Moreto Goncalves (Migration)

[2024] AATA 1065

Moreto Goncalves (Migration) [2024] AATA 1065 (4 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Amanda Moreto Goncalves

REPRESENTATIVE:  Mr Anthony Wally Takchi (MARN: 0639252)

CASE NUMBER:  2212849

HOME AFFAIRS REFERENCE(S):          BCC2021/1554843

MEMBER:De-Anne Kelly

DATE:4 April 2024

PLACE OF DECISION:  Brisbane

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 482.231 of Schedule 2 to the Regulations.

Statement made on 04 April 2024 at 2:27pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Architect – 2 years’ work experience in related field – employment reference letters – Architectural Draftsperson – job description – ANZSCO tasks description – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 19 August 2022 to refuse to grant the visa 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 10 August 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 Architect – 232111 with their sponsor Urban Link Pty Ltd.

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 482.231 of Schedule 2 to the Regulations because there was insufficient evidence that the applicant had worked in the nominated occupation or a related field for at least two years. This was because the employment reference letters evidenced that the work was undertaken at the lesser skill level of Architectural Draftsperson including the work at Urban Link Pty Ltd.

4. The applicant was to appear before the Tribunal however comprehensive material was submitted by the agent in a professional manner which allowed it to make a decision in favour of the applicant on the basis of the material before it and as such s360(2)(a) applies in this case.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant satisfies cl 482.213 which provides as follows.

   482.231

   The applicant has worked in the nominated occupation or a related field for at least 2 years.

   Requirement to have worked for at least 2 years

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

9. The CEO and Architect of the company Urban Link which employs the applicant states that she has been employed from 1 November 2020 as an Architect on s full-time basis.  Payslips and personal Tax returns were provide as evidence to support this claim.

10. A job description was also provided as follows.

    ·Collaborate and take direction from senior personnel, undertaking actions in the best interest of organisational progress and vested interests.

    ·Review project deliverables for alignment with documentation standards and Project Modelling Guides and Project Execution Plans.

    ·Set up projects and workflows to project scope requirements.

    ·Deliver training and support to staff, including documentation standards, model management, inductions, and workflow changes.

    ·Provide complete project documentation for schemes, proposals, and projects.

    ·CAD drafting

    ·Review plans and complete a detailed check of all sheets and consultants' reports before submission.

    ·Assist in the response to Requests for Information (RFI’s).

    ·Communicate with consultants to request constant updates on outstanding reports ensuring timely release of the required documentation.

    ·Take ownership to utilise all necessary functions of Total Synergy software to ensure accurate company and project data is gathered.

11. The ANZSCO tasks for Architect are as below.

    ARCHITECTS AND LANDSCAPE ARCHITECTS design commercial, industrial, institutional, residential and recreational buildings and landscapes.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Registration or licensing may be required.

    Tasks Include:

    oobtaining advice from clients and management to determine type, style and size of planned buildings and alterations to existing buildings

    oproviding information regarding designs, materials and estimated building times

    opreparing project documentation, including sketches and scale drawings, and integrating structural, mechanical and aesthetic elements in final designs

    owriting specifications and contract documents for use by builders and calling tenders on behalf of clients

    oconsulting with Professionals and clients about external area designs, costs and construction

    ocompiling and analysing site and community data about geographical and ecological features, landforms, soils, vegetation, site hydrology, visual characteristics and human-made structures, to formulate land use and development recommendations, and for preparing environmental impact statements

    opreparing reports, site plans, working drawings, specifications and cost estimates for land development, showing location and details of proposals, including ground modelling, structures, vegetation and access

    oinspecting construction work in progress to ensure compliance with plans, specifications and quality standards.

12. While acknowledging the delegates concerns over whether the applicant has been working at the level of Architect the Tribunal finds that broadly the tasks of the nominated position do correspond with the ANZSCO tasks of Architect and that she has been working in the position since 1 November 2020 or some 3 years and 4 months full-time.

13. Taking all into account the Tribunal finds that the applicant has worked in the nominated occupation from November 2020 to the present or at least two years on a full-time basis.

14. For these reasons, cl 482.231 is met.

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

    DECISION

16. 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 482.231 of Schedule 2 to the Regulations.

    De-Anne Kelly
    Member