Mendes Pierre Andre (Migration)

[2021] AATA 2933

Mendes Pierre Andre (Migration) [2021] AATA 2933 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Alexandre Mendes Pierre Andre
Ms Caroline Ribeiro Fracasso

CASE NUMBER:  1902533

HOME AFFAIRS REFERENCE(S):          BCC2018/1277242

MEMBER:John Cipolla

DATE:17 June 2021    

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl 457.223(4)(da) of Schedule 2 to the Regulations

Statement made on 17 June 2021 at 3.39pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Glazier – necessary skills, qualifications, and experience – Certificate III in Glass and Glazing – at least 3 years of relevant experience – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 18 January 2019 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 16 March 2018. 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl 457.223(4)(da) because the delegate determined that the applicant did not have the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation of Glazier.

4. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation of Glazier.

7. The delegate had regard to ANZSCO and determined that the applicant did not meet the qualification and experience requirements for the nominated occupation of Glazier.

8. The delegate noted that the applicant had:

   “…qualification in Logistics and a Bachelor Degree in Business Administration. While these qualifications are at a sufficiently skilled level, I do not consider them to be relevant to the nominated occupation of Glazier.

   The applicant holds an AQF Certificate III in Glass and Glazing. This qualification is relevant
   to the nominated occupation. I note, however, that the qualification provided was issued in
   May 2018, after the application was lodged in March 2018. It is unclear how this qualification
   was attained, as the applicant indicates in his resume that he had been working only part time for the sponsor, Tough Glass, since 13 April 2016, and during the period he was
   on a student visa to study Accounting Administration. Therefore, it does not appear that
   the applicant had sufficient time to attend classes for the Certificate III, nor does he have
   sufficient experience with Tough Glass to attain the certificate through recognition of prior
   learning. Additionally, the qualification does not indicate whether the applicant received the qualification on the basis of study, or through recognition of prior learning.

   I must also take into consideration any on-the-job training undertaken by the applicant in
   relation to the Certificate III. The applicant's resume and reference letter provided indicate
   that the applicant was employed as a 'Glazier / Glass processor'. While I note that the
   position of Glazier is consistent with the nominated occupation, the occupation of Glass
   Processing Worker 839916 is a lower skill level occupation not specified by the Minister
   in the relevant instrument (IMMI 18/004: Specification of Occupations - Subclass 457
   Visa). This occupation, 'performs routine tasks in manufacturing glassware such as setting
   up, adjusting and repairing automatic machines and equipment, and checking weight of
   glassware'. Whilst the title of the role includes Glazier, I note that the duties of the position
   held appear to be more consistent with that of a Glass Processing Worker than a Glazier.
   I am not satisfied that this experience is at the level of a Glazier but are more in line with
   the significantly lesser skilled occupation of ANZSCO code 839916 - Glass Processing
   Worker. Whilst some of the skills may be transferable, I am not satisfied that the applicant
   has two years of on-the-job experience or that this experience would develop his skills to
   that of a Glazier in combination with the Certificate III. The applicant has not indicated in the
   application or supporting documents that he has any other experience that I would consider
   relevant to the nominated occupation.

   Furthermore, as the applicant does not have two years experience at an appropriate level, I
   am not satisfied that the applicant has three years relevant experience that may substitute for the qualification level outlined in ANZSCO for the nominated occupation.”

9. On 25 March 2021 the Tribunal wrote to the applicant under s.359(2) of the Act seeking information. The letter sought the following:

   ·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:

   ·Information about all the qualifications that you have completed, together with supporting evidence.

   ·Information about your employment history, together with supporting evidence from your employers.

   ·Information about any other skills you have acquired which is relevant to your nominated occupation.

10. In response to the letter the applicant provided a range of information. This included evidence of him having completed the Certificate III in Glass and Glazing. It also included a letter from the applicant’s employer Mr Jay Varsani the Managing Director of Tough Glass dated 8 April 2021. The letter notes that the applicant has worked for Tough Glass since 13 April 2013 to date and that he is employed as a Glazier. The letter makes reference to the key attributes of the position of Glazier, noting that the applicant performs each of these tasks proficiently and Mr Varsani also makes reference to the value that the applicant brings to the business because of his skillset.

11. The Tribunal has had regard to the ANZSCO definition of Glazier 333111 which states as follows:

    GLAZIERS measure, cut, finish, fit and install flat glass and mirrors.

    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.

    Tasks Include:

    odetermining type and dimensions of glass required

    olaying glass over patterns on padded tables and in jigs

    omeasuring and marking glass for cutting

    oexamining glass and marking defective areas

    ocutting along patterns and templates

    obreaking off sheets and excess glass with notched tools and glass pliers

    oinstalling glass and mirrors in windows, skylights, display cases, interior walls/ceilings

    osmoothing rough edges using belt sanders and smoothing wheels

    omay coat, cut, etch, trim and treat glass to achieve special effects

12. The applicant has worked for Tough Glass as a Glazier since 13 April 2016, a period of in excess of five years. Having regard to the letter provided by Mr Varsani, it is clear that the applicant has been engaged as a Glazier for this business for in excess of five years. Having regard to the qualifications and skills requirements, the applicant has at least 3 years of relevant experience along with a Certificate III in Glass and Glazing. 

13. The applicant has now provided evidence that indicates he possesses the requisite skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Glazier. This is clearly confirmed in the letter of Mr Jay Varsani from Tough Glass dated 8 April 2021.

14. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

15. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl 457.223(4)(da) of Schedule 2 to the Regulations

    John Cipolla
    Senior Member