Morrissey (Migration)

[2022] AATA 4618

Morrissey (Migration) [2022] AATA 4618 (5 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sean Liam Morrissey

REPRESENTATIVE:  Ms Rowena Jane Hallam (MARN: 0429950)

CASE NUMBER:  2006795

HOME AFFAIRS REFERENCE(S):          BCC2020/139701

MEMBER:Nicola Findson

DATE:5 November 2022

PLACE OF DECISION:  Perth

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 05 November 2022 at 9:11pm

CATCHWORDS  
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Engineering Technologist – worked in the nominated occupation or a related field for at least 2 years – employment reference – 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 17 March 2020 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 23 January 2020. 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 Engineering Technologist (ANZSCO 233914).

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 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 was represented in relation to the review.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement to have worked for at least 2 years

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

8. The delegate found that the applicant did not meet the requirements for the visa, because there was insufficient evidence before her to demonstrate the requirements of cl 482.231. The delegate’s decision (which accompanied the applicant’s application for review) records that the delegate considered the material provided by the applicant in support of his visa application, including a resume as well an employment reference from Fleury Engineering dated 6 March 2020, evidencing his full time employment in the nominated role between July and November 2017.  However, in circumstances where there was no evidence to confirm his claimed employment with his current sponsor since July 2018, the delegate was not satisfied the applicant had provided evidence of working for a period of 2 years in the nominated role of Engineering Technologist.

9. On 7 April 2020 the applicant’s representative, provided a written submission, with accompanying documents (including employment references), to the Tribunal.  The submission clarifies that the applicant has worked in the nominated occupation both for his sponsoring employer, Pipeweld Labour Solutions Pty Ltd since July 2018, as well as for Fleury Engineering from July 2017 to November 2017.  The submission explains that although an employment reference from Fleury Engineering accompanied the visa application, an employment reference from Pipeweld Labour Solutions Pty Ltd was not included with the application, due to an oversight on the part of the representative.  

10. The material before the Tribunal confirms that the applicant worked between July and November 2017, on a full-time basis, as an Engineering Technologist for Fleury Engineering.  A letter of reference dated 6 March 2020 from Managing Director, Mr Mark Fleury, confirms the applicant’s claimed position and work experience during this period.  In addition, a letter of reference dated 21 January 2020, from Mr Billy O’Connor of Pipeweld Labour Solutions Pty Ltd, which was not before the delegate at the time of her decision, confirms the applicant’s position and full-time work experience with the nominating employer since July 2018. 

11. On the basis of the evidence before it, the Tribunal is satisfied that the applicant’s failure to provide all of the relevant evidence in support of his claimed work experience at the time of application was a mistake on the part of his migration agent.  The Tribunal has considered the evidence before it of the work experience of the applicant as an Engineering Technologist both at Fleury Engineering in 2017 and at Pipeweld Labour Solutions Pty Ltd since 2018.  The Tribunal is satisfied, on this evidence, that the applicant has worked in the nominated occupation for at least 2 years.

12. For these reasons, cl 482.231 is met.

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

    decision

14. 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.

    Nicola Findson
    Member