Radhakrishnan (Migration)

[2022] AATA 4699

Radhakrishnan (Migration) [2022] AATA 4699 (15 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Radhika

Radhakrishnan

Mr Ranju Vadachirappattu Thomas
Miss

Meghna Ranju

CASE NUMBER:  1931010

HOME AFFAIRS REFERENCE(S):          BCC2018/6203508

MEMBER:Amanda Mendes Da Costa

DATE:15 December 2022

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 482.211 of Schedule 2 to the Regulations.

The Tribunal considers that the applications of the second and third named applicants should be reconsidered on the basis that they are members of the family unit of a person who meets the primary criteria for the grant of a Temporary Skill Shortage (Class GK) visa.

Statement made on 15 December 2022 at 9.16am

CATCHWORDS  
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Motor Mechanic (General) – substantial compliance with previous visa conditions – must not work in inconsistent position or occupation – co-directors of the nominating company – positive skills assessment – ancillary tasks – decision under review remitted

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.211; Schedule 8, Condition 8107

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 15 October 2019 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 16 January 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 Medium-term stream to work in the nominated occupation of Motor Mechanic (General) 321211.

3. The delegate in this case refused to grant the visa on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 482.211 of Schedule 2 to the Regulations because the applicant had not complied substantially with Condition 8107 which was attached to her last substantive visa, a subclass 457 visa.

4. Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 14 December 2022 to give evidence and present arguments.

5. The Tribunal has considered the material in both the Departmental and Tribunal files.

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 meets the requirements of cl 482.211 of Schedule 2 to the Regulations.

   Substantial compliance with previous visa conditions

8. Clause 482.211 requires the applicant, if in Australia, to have complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

   Background

9. The applicant was nominated for the position of Motor Mechanic (General) ANZSCO 321211 on 14 January 2015 by her nominator MY MECHANIC COBUG (VIC) PTY LTD (My Mechanic).  On 16 January 2015 the applicant was granted a subclass 457 visa to work as a Motor Mechanic (General).  This visa ceased on 16 January 2019.

10. The applicant’s subclass 457 visa included a condition 8107(b) which required that the applicant must not work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted.

11. In their decision, the delegate acknowledged that the applicant might be performing some of the tasks of the nominated occupation but also noted that the applicant and her husband were co-directors of the nominating company.  The delegate found that as a director, the bulk of the applicant’s time (whilst on the subclass 457 visa) was spent on trying to build the business and managing its day-to-day affairs which was inconsistent with the tasks of the nominated occupation.

12. In support of the visa application, on 5 May 2020 the applicant provided the Department with an Explanatory Memorandum regarding the genuineness of the nominated position.  The submissions made in this Memorandum may be summarised as follows:

    ·The applicant was the first woman in her college to study the automotive course.

    ·Upon graduation, she experienced difficulties in gaining employment as a mechanic because of prejudice and discrimination against her as a female mechanic.

    ·The applicant eventually gained employment as a mechanic on a part-time basis in the My Mechanic business at 10 Gaffney Street, Coburg.  However, the then owners of the business failed to pay her the required salary due to financial difficulties and decided to sell the business.

    ·In 2013, the second named applicant decided to buy the business.  However, at the time of purchase, he was not ready to leave his full-time employment elsewhere as the applicants needed his income to support them while they grew the business.

    ·Soon after they purchased the business, the applicants hired a mechanic who although lacking in formal qualifications was very experienced.

    ·The applicant and the employee mechanic operated the business, with the employee being responsible for financial management, customer relations and dealing with suppliers and the applicant being responsible for undertaking the mechanical repairs.

    ·The applicants subsequently discovered that their employee was stealing rom the business and overcharging clients.  They reported his behaviour to police and terminated his employment.

    ·The applicants then employed a series of mechanics who each turned out to be unsuitable and their employment was also terminated.

    ·Due to their employees’ poor work performance and competition from the former owners of the business, the applicants experienced financial difficulties and the business was losing money.  The second named applicant resigned his job to manage the financial and administrative aspects of the business, leaving the applicant to undertake the mechanical repairs.

    ·At one stage, the applicants decided to sell the business as they were “broken”, and creditors were chasing them for money.  The landlord came and locked the business premises due to their failure to pay the rent.

    ·After advertising the business for sale, the applicants were introduced to the Victorian Automotive Chamber of Commerce (VACC) with which they became associated.  Through this association the business has increased its client base and has significantly improved its profitability.  The VACC has provided the applicants with assistance with marketing the business.

    ·The applicant’s current role is to provide diagnostic assessments and advice to customers and assign jobs to other mechanics.

    ·In January 2018 Australian Border Force Officers visited the business premises at 10 Gaffney Street, Coburg. The officer interviewing the applicant praised her role in the business as a female mechanic.

    ·In 2014 the applicant returned to India to be with family, for the birth of the applicant’s child.  The applicant returned (from maternity) leave to work in the business in June 2015.  However, suffering a back injury in January 2016 she returned to India to be cared for by her family and convalesce.  The applicant returned to work in May 2016.

    ·My Mechanic continues to operate its mechanical repair business and the applicants are making ongoing attempts to recruit suitably qualified and experienced mechanics to work in the business.

13. In support of the review application, the applicants provided a Skills Assessment by Trades Recognition Australia in relation to the applicant’s skills as a Motor Mechanic (General)[1].  In this Skills Assessment, the assessor notes that the assessment of the applicant’s skills was undertaken on a face-to-face basis on 22 September at the premises at 10 Gaffney Street, Coburg.

    [1] TRA Reference Number TRA11/999276660

14. The assessor further notes that they observed the applicant performing tasks consistent with those of the nominated occupation. The assessor states:

    I observed the participant performing a variety of tasks to Australian standards. She was able to work safely and complete her job within the allocated time.  She was organized and clam while carrying out her assigned tasks, used the workshop manual when required and selected the correct tools for the job.  Radhika works independently on many servicing and repair jobs and is working to a high standard.  

    It is my opinion as the assessor that the participant has the trade skills required to be working as a motor mechanic.

    Applicants’ evidence at hearing

15. The applicants confirmed the information contained in the Explanatory Memorandum regarding the applicant’s work history and their purchase and joint operation of the My Mechanic business.

16. They conceded that although during the period of the applicant’s previous subclass 457 she was involved in tasks including preparing and reviewing quotes and invoices, answering customer’s telephone and in person inquiries and diagnosing mechanical problems to be worked on by other mechanics.  However, they explained that the applicant used her skills and experience as a mechanic in assessing the work and costs involved to prepare and review quotes and invoices, answering customers queries regarding mechanical repairs and vehicle performance, speaking to suppliers about required spare parts and diagnosing mechanical problems and vehicle servicing requirements.

17. They further explained that in addition to the above tasks, the applicant was involved in undertaking mechanical repairs to customer’s vehicles.

    Findings

18. Based on Departmental movement records and the applicant’s oral evidence, the Tribunal is satisfied that the applicant is in Australia.

19. Departmental records indicate that the applicant’s last held substantive visa was a subclass 457 visa which operated from 16 January 2015 to 16 January 2019.  The conditions attached to this visa included Condition 8107(b) which required that the applicant must not work in a position or occupation inconsistent with the position or occupation in which the visa was granted.

20. The Tribunal accepts from the applicant’s TRA Skills Assessment that the applicant is a suitably qualified and skilled mechanic.  It is further satisfied that although the applicant undertook tasks including invoicing, answering telephones, and dealing with trade suppliers during the period of her previous subclass 457 visa, she was working as a mechanic and was therefore not working in a position or inconsistent with her nominated occupation.  The Tribunal accepts the applicants’ evidence and is satisfied that during that visa the applicant was working in the My mechanic business in the nominated occupation.

21. The Tribunal is satisfied the tasks undertaken by the applicant were commensurate with those set out in the ANZSCO dictionary for the occupation of Motor Mechanic (General).   

22. Although the ancillary tasks undertaken by her did not directly involve the applicant undertaking mechanical repairs, the Tribunal is satisfied that the applicant’s skills and experience as a Motor Mechanic contributed to her performance of these tasks. 

23. For these reasons, the Tribunal is satisfied that the applicant has complied substantially with Condition 8107 and therefore cl 482.211 is met.

24. The Tribunal considers that the applications of the second and third named applicants should be reconsidered on the basis that they are members of the family unit of a person who meets the primary criteria for the grant of the visa.

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

    decision

26. 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 482.211 of Schedule 2 to the Regulations.

27. The Tribunal considers that the application of the second and third named applicants should be reconsidered on the basis that they are members of the family unit of a person who meets the primary criteria for the grant of a Temporary Skill Shortage (Class GK) visa.

    Amanda Mendes Da Costa
    Member