Manh (Migration)

[2023] AATA 4429

Manh (Migration) [2023] AATA 4429 (17 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Trieu

Xuan Manh

Ms Van Thi Tuong Nguyen

REPRESENTATIVE:  Mr Richard Tan (MARN: 0429043)

CASE NUMBER:  2003014

HOME AFFAIRS REFERENCE(S):          BCC2019/6734570

MEMBER:Warren Stooke AM

DATE:17 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

·cl 482.212 of Schedule 2 to the Regulations; and

·cl 482.312 of Schedule 2 to the Regulations.

Statement made on 17 November 2023 at 7:53am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – ICT Support Technicians nec – genuine position and intention to perform occupation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212, 482.312

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 14 February 2020 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 December 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 primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of ICT Support Technicians nec – ANZSCO Code: 313199.

3. 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 of Schedule 2 to the Regulations because prospective sponsoring employer BEYOND 2000 AUTOCARE PTY LTD did not have an approved nomination in place for the nominee.

4. The applicants appeared before the Tribunal on 6 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr David Nguyen and Mrs Lan Nguyen.

5. The applicants were represented in relation to the review.

6. The applicant confirmed to the Tribunal that the applicant had received a copy of the decision from the Department and had read the decision.

7. The applicant stated that a copy of the Department’s decision had been provided to the Tribunal with the application for review.

8. The applicant stated that he understood the decision to refuse his visa application was because he did not have a suitable nomination.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant has an approved standard business sponsor for the nominated occupation of ICT Support Technicians nec – ANZSCO Code: 313199.

11. The applicant provided evidence that he understood his visa application was refused because he did not have a suitable nomination.

12. The applicant provided evidence of the completion of the following courses of study:

    a.Diploma of IT (Software) at the Kent Institute of Technology on 21 August 2009;

    b.Certificate III in Training and Assessment at the Teacher Education Centre on 6 December 2015;

    c.Certificate II in Security Operations at Tricore Matrix RTO Reg: 21571 on 28 May 2015;

    d.Work Safely in the Construction Industry 5 April 2016.

13. The applicant provided evidence that he was informed by a friend that Beyond 2000 Autocare was looking for staff and introduced him to the current employer.

14. The applicant stated that he spends more than 50 per cent of his time undertaking IT related duties and that he deals with the office staff and with customers.

15. The applicant stated that he also helps employees in the workshop (extensive computerised equipment is used in this environment).

16. The applicant stated that it was difficult to see his position is not genuine and not fully engaged in IT.

17. The applicant explained to the Tribunal that his position undertakes the following tasks:

    a.Maintenance of the OBD Scanner; the work station providing a spectrum read for paint mixing allowing for variances in colour and formula for the paint to be used, which is used every day;

    b.Monitoring the system for the spray painting booth and air contact inside and outside and supporting calibration;

    c.Maintain the infrared monitoring system for drying;

    d.Maintain the welding machine, which cost $14,000 and provides spot welding; pinch welding and body removal of vehicle parts;

    e.Maintain the refrigeration machine that makes it easier to check for refrigeration gas of the vehicle and the automotive air conditioning systems;

    f.Maintain the CCTV security system.

18. The Tribunal invited comment on the ANZSCO descriptor for an ICT Support Technicians nec – ANZSCO Code: 313199, as follows:

    UNIT GROUP 3131 ICT SUPPORT TECHNICIANS

    ICT SUPPORT TECHNICIANS provide support for the deployment and maintenance of computer infrastructure and web technology and the diagnosis and resolution of technical problems.

    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 Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    
    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    
    At least three years of relevant experience and/or relevant vendor certification may substitute for the formal qualifications listed above. In some instances relevant experience may be required in addition to the formal qualification.

    Tasks Include:

    odetermining software and hardware requirements to provide solutions to problems

    oresponding to inquiries about software and hardware problems

    oadapting existing programs to meet users' requirements

    oinstalling and downloading appropriate software

    oensuring efficient use of applications and equipment

    oimplementing computer networks

    odesigning and maintaining websites

    orepairing and replacing peripheral equipment such as terminals, printers and modems

    omay work in a call centre

    
    Occupations:

    313111 Hardware Technician
    313112 ICT Customer Support Officer
    313113 Web Administrator
    313199 ICT Support Technicians nec

    
    313199 ICT SUPPORT TECHNICIANS NEC

    This occupation group covers ICT Support Technicians not elsewhere classified.

    Skill Level: 2

    Occupations in this group include:

    Applications Packager
    Computer Systems Technician
    Telecommunications Computer Systems Technician

19. The applicant confirmed that the following tasks are undertaken in relation to ANZSCO descriptor for an ICT Support Technicians nec – ANZSCO Code: 313199:

    a.determining software and hardware requirements to provide solutions to problems

    b.responding to inquiries about software and hardware problems

    c.adapting existing programs to meet users' requirements

    d.installing and downloading appropriate software

    e.ensuring efficient use of applications and equipment, that includes the scanner that transmits to the identity malfunction

    f.implementing computer networks, which the applicant designed

    g.designing and maintaining websites, which the applicant interacts with and updates

    h.repairing and replacing peripheral equipment such as terminals, printers and modems

20. Additionally, the applicant stated that he undertakes diagnostic work on the computer system and the office back-up server; security cameras and malfunctions on car work.

    Evidence of Mrs and Mr Nguyen (owners of Beyond 2000 Autocare Pty Ltd)

21. The nominating sponsor provided evidence that Beyond 2000 Autocare Pty Ltd was registered with ASIC on 8 December 1998 and assigned ACN: 085 412 335 and an ABN: 83 161 611 068 for the Trustee of Beyond 2000 Autocare Pty Ltd on 1 July 2010.

22. The nominating sponsor provided oral evidence at hearing that the business is engaged in car repairs and body work; mechanical servicing and maintenance, including the undertaking of insurance and local work and has been operating since 1999.

23. The nominating sponsor submitted before hearing that Beyond 2000 Auto Care Pty Ltd has been established since 1999 and is continuously being developed for adapting with the rapid changes of modern technology.

24. The nominating sponsor explained to the Tribunal that the business has ultra modern sophisticated technology that is used from the quotation of work undertaken, through to the execution of the work, which is heavily computer and electronically based and requires constant overseeing and maintenance together with training staff on the use of the equipment. As such, the maintenance of the equipment is predominantly performed in-house by the applicant and that he has oversight of activities undertaken on the floor in the use of sophisticated equipment.

25. It was stated that the applicant’s duties extend to the office where he maintains the software on the computer based systems; telephonic equipment and fax machines; that predominantly interact with third parties including a direct connection to the partnered insurance company for whom the business undertakes work

26. The nominating sponsor stated Mr Nguyen is a director of the business and undertakes; administration; customer service and reliability; office work and dealing with client insurance claims.

27. The nominating sponsor stated that the business has 10 to 12 employees, including the ICT Support Technician; two mechanics (one part-time and one casual); a body work controller; two full-time office staff; an assembler and disassembler on the floor, one spray painter; one detailer and two casuals.

28. The nominating sponsor stated that the applicable award is the Vehicle Industry Repair Service and Retail 2010.

29. The nominating sponsor stated that the applicant commenced with the business in 2018 and had initially worked part-time.

30. The nominating sponsor provided evidence of an approved business sponsorship from 30 August 2019 to 30 August 2024.

31. The nominating sponsor provided evidence that the nominated position of ICT Support Technicians nec – ANZSCO Code: 313199 was advertised for a period of 30 days to expire after 16 December 2019.

32. The nominating sponsor provided evidence that the nominated position of ICT Support Technicians nec – ANZSCO Code: 313199 was advertised with Adzuna and identified the employer as CBD and Inner Suburb based.

33. The nominating sponsor provided the Department with a ‘Genuine Position’ statement on 16 December 2019 that included extensive information and photographic identification of the complex computerised equipment used in the business.

34. The nominating sponsor provided evidence of a full-time contract of employment dated 24 July 2023 that commences upon the approval of a 482 visa, with a salary of $65,000 and 11.0 per cent superannuation contribution.

35. The nominating sponsor stated that the applicant can take on anything and is very useful for the company.

36. The nominating sponsor stated that the applicant works 40 to 42 hours per week and the contract of 23 July 2023 noted his salary was increased to $65,000.

37. The nominating sponsor stated that the applicant has completed an IELTS English language test initially on 29 July 2019 with an overall score of 6.5 and more lately on 20 July 2023 with an overall score of 7.0.

38. The nominating sponsor stated that the business has a lot of computerised equipment and that the employment of the applicant was a comfort to the business given his knowledge and use of the equipment, which he can also maintain.

    Genuine position and intention to perform occupation

39. Clause 482.212(2) requires that the applicant’s intention to perform the nominated occupation is genuine and the position associated with the nominated occupation is genuine.

40. The Tribunal is satisfied that Beyond 200 Autocare Pty Ltd has a approved business sponsorship that was granted on 30 August 2019 and is valid until 30 August 2024.

41. Further, based on the evidence the Tribunal is satisfied that the business has a genuine need to employ an ICT Support Technicians nec – ANZSCO Code: 313199 on a full-time basis to support the sophisticated computer based technology utilised in the business and that the applicant has a financial capacity to engage the applicant for a period of at least 2 years.

42. For these reasons the requirements of cl 482.212(2) are met.

43. On the basis that the primary applicant has met the requirements for the grant of a 482 visa, it follows that the secondary applicant is a member of the family unit that has met the required criteria for the grant of a 482 visa.

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

    DECISION

45. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.212 of Schedule 2 to the Regulations; and

    ·cl 482.312 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member