Som (Migration)

[2023] AATA 3346

Som (Migration) [2023] AATA 3346 (4 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yo Han Som

REPRESENTATIVE:  Mr Dow Woo Park (MARN: 0741800)

CASE NUMBER:  2109222

HOME AFFAIRS REFERENCE(S):          BCC2020/2174938

MEMBER:Namoi Dougall

DATE:04 September 2023

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;

·cl 482.231 of Schedule 2 to the Regulations; and

·cl 482.233 of Schedule 2 to the Regulations.

Statement made on 04 September 2023 at 4:09pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Wall or Floor Tiler – applicant has worked in the nominated occupation for at least 2 years – applicant has the skills and employment background to perform the tasks  – decision under review remitted   

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.212, 482.231, 482. 233

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 1 July 2021 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 26 August 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 Wall or Floor Tiler.

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 482.212(3) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had the relevant skills, qualifications and work experience due to the lack of evidence.

4. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation and whether he is employed to work in his sponsor’s business.

Applicant’s skills, qualifications and employment background

1. Clause 482.212(3) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl 482.212(4), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.

2. On 26 August 2020, the applicant lodged a Subclass 482 visa application in which he specified the nominated occupation as Wall or Floor tiler (ANZSCO 333411).

3. The nomination related to the applicant’s Subclass 482 visa application (Application ID: EGOQ7PGYC3) was lodged by Bear Stone & Tile Pty Ltd (the nominating buisness) and was approved on 28 January 2021.

4. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) specifies that the indicative skill level of a Wall or Floor Tiler is commensurate with an AQF Certificate III including at least 2 years on the job training or AQF IV. At least three years of relevant experience may substitute for a formal qualification.

5. In his visa application the applicant sated that he worked from 28 August 2018 to 31 July 2020 in the nominated occupation with Milestone Tiling Pty Ltd (Milestone). From 3 August 2018 he worked for the nominating business.

6. In relation to his employment with Milestone the applicant provided to the Tribunal the following:

• a work reference from Jae Kim. Director of Milestone dated 19 April 2021 which confirmed that he was employed for 28 August 2018 to 27 July 2020 as a tiler. The letter also set out his duties.

• Income statement for the tax years ending 30 June 2020 and 2021 which indicated that the applicant earned $55,710 and $6,330 respectively.

1. In relation to his work at the nominating business the applicant provided to the Tribunal the following:

• Certificate of Employment dated 8 August 2023 provided by Daniel Lee, director of the nominating business which stated that the applicant had worked for the nominating buisness as a Tiler since 1 July 2020 and his employment is full time and ongoing.

• Income statements for the tax years ending 30 June 2021 and 2022 and 2023. The amount earned by the applicant was $25,200, $52,500 and $44,100 respectively.

• Payslips issued by the nominating business for the applicant from 15 June 2023 to 28 June 2023 indicating that the applicant is employed on a 38 hour week on a rate of $27.6316 per hour.

1. Also provided was the applicant’s Notices of Assessment for the tax years ending 30 June 2019 to 30 June 2022.

2. On the evidence the Tribunal is satisfied that the applicant has worked as a Wall and Floor Tiler for Milestone for a period of 1 year and 11 months and for the nominating buisness from 1 July 2020 until now a period of more than 3 years. Therefore, the Tribunal is satisfied that the applicant has the applicant has the skills and employment background to perform the tasks of a Wall or Floor Tiler.

3. For these reasons the applicant meets the requirements of cl 482.212(3).

Requirement to have worked for at least 2 years

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

2. On the evidence referred to above, the Tribunal is satisfied that the applicant has worked in the nominated occupation or a related field for at least 2 years.

3. For these reasons, cl 482.231 is met.

Requirements relating to employment in the nominated occupation and position

1. Clause 482.233 requires that either the applicant’s nominated occupation is specified in an instrument, or that the applicant is employed to work in the nominated occupation. In the latter case, the employment must be in a position in the sponsor’s business or in an associated entity’s business. The applicant may only be employed in an associated entity if, at the time the nomination was approved, the sponsor was not an overseas business sponsor.

2. The occupation of Wall or Floor Tiler is not an occupation specified in the relevant legislative instrument LIN 19/212, therefore, the applicant is required to work in a position in the sponsor’s business or related entity.

3. On the evidence the Tribunal is satisfied that the applicant is employed to work in the nominated occupation of Cabinet Maker and that the employment in that position is in the nominating business which is the sponsoring business.

4. For these reasons the applicant meets the requirements of cl 482.223.

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

DECISION

1. 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;

   ·cl 482.231 of Schedule 2 to the Regulations and

   ·cl 482.233 of Schedule 2 to the Regulations.

Namoi Dougall
Member