Tarantino (Migration)

[2021] AATA 4954

Tarantino (Migration) [2021] AATA 4954 (7 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luca Tarantino

CASE NUMBER:  1823520

HOME AFFAIRS REFERENCE(S):          BCC2018/2595775

MEMBER:C. Packer

DATE:7 October 2021

PLACE OF DECISION:  Melbourne

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 7 October 2021 at 12:50pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – 2 years’ work experience in related field – Tiler – work references – PAYG payment summary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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 3 August 2018 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 11 July 2018. 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 and 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 482.231 of Schedule 2 to the Regulations. A large volume of documents and information before the Tribunal, including information most recently provided in September 2021, satisfied the Tribunal that the requirements had been met. For that reason the Tribunal did not proceed to a hearing. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. Clause 482.2 provides that “All criteria must be satisfied at the time a decision is made on the application.”

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

7. Relevant policy considerations contained in Policy: [Sch2Visa482] Temporary Skill Shortage visa (subclass 482) – visa applications, indicate in part:

   4.4.1  Work experience

   Under clause 482.221 and 482.231, visa applicants are required to have worked in the nominated occupation, or a related field, for at least two years.
   This requirement is aimed at ensuring visa applicants are highly skilled and have experience in the occupation (or a related occupation), and can quickly contribute that experience into the Australian workforce.
    As a result, the intention is that any work experience completed, subject to the Industry Specific Advice below, including in relation to vocational placements, must be completed while:

   ·             working in the nominated occupation; or

   ·             performing tasks at the same skill level in a related field.

   Under policy, it is expected that the work experience should have been undertaken on a full-time basis in the last five years. This period does not need to be continuous. Decision-makers may also consider work undertaken as a part-time employee that is equivalent to two years full-time, where they are confident that the applicant’s experience and skills are relevant and current.

   ·             Consistent with the National Employment Standards (NES), employment will be considered ‘full-time’ where the visa applicant worked 38 hours per week.

   ·             Work experience will, however, also be considered ‘full-time’ where the visa applicant worked for a period between 32 and 45 hours per week under an industry award or an agreement that was consistent with the NES where applicable.

   ·             Decision-makers should also be aware that there are a variety of prevailing work arrangements in the Australian labour market that do not adhere to a standard work week and contact Program Management if they require further advice.

8. The applicant’s resume shows his work experience:

   ·9/2006 to 1/2011:       Employer Ugo Pons, as tiler (mainly), painter, bricklayer

   ·6/2011 to 4/2016:       self employed as tiler and bricklayer

   ·5/2016 to 10/2016:      Amalfi Mosaics, as swimming pool tiler

   ·11/2016 to 4/2017:     Rivendale International, as swimming pool tiler

   ·5/2017 to date:           Amalfi Mosaics, as swimming pool tiler

9. To support his work experience he provided references:

   ·Reference Ugo Pons: applicant worked from 9/2006 to 1/2011 as an apprentice and then as a professional tiler

   ·Reference Showpiece Pools dated 22/7/2021: applicant has worked on their projects for the last few years; he is “most talented, competent and most professional to date”

   ·Reference Sunshine Australia dated 15/9/2021: applicant “is currently employed by Amalfi Mosaics Pty Ltd and will continue to be employed in a full-time position of tiler as per the approved nomination”

10. Additional information that supports his work experience includes:

    ·PAYG payment summary 2018 $62,243 Amalfi Mosaics

    ·PAYG payment summary 2019 $63,143 Amalfi Mosaics

    ·Payslip 24/6/2020 shows salary paid $63,393 Amalfi Mosaics

    ·PAYG payment summary 2021 $71,560 Amalfi Mosaics

    ·Payslips 2018 to 2021

    ·Tax returns 2016 to 2021: they show work as a tiler, other than 2017 ‘labourer’

11. The applicant provided copies of his qualifications:

    ·Qualification (Italy)- ‘ASSEMBLER AND MAINTENANCE TECHNICIAN - COMMAND AND CONTROLS’ dated 18/4/2017

    ·Certificate III Wall & Floor Tiling, issued 1/9/2021 by Noble Training Group, qualification recognised within the Australian Qualifications Framework

12. In sum, the foregoing information and documents satisfies the Tribunal that the applicant has worked mainly as a tiler in Italy from 9/2006 to 4/2016, albeit he also did other tasks as a painter and bricklayer. In Australia he has worked as a swimming pool tiler from 5/2016 to the present. His work as a tiler from 5/2016 to 5/2017 is not well documented. However, in light of the PAYG payment summaries, ATO tax returns, and payslips, the Tribunal is satisfied the applicant has worked as a full-time tiler for Amalfi Mosaics for the past several financial years 2018, 2019, 2020 and 2021. Together with the reference from Sunshine Australia dated 15/9/2021 the Tribunal is satisfied his employment as a tiler is ongoing.

13. In light of the applicant’s work experience in Italy and Australia, and in particular since 2018, the Tribunal is satisfied the applicant has worked in the nominated occupation or a related field for at least 2 years. For these reasons, cl 482.231 is met.

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

    DECISION

15. 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

    C. Packer
    Member