1409868 (Migration)

[2015] AATA 3830

1409868 (Migration) [2015] AATA 3830 (9 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sukhwinder Kaur Deol
Mr Gursewak Singh Deol
Ms Dilreet Kaur Deol

CASE NUMBER:  1409868

DIBP REFERENCE(S):  BCC2014/338934

MEMBER:Tim Connellan

DATE:9 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4) of Schedule 2 to the Regulations.

Statement made on 09 December 2015 at 4:16pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 5 February 2014.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visas on 20 May 2014 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied the applicant had completed 2 years on-the-job training to support her Certificate III in Painting and Decorating.

5. An application for review of the primary decision was lodged on 3 June 2014. A copy of the primary decision was included with the application.

6. The applicants were represented in relation to the review by their registered migration agent.

7. On 27 April 2015 the tribunal wrote to the applicant’s in accordance with the provisions of s.359(2) of the Migration Act. The applicant was invited to provide the following information in writing

   ·     information to demonstrate you are the subject of an approved business nomination that has not ceased as required by  cl.457.223(4)(a).

8. On 5 May 2015 the tribunal received a Notification of Approval Notice which had been approved 4 May 2015.

9. On 8 October 2015 the tribunal received a detailed submission which included : 

   ·     Sponsorship approval dated 16 May 2013 valid until 16 May 2016

   ·     Nomination approval dated form 82,015 valid until form 82,016

   ·     Certificate III in Painting and Decorating

   ·     Certificate IV in Building and Construction

   ·     ATO tax assessments for the applicant for the years 2012, 2013 and 2015 for her employment as a painter

   ·     Letters from the applicant’s current employer stating she had been employed and working as a painter since September 2011.

10. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant's favour on the basis of the material before it.  It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).

    Skills, qualification and employment background of the applicant

13. Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.  In addition, under cl.457.223(4)(e), 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.  In this case the nominated occupation is ‘Painting Trades Worker’.

14. The information before the Tribunal is that the applicant holds a passport of India.

15. The Tribunal notes that Trades Recognition Australia does not specify the occupation of ‘Painting Trades Worker’ as a nominated occupation. [1]

    [1]>

    The Australian and New Zealand Standard Classification of Occupations is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Painting Trades Worker’.  However the Tribunal has referred to ANZSCO to inform its consideration of whether the applicant has the skills necessary to perform the nominated occupation.

16. In considering the ANZSCO definition and tasks for the occupation of ‘Painting Trades Worker’ (Code 332211), which is part of the Unit Group 3322 Painting Trades Workers, it records the indicative skill level in Australia as:

    ·     AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    ·     At least three years of relevant experience may substitute for the formal qualifications listed above.  In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

17. The specific occupation of Paining Trades Worker is described as “[a]pplies paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures”.

18. The tasks of the occupations within this Unit Group are listed in ANZSCO as including:

    ·     erecting scaffolding and ladders, and placing drop sheets to protect adjacent areas from paint splattering

    ·     preparing surfaces by removing old paint and wallpaper, fixing woodwork, filling holes and cracks, and smoothing and sealing surfaces

    ·     selecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives

    ·     applying paints, varnishes and stains to surfaces using brushes, rollers and sprays

    ·     hanging wallpaper, matching patterns and trimming edges

    ·     cleaning equipment and work areas

    ·     may repair windows and replace glass in wooden and metal frames

    ·     may lay and repair wall and floor tiles

19. In reaching a level of satisfaction as to the applicant’s relevant qualifications and experience the Tribunal accepts that the determination of each application requires more than a narrow matching process between the applicant's tasks and the ANZSCO occupational definition.  In an earlier version of this clause, the Court in Joshi v MIMIA held the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[2] 

    [2] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005).

20. On the information before it, the Tribunal accepts that in addition to a Certificate III in Painting and Decorating completed in 2013 at Della International College, the applicant has more recently completed a Certificate IV in Building and Construction (Building) at the Australian Industrial Systems Institute in accordance with the Australian Qualifications Framework.  The respective education providers are registered Australian institutions and registered to provide both these courses.. The tribunal places significant weight on the applicant’s ongoing employment (as certified by her employer Jaggers Family Trust as a ‘Painting Trades Worker’ at Jaggers F/T Painters from September 2011 to the present.  the Tribunal is satisfied the applicant has had the required period of employment and/or on the job training as a ‘Painting Trades Worker’.

21. The Tribunal notes that the transcript of results in relation to the Certificate III in Painting and Decorating qualification covers all of the tasks listed in ANZSCO for this occupation with the exception of the task “may lay and repair floor tiles”.  The Diploma of Building and Construction, while not directly related to the tasks of the applicant’s nominated occupation further strengthens her skills and qualifications.

22. Therefore, based on the evidence before it of the applicant’s qualifications (Certificate III in Painting and Decorating and Diploma of Building and Construction) together with over 4 years’ employment and/or on the job training at Jaggers Painting Services, as certified by her employer, the Tribunal is satisfied the applicant has demonstrated the skills, qualifications and employment background the Tribunal considers necessary to perform the tasks of the nominated occupation of ‘Painting Trades Worker’.

23. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

24. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    Decision

25. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(da) of Schedule 2 to the Regulations; and

    Tim Connellan
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (ea)if:

    (i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

    (ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant; and

    (iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.