1410041 (Migration)

[2015] AATA 3092

1410041 (Migration) [2015] AATA 3092 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ahmad Ibrahim
Mrs Laila Al Ali
Miss Nada Ibrahim
Miss Hala Ibrahim
Mr Saleh Ibrahim

MRT CASE NUMBER:  1410041

DIBP REFERENCE(S):  BCC2013/1725833

TRIBUNAL MEMBER:  Mary-Ann Cooper

DATE:6 July 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)(e) of Schedule 2 to the Regulations.

Statement made on 06 July 2015 at 2:28pm

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 25 October 2013.

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)(e) was not met because the applicant failed to provide evidence that he had the necessary skills to perform the nominated occupation.

5. The first named applicant (the applicant) appeared before the Tribunal on 26 May 2015 to give evidence and present arguments. The Tribunal also received oral evidence from his nominating employer (his brother) and a former work colleague. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. Documents provided prior to the hearing showed that the applicant had worked with various companies in Lebanon as a car repairer or ‘car blacksmith’. A copy of his resume was also provided which indicated that he commenced work as a panel beater in 1983 and on arrival in Australia, following the grant of a previous subclass 457 visa, worked as a panel beater with DNSS Repairs and, since 2013, with Melbourne Prestige Cars.

10. During the course of the review the employer nomination of the applicant ceased by operation of r.2.75 and the Tribunal addressed this issue at the hearing (cl.457.223(4)(a)). Documents were later provided which demonstrated that an application for approval of the nominated position had been made.

    Skills, qualification and employment background of the applicant

11. 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 Panel beater (ANZSCO 324111).

12. The delegate’s decision, a copy of which was provided with the review application, indicates that the delegate requested the applicant demonstrate that he had the skills necessary to perform the job by providing evidence that he had the relevant qualifications and experience as specified in ANZSCO for the nominated occupation. No response was received and consequently the visa applications were refused.

13. Noting that it is not bound by Department policy, the Tribunal has had regard to the relevant Departmental policy which provides as follows in PAM3:

    Qualifications and experience

    110  Assessment against the nominated occupation in ANZSCO

    …110.2      For nominations made on or after 1 July 2010

    Under regulation 2.72(10)(e)(iv), the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified:

    ·for the occupation in the relevant ANZSCO code or

    ·if there is no ANZSCO code for the nominated occupation, the occupation in the legislative instrument for the purpose of regulation 2.72(10)(aa).

    Demonstration of skills

    116      May be required

    Clause 457.223(4)(e) provides that officers may require the applicant to demonstrate that they have the skills and experience that are necessary to perform the nominated occupation. If an applicant is required to demonstrate these skills and experience, officers are to specify the manner in which this is to occur…

14. The delegate had specified that the applicant demonstrate that he had the necessary skills by providing evidence that he had the relevant qualifications and experience as specified in the ANZSCO for the nominated occupation.

15. The ANZSCO definition and the skills and experience listed for the occupation of ‘Panel beater” (Code 324111), which is part of the Unit Group 3241 ‘Panelbeaters’, records the indicative skill level as follows:

    UNIT GROUP 3241 PANELBEATERS

    PANELBEATERS repair damage to metal, fibreglass and plastic body work on vehicles, and form replacement vehicle panels.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

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

    
    In New Zealand:

    NZ Register Level 4 qualification (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.

    Registration or licensing may be required.

16. At the hearing the applicant told the Tribunal he commenced working as a panel beater at a young age in Lebanon, with his father, who was also a panel beater. He said he continued to work as a panel beater in his brother’s business (the nominating employer), specialising in repairing Mercedes and BMW vehicles. References from past employers were provided which demonstrated that he had undertaken this role in the past.

17. The Tribunal observed that it did not have any information confirming his current employment. It also observed that the salary of around $98K, as indicated in the visa application, was significantly in excess of market rates for a panel beater. In addition, in a submission filed by his representative, he had referred to the applicant’s employment as a ‘motor mechanic’.

18. The applicant said this was a mistake, that he has always worked as a panel beater. The representative acknowledged that he had made an error. The Tribunal accepts this is the case as all other references to the applicant refer to his occupation and experience as a panel beater. The applicant told the Tribunal that he had worked for his brother at DNSSS and that company had now become Melbourne Prestige Cars. He said that because he worked on high value, prestige cars, he was paid more than an average panel beater. The Tribunal went through the tasks of a panel beater as listed in ANZSCO and the applicant provided convincing evidence regarding his skills and experience in this respect. The Tribunal also had regard to several photographs of damaged and repaired prestige cars that the applicant claimed he had repaired. 

19. The applicant’s brother/nominating employer gave evidence confirming his work experience and stated that he worked for him since arriving in Australia. He also confirmed that he is paid a good wage because he is skilful in repairing very expensive cars and he therefore receives a good return on the work. The Tribunal also heard from the applicant’s former colleague who confirmed his work experience and also explained how he had assisted in tracing and providing the applicant’s work experience documentation from his former migration agent.  

20. The Tribunal notes a previous Tribunal decision of 31 March 2009 relating to the applicant’s previous subclass 457 visa application in which a similar issue was before the Tribunal (differently constituted). In that decision the Tribunal, on examining the then-requirements of cl.457.223(d) and (e), was satisfied that the applicant met both those requirements as follows:

    Having found that the first named visa applicant does have both the personal attributes and the employment background that are relevant to and consistent with the nature of the activity to be performed, being that of panel beater, the Tribunal finds that the first named visa applicant meets the requirements of cl.457.223(4)(d).

    In relation to cl.457.223(4)(e), this clause requires that an applicant demonstrates, if so required by the Tribunal (standing in the place of the Minister), that he or she has the skills necessary to perform the activity. In the case of the first named visa applicant, the Tribunal has found that the first named visa applicant has the required personal attributes and employment background which are relevant to and consistent with the nature of the activity to be performed. Therefore, the Tribunal does not consider it is necessary or appropriate to require the first named visa applicant to demonstrate in any other way that he had the skills necessary to perform that activity. Accordingly, the visa applicant meets the requirements of cl.457.223(4)(e).

21. Although now worded slightly differently, it is cl.457.223(4)(e) that is directly pertinent to the Tribunal’s considerations in this matter . As noted above it requires, if asked to do so by the Minister, that the applicant demonstrate he has the skills necessary to perform the occupation in the manner specified by the Minister . In this case the delegate has requested that the applicant demonstrate his skills by providing evidence that he has the relevant qualifications and experience as specified in ANZSCO for the nominated occupation. As noted above, ANZSCO specifies AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3). Alternatively it states that at least three years of relevant experience may substitute for the formal qualifications listed above.

22. On the evidence before it, the Tribunal finds that the applicant has been working as a panel beater for over 20 years, and remains employed in that role. The Tribunal is therefore satisfied that he has at least three years of relevant experience and, as provided by ANZSCO,  that this may be substituted for the formal qualifications of Certificate III or Certificate IV as listed.

23. On this basis the Tribunal is satisfied that the applicant has been required to and has demonstrated that he has the skills necessary to perform the occupation.  

24. For these reasons the Tribunal is satisfied that the applicant meets the requirements of cl.457.223(4)(e).

    CONCLUSION

25. 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.

    Secondary applicants

26. The delegate also refused visas to the secondary applicants, the wife and children of the visa applicant and who are included in his application. The delegate refused the visas because it followed that the refusal of the primary applicant’s visa meant that the secondary applicants did not meet the secondary criteria.  As the Tribunal is remitting the application it is appropriate for the delegate to consider these secondary criteria on remittal.

    DECISION

27. 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)(e) of Schedule 2 to the Regulations.

    Mary-Ann Cooper
    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.