De Chavez (Migration)

[2023] AATA 2695

De Chavez (Migration) [2023] AATA 2695 (21 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Paul Banaag De Chavez

REPRESENTATIVE:  Ms Rachel Praxl (MARN: 0959855)

CASE NUMBER:  2103987

HOME AFFAIRS REFERENCE(S):          BCC2020/2926853

MEMBER:Karen McNamara

DATE:21 July 2023

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 July 2023 at 1:10pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Sheetmetal Trades Worker – applicant has worked in the nominated occupation for at least 2 years –– decision under review remitted  

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, 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 24 March 2021 to refuse to grant Mr John Paul Banaag De Chavez (the 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 5 January 2021. 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 Sheetmetal Trades Worker (ANZSCO 322211).

3. The delegate 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 because there was insufficient evidence before the delegate, to demonstrate that the applicant had worked in the nominated occupation or a related field for at least 2 years.

4. The applicant lodged an application for review with the Tribunal on 29 March 2021. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

5. The applicant was represented in relation to the review.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the requirements of cl.482.231 of schedule 2 to the Regulations.

   Requirement to have worked for at least 2 years

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

10. The primary decision record shows that at the time of application insufficient and conflicting information had been submitted to the Department. In response to the Department’s invitation to provide further information, the applicant provided evidence of further qualifications and a notification of incorrect information stating the applicant had not worked as a Sheet Metal Trades Worker, but as a Lagger on his last visa in Australia. The delegate noted that there was no evidence to prove that the applicant did any work until a new nomination application from another sponsor was approved for him to work as a Sheetmetal Trades Worker on 16/12/2020.

11. The delegate concluded that the work references provided, and the employment history claimed on the application form for the last five years, did not reflect that the applicant has worked in the nominated occupation or a related field for at least two years. Accordingly, the delegate found that there was no evidence that the applicant has worked in the nominated occupation or a related field for at least 2 years and subsequently found that the applicant did not satisfy cl.482.231.

12. On 23 December 2022, the applicant submitted the following to the Tribunal;

    ·Employment reference dated 11 December 2022 from Taylors Engineering & Welding Services

    ·Applicant’s Income Statement 2021 issued by The Trustee for G Taylor Family Trust

    ·Applicant’s Income Statement 2022 issued by The Trustee for G Taylor Family Trust

    ·Applicant’s Income Statement 2023 YTD (1 July 2022 to 7 September 2022) issued by The Trustee for G Taylor Family Trust

    ·Copy of applicant’s passport biodata page

13. The Tribunal has considered the entirety of the information before it and accepts the written information supporting that the applicant has worked on a full-time basis for Taylors Engineering & Welding Services since August 2020, which was not before the delegate at the time of their decision over two years ago.

14. On the basis of the evidence before it, the Tribunal is satisfied that the applicant has worked as a Sheetmetal Worker with Taylors Engineering & Welding Services since 17 August 2020. Accordingly, the Tribunal is satisfied that the applicant has worked in the nominated occupation for at least 2 years.

15. For these reasons, cl. 482.231 is met.

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

    DECISION

17. 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.

    Karen McNamara
    Member