SUMAN (Migration)

[2022] AATA 3691

SUMAN (Migration) [2022] AATA 3691 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Harpreet SUMAN

Mrs Mandeep KAUR

Master Jason SUMAN

REPRESENTATIVE:  Miss Vanessa De Pretis (MARN: 1388116)

CASE NUMBER:  2000318

HOME AFFAIRS REFERENCE(S):          BCC2019/5327874

MEMBER:Penelope Hunter

DATE:21 September 2022

PLACE OF DECISION:  Sydney

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 21 September 2022 at 4:15pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Motor Mechanic – applicant has two years’ experience in the nominated occupation prior to the visa application – applicant holds relevant qualifications – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 18 January 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 23 October 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).

3. Only the first named applicant, Mr Harpreet Suman (the applicant), is seeking to satisfy the primary criteria for the visa. The second and third named applicants are members of his family unit, and are seeking only to satisfy the secondary criteria.

4. 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. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Motor Mechanic (General).

5. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.231 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had worked in the nominated occupation or related field for at least 2 years.

6. The applicant only appeared via MS Teams video at a hearing before the Tribunal on 2 September 2022, to give evidence and present arguments. The applicants were represented in relation to the review, although the representative did not attend the hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 applicant holds non AQF qualifications as a Machine Operator- Automotive Mechanic, obtained in Lombardi Italy between 2006 and 2009. He has provided evidence that he then went on to work for Officina Elettrauto Landini Massimo from September 2009 to October 2011 as a mechanic. The relevant employment contracts submitted by the applicant to the Department list his position as an apprentice mechanic. As to his further work experience, the applicant worked  After this the applicant worked in the position of a warehouse manager from 2011 to 2018. Prior to the visa application the applicant had also worked in Australia in the nominated position for Auto Masters Victor Harbour for approximately 6 months.

10. In their decision record, a copy of which the applicant has submitted to the Tribunal, the delegate set out that they accepted that the applicant had provided evidence that he had worked as an apprentice mechanic in Italy. Yet the delegate placed weight on the fact that this experience was undertaken almost eight years before the visa application. After this it was noted that the applicant worked for seven years in the unrelated position of warehouse manager. While cl 482.231 of Schedule 2 did not explicitly state that the work experience had to be undertaken within the last 5 years of the visa application, this was the approach under Departmental policy guidelines. The delegate was not satisfied that in the circumstances it was appropriate to depart from these policy guidelines. It was considered that the majority of the applicant’s work experience was not current or relevant to the nominated position in the last 5 years, and the applicant was therefore not found to meet cl 482.231 of Schedule 2 to the Regulations.

11. Upon review, the applicant has provided considerable additional documentation for consideration by the Tribunal. This has included:

    ·Representative’s submissions dated 23 November 2021.

    ·Resume of the applicant.

    ·ANZSCO Guideline Unit Group Motor Mechanic.

    ·Contract between the applicant and nominating employer March 2021.

    ·Timesheets confirming the ongoing employment of the applicant.

    ·Payslips of the applicant

    ·Letter dated 30 June 2022, confirming the applicant’s employment from the state operations manager SA,  Auto Masters.

12. Over two and a half years has passed since the decision of the Department. The evidence before the Tribunal is that the applicant has continued to work in the nominated position of Mechanic. The letter of from the state operations manager of Auto Masters, sets out that in his role, the applicant undertakes the following duties:

    ·Diagnoses, repairs and overhauls engines, transmissions, components, electrical and fuel systems, etc. for range of different cars.

    ·Performs tune ups, brake jobs and other preventative maintenance.

    ·Test and repair electrical systems such as lighting, Instrumentation, ignition, and electronic fuel injection.

    ·Repairs exhaust, brakes, hydraulic, electrical suspension, and fuel injection systems in automotive vehicles.

    ·Reassemble, test, clean and adjust repaired or replaced parts or assemblies, using various instruments to make sure they are working properly and putting them back into the vehicle.

    ·Servicing of vehicles as per manufacturer's guidelines and manuals. Performing schedule maintenance services, including oil change, lubrication and engine tuning as per manufacturer specifications.

    ·Maintaining and managing tools, equipment, and machinery in good condition.

    ·Following occupational health and safety procedures.

    ·Cleanliness of the workshop, working with protective clothing and gear, and adherence to the work health and safety of others

    The Tribunal is satisfied that these are all duties consistent with the nominated occupation of mechanic.

13. The applicant had demonstrated that he has two years’ experience in the nominated occupation prior to the visa application. Although his contracts claim that he worked as an apprentice the applicant has provided evidence that he was actually working in the role of mechanic, but this lower classification was used by his employer in order to pay him at a lower rate. The Tribunal accepts that in any event it would be relevant experience in the occupation. While it is noted that it was eight years prior to the visa application, even if the Tribunal was not minded to give this experienced a full two years weighting, the evidence demonstrates that the applicant now has over three years further relevant experience in the nominated occupation in the position for which he is seeking sponsorship. That experience is current, and according to his employer the applicant has performed in the occupation satisfactorily. It is also accepted that the applicant holds relevant qualifications.

14. Having considered the evidence overall the Tribunal is satisfied that the applicant has demonstrated that he has, at the time of this decision, worked in the nominated occupation for at least two years full time.

15. For these reasons, cl 482.231 of Schedule 2 to the Regulations is met.

    Other matters

16. Upon review, the evidence submitted by the applicant of his relevant work experience disclosed that his place of employment had been assumed under the control of the Auto Masters head franchisor. In submissions to the Tribunal it was claimed that the applicant’s place of work, job description, salary, and all other conditions had not changed. The applicant confirmed this information at the hearing. It was further indicated that it was always the intention of Auto Masters Australia Pty Ltd to support the applicant in the visa. As the Tribunal proposes to remit the matter for reconsideration by the Minister in relation to the remaining visa criteria it does not consider it appropriate to make further findings in relation to other visa criteria. It will remain for the applicant to satisfy the Department as to the relevant employment relationship in a related business and applicable sponsorship.

17. The second and third named visa applicants have sought the visa as members of the family unit of the applicant, subject to his satisfaction of the primary visa criteria. As the Tribunal will remit the matter for the consideration of the remaining primary criteria in respect of the applicant, it follows that their review applications are also remitted for consideration of satisfaction of the secondary visa criteria. 

    decision

18. 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.

    Penelope Hunter
    Member