Scala (Migration)

[2024] AATA 3057

Scala (Migration) [2024] AATA 3057 (16 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mariano Scala

REPRESENTATIVE:  Ms Rebecca Santaera (MARN: 1173748)

CASE NUMBER:  2200891

HOME AFFAIRS REFERENCE(S):          BCC2021/578377

MEMBER:Karen McNamara

DATE:16 August 2024

PLACE OF DECISION:  Sydney

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 482.212(3) of Schedule 2 to the Regulations.

Statement made on 16 August 2024 at 3:07pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – carpenter – skills, qualifications and employment background – documentation and oral evidence from applicant, employer and colleague – previously a subcontrator, now an employee – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(3)

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 2022, to refuse to grant Mr Mariano Scala (the 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 22 April 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 Carpenter (ANZSCO 331212).

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.212(3) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

4. The applicant lodged an application for review with the Tribunal on 24 January 2022. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

5. On 16 February 2024, the representative on behalf of the applicant submitted to the Tribunal copies of the applicant’s payslips, EWP operator and construction induction cards, employment reference (Coco Cladding), Notice of Assessments (FY’s 2022 & 2023), resume and written submission by the representative.  

6. The applicant’s review application was constituted previously to a different Member, who is no longer available to consider this matter. Hearings were scheduled by the former Member in May 2024. The applicant’s review application was reconstituted to the current Member on 6 June 2024.

7. On 31 July 2024, the representative provided to the Tribunal numerous payslips attesting to the applicant’s employment with Coco Building Group Pty Ltd.

8. On 8 August 2024, Mr Mariano Scala appeared before the Tribunal via Microsoft Teams video conference, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Vincent Cocomello, who is the applicant’s employer and Mr Callum Scrimgeour, the applicant’s work colleague.

9. The Tribunal exercised its discretion to hold the hearing by video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant and witnesses were given a fair opportunity to give evidence and present arguments.

10. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

11. The Tribunal notes that numerous evidence and submissions were lodged by the applicant to the Tribunal and Department. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant meets the requirements of cl.482.212(3) of schedule 2 to the Regulations.

    Applicant’s skills, qualifications and employment background

14. Clause 482.212(3) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

15. The primary decision record shows that the delegate formed the view, that at the time of application, the applicant did not have the qualifications and employment experience commensurate with the skill level specified in ANZSCO for the nominated occupation of Carpenter (ANZSCO 331212). The delegate found on the information before them, that the applicant had not provided sufficient evidence to support his employment claims. In the absence of independently verifiable evidence to support said claims, the delegate found that the applicant did not adequately demonstrate that in lieu of formal qualifications, he satisfied at least three years of relevant employment experienced as specified under ANZSCO for the nominated occupation of Carpenter. The delegate therefore found that the applicant did not satisfy the requirements of cl.482.212(3), therefore not meeting cl.482.212.

16. At the hearing the Tribunal discussed with the applicant his employment history and specific tasks undertaken during said employment. Details of the applicant’s employment in the occupation of Carpenter and description of the tasks undertaken by the applicant, were supported by his employer, Mr Cocomello and work colleague Mr Scrimgeour.

17. Post hearing the applicant provided to the Tribunal copies of the applicant’s employment contract (including variation dated 15 January 2024) and Income Statements for financial years 2022, 2023 and 2024.

18. The Tribunal has considered the entirety of the information before it and accepts the evidence before it supporting the applicant’s skills, experience and work history in the nominated occupation of Carpenter. This information was not before the delegate at the time of their decision over three years ago. The evidence supports that the applicant has now been employed in the occupation of Carpenter with Coco Building Group Pty Ltd for over three years.

19. On the basis of the evidence before it, the Tribunal acknowledges that the applicant has been employed as a Carpenter with Coco Building Group Pty Ltd since March 2021. Evidence before the Tribunal shows that the applicant was previously engaged by his current employer on a subcontractor basis, providing carpentry services. The Tribunal is therefore satisfied that the applicant has the requisite skills and experience to perform the tasks of the nominated occupation of Carpenter (as specified under ANZSCO 331212).

20. Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl 482.212(3).

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

    DECISION

22. 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 482.212(3) of Schedule 2 to the Regulations.

    Karen McNamara
    Member