualifications obtained by the applicant, included:

   oCertificate III in EAL From 14 May 2016 to 26 November 2016

   oCertificate IV in EAL from 21 January 2017 to 29 July 2017

   oCertificate IV in Information Technology Network from 09 October 2017 to 07 October 2018

   oDiploma of Telecommunications Engineering from 05 November 2018 to 21 October 2019

10. In discussion with the applicant at hearing, the applicant acknowledged that his qualifications were more closely aligned with the nominated occupation of Electronics Trades worker – ANZSCO Unit Group 3423.

11. The applicant advised the Tribunal that he had been working in Victoria as a B Grade Electrician and had an intention to obtain an A Grade Licence.

12. In light of the new evidence received, the Tribunal is satisfied that the criterion for an Electronics Trades Worker – ANZSCO Unit Group 3423 is met and has concluded that the matter should be remitted for reconsideration.

13. In this regard, the correct ANZSCO Code is as follows:

    UNIT GROUP 3423 ELECTRONICS TRADES WORKERS

    ELECTRONICS TRADES WORKERS maintain, adjust and repair electronic equipment such as business machines, video and audio equipment, and electronic instruments and control systems, and transmit and receive radio messages.

    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:

    oexamining and testing machines, equipment, instruments and control systems to diagnose faults

    oadjusting, repairing, and replacing worn and defective parts and wiring, and maintaining machines, equipment and instruments

    oreassembling, test operating and adjusting equipment

    oadvising users of correct operating procedures to prevent malfunctions

    oreceiving messages by interpreting code and converting to plain language, and writing and typing messages for transmission

    omonitoring radio traffic, and transmitting and receiving voice messages

    oinstalling electronic instruments and control systems

    oapplying knowledge of electrical, electronic, mechanical, hydraulic and pneumatic principles in commissioning and maintaining control systems

    
    Occupations:

    342311 Business Machine Mechanic
    342312 Communications Operator
    342313 Electronic Equipment Trades Worker
    342314 Electronic Instrument Trades Worker (General)
    342315 Electronic Instrument Trades Worker (Special Class)

14. The Tribunal has taken into account the evidence before it that the applicant should have more correctly sought to obtain the nominated skilled occupation was Electronics Trades Worker – ANZSCO Unit Group 3423. In this regard, the Tribunal is cognisant that corroborative evidence has been provided, which allows the Tribunal to correct the original nominated occupation derived from the subgroup major in the ANZSCO classification system: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99.

15. On the basis that the primary applicant has satisfied the criteria for the grant of a 485 Visa, it follows that the secondary applicant is a member of the family unit that has met the required criteria.

    DECISION

16. The Tribunal remits the applications for reconsideration, with the direction that the first and second named applicants meet the following criteria for a Subclass 485 visa:

    ·cl 485.222 of Schedule 2 to the Regulations; and

    ·cl 485.311 of Schedule 2 to the Regulations

    Warren Stooke AM
    Member