1412256 (Migration)

[2015] AATA 3073

1412256 (Migration) [2015] AATA 3073 (9 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Delaney

CASE NUMBER:  1412256

DIBP REFERENCE(S):  BCC2013/2169716

MEMBER:Steve Georgiadis

DATE:9 July 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 09 July 2015 at 3:34pm

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 23 December 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 visa on 23 June 2014 on the basis that cl.457.223(4)(da) was not met because the applicant’s qualifications and employment background are inconsistent with the level of skill specified in ANZSCO 362213 for a Landscape Gardener.

5. The applicant appeared before the Tribunal on 8 July 2015 by video-conference to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Margaret Delaney.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. 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 for a Landscape Gardener, ANZSCO 362213.

9. The ANZSCO 362213 classification for Landscape Gardener describes the relevant tasks by a person who plans and constructs garden landscapes. The general description for a Gardener is to plant, cultivate, maintain, plan and construct parks, gardens and landscapes, and inspect, diagnose and treat trees and shrubs.

10. ANZSCO describes most occupations in this unit group in Australia as having a level of skill commensurate with the qualifications and experience outlined below:

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

11. 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.

12. At the hearing, the applicant told the Tribunal that he has no formal qualifications for a Landscape Gardener, and the Tribunal so finds.  In the absence of at least an AQF Certificate III (including at least two years of on-the-job training) or AQF Certificate IV, the Tribunal considered whether the applicant could meet the ANZSCO Skill Level 3 criterion by demonstrating at least three years of relevant experience that may substitute for the formal qualifications listed above.

13. The applicant provided information submitted on 27 February 2014 in respect of his employment background relating to the nominated occupation of Landscape Gardener.  Included in that material was the applicant’s resume and an employment reference letter from Celtic Paving and Landscaping SARL. On 12 March 2014 the applicant was requested by the Department to provide additional information to support his claims in relation to actual work experience for the nominated occupation as the information to that point could not substantial the ANZSCO Skill Level 3 requirement. Specifically, the following documents were requested of the applicant who was invited to produce any such documents to substantiate his claims: contracts, invoices, bank statements with salary deposits, payslips, tax returns, group certificates, and superannuation information. No further documentary material was provided.

14. At the hearing the applicant was asked whether he now had any such documentary information to provide in respect of his employment background to substantiate his claims.  He responded that he had no such documents at the hearing and emphasised that his prior work experience with Celtic Paving and Landscaping was in a “cash” or “black market” economy in Ireland and therefore he was not provided with any payslips or other documents which might substantiate his employment background with that company.  Later on in the hearing when the question of payslips again arose, the applicant changed his evidence stating that he was provided with some “shitty brown pieces of paper” (payslips) but that he did not retain any of these to produce. When questioned about any other documents to substantiate his relevant employment record such as tax returns or payment (group) certificates or bank statements showing salary deposits and such like, the applicant said he had no such documents to provide.

15. The applicant relies on the reference letter from Celtic Paving and Landscaping SARL which is undated. When asked about the date of the document, the applicant told the Tribunal that the reference letter was prepared in 2013 or 2014 but he was not sure. The applicant added that the letter was written by his uncle, John Delaney, who is the owner of the business.

16. At the hearing the Tribunal asked questions to confirm aspects of the information contained in the reference letter and the applicant’s oral evidence.  The Tribunal asked the applicant to outline the periods of his employment with his uncle’s business. In response, the applicant said “I have never worked for anyone in my life.”  He said that any work undertaken for Celtic Paving and Landscaping was unpaid. This contrasts with the oral evidence of “... brown paper” payslips. The Tribunal notes that the reference letter sets out that the applicant worked for the company from October 1996 to November 2000 where he “undertook a training contract for 4 years.”  Given the applicant’s year of birth of 1982, this means that the training contract was entered into when he was 14 years of age.  The Tribunal also asked the applicant if he had returned to work with the company at any subsequent time. The applicant appeared unsure, stating “I suppose I might have worked for my uncle ... I’ve had that many jobs.”  The Tribunal has concerns with the applicant’s credibility as a witness of truth from his demeanour, and from his oral evidence relating to his work with the above company given that the reference letter states the applicant “returned to work with our company in November 2006 and again resigned in 2010 to further his travel overseas”.  The Tribunal raised this issue with the applicant at the hearing and other concerns regarding the inconsistency of his earlier oral evidence about payslips and invited him to comment on this. The applicant told the Tribunal that “I can’t reflect on what I’ve done.”  The Tribunal also raised the issue identified in the Delegate’s decision that when a search of the Irish Companies Register was undertaken at the Department’s request in respect of his uncle’s company, there was no record found to substantiate that Celtic Paving and Landscaping SARL exists or has ever existed.

17. When invited to respond to this issue the applicant said that this is because the company’s name is not Celtic Paving and Landscaping but Celtic Block Paving.  The Tribunal put to the applicant that it considered it highly unlikely that his uncle who, on the applicant’s oral evidence is the owner of the company, would provide an incorrect company name on the letterhead used for a reference letter, which clearly sets out the company  name as Celtic Paving and Landscaping SARL.  When invited to respond, the applicant said “if it’s not registered, my uncle is full of shit”. The Tribunal has considered all the available evidence before it discussed and does not accept the applicant’s explanation because it considers it implausible for the reasons stated. The Tribunal also does not consider the applicant’s oral evidence as credible to explain any registration of the business in a different company name, or at all. For the same reasons and the finding of the applicant’s lack of credibility, the Tribunal does not accept that the reference letter establishes the applicant’s employment history as a Landscape Gardener.

18. Given the evidence discussed, and the lack of any other documentary material to substantiate the applicant’s employment history as a Landscape Gardener, the Tribunal is not satisfied that the applicant has established he has at least three years of relevant experience that may substitute for the formal qualifications required under ANZSCO 362213 to meet Skill Level 3.

19. The Tribunal finds that the applicant has not demonstrated he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

20. The applicant therefore, does not satisfy the requirements of cl.457.223(4)(da).

21. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Steve Georgiadis
    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.