MARINOS (Migration)

[2021] AATA 2073

MARINOS (Migration) [2021] AATA 2073 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Georgios Marinos

CASE NUMBER:  1817301

HOME AFFAIRS REFERENCE(S):          BCC2017/1960854

MEMBER:John Cipolla

DATE:11 May 2021     

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 11 May 2021 at 2.35pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – occupation of Painting Trades Worker – skills, qualifications and employment background required for the nominated occupation – evidence of relevant work experience – previous employment within the tourism industry – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 359
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 7 June 2018 to refuse 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 (hereinafter referred to as the applicant) applied for the visa on 2 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).

4. Recourse to the delegates decision record indicates as follows:

   “Paragraph 457.223(4)(da) states in full that:

   the applicant has the skills, qualifications and employment background that the Minister
   considers necessary to perform the tasks of the nominated occupation;

   On 27/06/2017, the applicant was requested to provide documents in support of their
   application to demonstrate that they have the skills, qualifications and employment
   background necessary to perform the tasks of the nominated occupation of ANZSCO 332211
   Painting Trades Worker by providing evidence that they have relevant qualifications and/or
   experience as specified in ANZSCO for the nominated occupation.

   The request indicated that the applicant should provide information, which could include:

   ● Evidence of his qualifications
   ● A copy of his CV
   ● Employment references. It was noted in the request that employment references should
   meet the following requirements:
   ● the reference should be on the official letterhead of the company or government
   department providing the reference
   ● the letterhead should indicate clearly the full address of the company and any
   telephone, fax numbers, email and website addresses
   ● the name and position of the person authorised to sign the employment reference
   should be typed or stamped below that person's signature – a reference with only an
   illegible signature will not be accepted
   ● the direct contact number of the person writing the reference should be included in the
   letter
   ● the letter should indicate the exact period of employment, including whether permanent
   or temporary, full or part time, position/s held, the main five (5) duties undertaken, and
   the salary earned – positions should not be described by generic titles (for example,
   research officer, public servant) but according to the nature of the duties undertaken (for example, research chemist, accounts clerk).

   Other documents which may assist you in evidencing your work experience claims could
   include, but are not limited to:

   ● contracts
   ● pay slips
   ● tax returns
   ● group certificates
   ● superannuation information.

   The primary applicant provided the following documentation in support of their application:

   ● An Australian Certificate III in Painting and Decorating – it is noted that the applicant
   obtained this qualification through recognition of prior learning (RPL), rather than
   through study in Australia
   ● A number of testimonials from overseas clients attesting to his painting skill. It is noted
   that these documents have been provided in English only, and there appear to be no
   original language copies.

   I have taken into consideration the fact that the applicant holds a qualification purportedly
   meeting the AQF skill level for the nominated occupation (a Certificate III in Painting and
   Decorating). However, after consideration of the evidence provided and the applicant’s
   history with the Department, I cannot be satisfied that this demonstrates sufficient evidence
   toward the applicant’s skill level. According to the Department’s Procedural Instructions, in
   relation to demonstration of skills, an applicant must show they hold the relevant Australian
   qualification for the nominated occupation and that this qualification was gained by studying
   in Australia.

   As the applicant’s qualification has been obtained through RPL, he has not gained his
   qualification through studying in Australia. I am therefore unable to accept the qualification
   as sufficient evidence of the applicant’s skill level, particularly given there has been no
   information provided as to how the applicant obtained the qualification through RPL, given
   the paucity of information contained within the employment references/attestations he has
   provided.

   I have considered the employment references provided by the applicant; however, without
   further independently verifiable evidence to substantiate the claims made within the
   documents (such as evidence of the applicant’s self-employment, or other documentation as
   suggested in the request for further information), I find that I can place little weight on these
   documents as evidence that the applicant has at least three years of work experience in the
   nominated occupation. Furthermore, although the references have been provided from a
   country where the main language is not English, I note that the references are in English
   only, and there appear to be no original language copies.

   Although the applicant has previously held a 457 visa, the occupation in which the applicant
   was employed was not that of a Painting Trades Worker. Furthermore, from the information
   provided in support of the application, the applicant’s employment prior to receiving his visa
   in 2004 was within the tourism industry in Greece. During the course of his previous 457
   visa, the applicant also indicated that he was working within the hospitality industry on his
   incoming and outgoing passenger cards. As no substantive information has been provided to
   establish in what role the applicant was employed, I find that given the conflicting details of
   his employment that I can place little weight on the statements provided by the applicant in
   support of his skills.

   Therefore, based on the evidence and information submitted to date, I am not satisfied
   that the primary applicant has demonstrated that they have the skills, qualifications and
   employment background necessary to perform the tasks of the nominated occupation.
   Consequently, I am not satisfied that paragraph 457.223(4)(da) has been met.”

5. On 21 March 2021 the Tribunal wrote to the applicant under s.359(2) of the Act inviting the applicant to provide information. The letter noted the following.

   I am writing on instruction from the Member conducting your review, in relation to the
   application for review made by you in respect of a decision to refuse to grant a
   Temporary Business Entry (Class UC) visa.
   You are invited to provide the following information in writing:

   • Current information about your skills, qualifications and employment

   background. Without limiting the types of information and/ or documents you can provide, the following may assist you in demonstrating that you can perform the tasks of the nominated occupation:
   with supporting evidence.
   evidence from your employers.

   • Information about all the qualifications that you have completed, together
   • Information about your employment history, together with supporting
   • Information about any other skills you have acquired which is relevant to your nominated occupation.

6. The due date for the provision of this information was 7 April 2021. As at 11 May 2021 no response has been forthcoming and in the circumstances the applicant has lost his right to a review hearing and the Tribunal is able to proceed to decision.

7. As has been noted the applicant was sponsored by his nominating employer to work as a Painting Trades Worker ANZSCO 332211.

8. The applicant was invited by the Department at the time of processing his visa application to provide evidence that he had the skills, qualifications and experience necessary to enable him to perform the tasks of the nominated occupation.

9. Th applicant was given an exhaustive list of the types of evidence that would assist the Department in making this determination.

10. The only evidence that the applicant provided in response to the Departmental request was an Australian Certificate III in Painting and Decorating obtained through recognition of prior learning, and not through the completion of study in Australia, and a number of testimonials from overseas clients attesting to his painting skills.

11. The applicant has provided no additional evidence pertaining to his skills, qualifications and experience to the Tribunal at review.

12. Recourse to ANZSCO indicates the following for a Painter Trades Worker. 

    UNIT GROUP 3322 PAINTING TRADES WORKERS

    PAINTING TRADES WORKERS apply paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures.

    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)

    Tasks Include:

    a.erecting scaffolding and ladders, and placing drop sheets to protect adjacent areas from paint splattering

    b.preparing surfaces by removing old paint and wallpaper, fixing woodwork, filling holes and cracks, and smoothing and sealing surfaces

    c.selecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives

    d.applying paints, varnishes and stains to surfaces using brushes, rollers and sprays

    e.hanging wallpaper, matching patterns and trimming edges

    f.cleaning equipment and work areas

    g.may repair windows and replace glass in wooden and metal frames

    h.may lay and repair wall and floor tiles

    
    Occupation:

    332211 Painting Trades Worker

13. There has been no evidence that the applicant meets the threshold qualification for this occupational group in Australia which requires that the applicant has completed studies in an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3). The applicant obtained his Certificate III through recognition of prior learning and not through the completion of studies in Australia as stipulated by the ANZSCO for this occupational group.

14. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    John Cipolla
    Senior Member