1413216 (Migration)

[2015] AATA 3364

1413216 (Migration) [2015] AATA 3364 (27 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Michaela King

CASE NUMBER:  1413216

DIBP REFERENCE(S):  BCC2014/1052870

MEMBER:Karen Synon

DATE:27 August 2015

PLACE OF DECISION:  Melbourne

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

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

Statement made on 27 August 2015 at 12:17pm

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 24 April 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 visa on 15 July 2014 on the basis that cl.457.223(4)(da) was not met because she was not satisfied the applicant had the skills, qualifications and employment background necessary for the nominated position.

5. An application for review of the primary decision was lodged on 30 July 2014.  A copy of the department’s decision was provided to the Tribunal.

6. The applicant was represented in relation to the review by her registered migration agent.

7. On 21 May 2015 the Tribunal wrote to the applicant, via her authorised representative, in accordance with the provisions of s.359(2) of the Migration Act. The applicant was invited to provide the following information in writing by 15 June 2015:

   Additional information concerning your qualifications and/or your employment experience indicating that you possess the skills necessary to perform the nominated occupation of ‘Construction Project Manager’

8. On 21 May 2015 the Tribunal received advice that the applicant is subject to a new nomination approved by the department on 21 April 2015.  On 9 June 2015 the applicant appointed a new authorised representative and registered migration agent.  He requested additional time in which to respond to the Tribunal’s s.359A letter.  This was granted until 29 June 2015.

9. On 29 June 2015 a submission was received in response to the Tribunal’s letter making the following relevant points:

   ·The applicant’s bachelor’s degree in Economics with Accountancy Studies is particularly relevant to four of the tasks listed in the relevant ANZSCO description namely: coordinating labour resources and procurement and delivery of materials plant and equipment; negotiating with building owners, property developers and contractors involved in the construction process to ensure projects are completed on time and within budget; preparing tenders and contract bids; and ensuring adherence to building legislation and standards of performance, quality, cost and safety.

   ·The applicant’s transcript of results demonstrate that she has studied microeconomics; industrial economics; costing; quantitative methods; and accounting for business decisions.

   ·The company in which the applicant is employed is HomeRepair, a service provided to Australia’s premier insurers for whom the repair of damaged homes is conducted.  The domestic repair insurance industry represents a significant, specialised segment of the construction industry and the business works hard to understand what concerns their customers most about the damage to their home and to provide them with honest, straightforward advice they can rely on.  The business works relentlessly to achieve 100% repair satisfaction.  As a service business, HomeRepair has to be innovative, focused, fast acting and focused on always doing better for its customers.

   ·The business requires specific skills and abilities of its Construction Project Managers.  The applicant is an absolutely critical part of this team.  In the context of her role it is vitally important that the applicant has the skills and experience necessary to make sound economic and business decisions on how the construction project repair works and will be best managed.  This is vital to ensuring projects are completed on time and within budget. 

   ·There is a relevant relationship between Economics/Accountancy and Construction Management.  Modern construction is a complex, highly organised commercial business dealing with large investments, sophisticated construction techniques,  skilled labour and real-time project information systems.  A background in economics and accounting equips Construction Project Managers with particular skills allowing them to analyse the kind of problems that confront decision makers in any branch of the construction industry. 

   ·Economics graduates are valued in this sector as they are often skilled in contextualising financial situations and identifying the root of financial problems.  They are highly organised and able to make sense of complex datasets and coordinate and budget construction projects.  A background in economics and accounting brings widely transferable analytical and problem-solving skills that allow graduates to successfully enter multiple kinds of industries and have successful careers. 

   ·It was submitted that the case officer overlooked the relevance of the degree qualification to the nominated industry.  Had the occupation been an on-site construction supervisor role the decision would likely be appropriate.  In relation to the applicant’s qualifications it was submitted that the degree in economics is more appropriate and relevant to the kind of construction project management work that she performs for HomeRepair.  The applicant is focused on the project management side of construction projects in coordinating the completion of all of projects performed remotely and which require far more business acumen and a detailed understanding of specific construction tasks.

   ·Both an on-site construction supervisor and a remote construction manager would be equally capable of being classified as a Construction Project Manager under ANZSCO.  However the type of project management role the applicant performs requires more developed skills in business, costing projects and the project management of contractor tradespeople (or the coordination of in-labour resources) and is well suited to a person with educational qualifications in business economics.  The applicant’s qualifications are extremely relevant to the position given the large number of individual projects managed at one time and the skills required to manage the financial and budgetary aspects of each project.

   ·The applicant is a proven asset to HomeRepair in the planning, progression and completion of repair projects.  In the coordination of initial inspections and subsequent repairs, the applicant has to demonstrate a keen financial sensibility employing assessors and tradespeople to ensure a quality repair, customer service and customer satisfaction while also being concerned about the profitability of HomeRepair.  Her ability to liaise with assessors, specialised tradespeople, client managers and homeowners to make the correct decisions has been crucial to her role and development.

   ·The applicant also has 4½ years of highly relevant employment experience.  Together her work experience and her tertiary qualifications should be considered favourably for an assessment that she has the necessary skills to perform the occupation.

10. The following documents were provided in support of the submissions:

    ·A copy of the applicant’s Bachelor of Science in Economics with Accountancy Studies conferred by the University of Ulster on 2 July 2012 and the associated academic transcript.

    ·A letter dated 30 June 2012 from Tracey McEntee, of KBS Contracts who writes that this is a family run business specialising in decorative resin screens.  The applicant was employed part time from 2009 to 2012, concurrent with her studies, as a Quantitive Surveyor and Project Manager with responsibility for a wide range of contracts.

    ·A letter dated 18 June 2014 from Michelle O’Hara of Annvale Construction Ltd who writes that the applicant was employed on a casual basis from November 2011 to June 2012 as a Project Co-ordinator and doing general office duties.

11. The applicant appeared before the Tribunal on 27 August 2015 to give evidence and present arguments the Tribunal also took witness evidence from the applicant’s employer Mrs Amanda McMullan.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

14. 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 this case the nominated occupation is ‘Construction Project Manager’.

15. In the present case, the delegate assessed the applicant’s relevant qualifications and experience with that specified for the occupation of Construction Project Manager in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

16. ANZSCO is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Construction Project Manager’.  However the Tribunal has referred to ANZSCO to inform its consideration of whether the applicant has the skills necessary to perform the nominated occupation.

17. In considering the ANZSCO definition and tasks for the occupation of ‘Construction Project Manager’ (Code 133111), which is part of the Unit Group 1331 Construction Managers, it records the indicative skill level in Australia as:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification.  At least five years of relevant experience may substitute for the formal qualification.  In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1)

    Construction Managers “plan, organise, direct, control and coordinate the construction of civil engineering projects, buildings and dwellings, and the physical and human resources involved in building and construction”.

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

    ·interpreting architectural drawings and specifications

    ·coordinating labour resources, and procurement and delivery of materials, plant and equipment

    ·consulting with Architects, Engineering Professionals and other professionals, and Technical and Trades Workers

    ·negotiating with building owners, property developers and subcontractors involved in the construction process to ensure projects are completed on time and within budget

    ·preparing tenders and contract bids

    ·operating and implementing coordinated work programs for sites

    ·ensuring adherence to building legislation and standards of performance, quality, cost and safety

    ·arranging submission of plans to local authorities

    ·building under contract, or subcontracting specialised building services

    ·overseeing the standard and progress of subcontractors' work

    ·arranging building inspections by local authorities

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.[1] 

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

20. The Tribunal has before it evidence that the applicant has been awarded a Bachelor of Science in Economics with Accountancy Studies from the University of Ulster.  The Tribunal also has before it the transcript of results which records that all of the units in her degree were in the areas of finance and economics.  The Tribunal considers this degree qualification to be highly relevant to the nominated position.

21. The Tribunal’s had the benefit of taking oral evidence from both the applicant and her employer.  This evidence has been invaluable to the Tribunal in arriving at its decision.

22. Mrs McMullan, a director of HomeRepair, explained that this company had been started by her husband 14 years ago.  While it started as a family business, recently 90% of the business had been acquired by Suncorp insurance which owns 35% of the general insurance market.  Her family continues to own 10% of the business and Mrs McMullan is the Executive Manager of Operations.  All project management staff report to her.  The business is principally concerned with conducting home repairs for the insurance industry.  Last year its turnover was $18 million.  It employs about 45 staff including 25 Construction Project Managers and 16 Building Assessors.  All Construction Project Managers are paid the same salary of 55,000 a year plus super.  Team leaders are paid more.  The applicant has been employed in the same capacity since October 2013.  HomeRepair operates nationally but all projects are managed out of Melbourne.  At the moment, for example, there are 1,400 ‘open jobs’ and each Project Manager is responsible for a range of designated jobs.  The business has one other 457 employee also working as a Construction Project Manager.  They have not sponsored any other workers.

23. Mrs McMullan said she was very surprised when the visa was refused because they have a lot of difficulty recruiting Construction Project Managers and need to advertise for these positions almost constantly due to the rapid growth of the business.  Originally the type of people recruited in these positions were “crusty old builders” however modern project managers need to be incredibly switched on with technology as this is used extensively to communicate with customers (for example with videoconferencing) and to monitor the progress of jobs.  Although she did not initially interview the applicant when the report of her interview was related to her she was very impressed that the applicant had grown up in the construction industry was very comfortable with the trade language.  She also considers it very important to have sense of financial control which the applicant demonstrates both through her qualifications and experience.  Mrs McMullan’s only initial reservation in employing the applicant was her Irish accent and occasional times when she could be understood.  These issues are now resolved.

24. The business operates with four management teams including the ‘pre-prepare team’; ‘fast team one’; ‘fast team two’; and the ‘complex team’.  The applicant is working in the complex team where non-standard materials need to be specifically manufactured for jobs.  She commenced in the pre-prepare team.  Each Project Manager needs to use very sophisticated IT systems and each person manages about 50 jobs.

25. The applicant explained that KBS Contracts is her family’s business and she commenced employment there in September 2009.  She grew up around the construction industry because her parents own this company 100%. She is very familiar with the building business.  She came to Australia in 2012 as soon as she finished her degree on a working holiday visa.  While on this visa she had a six-month position doing reception and data entry and also completed sufficient regional agricultural work in order to be eligible for a one-year extension to her working holiday visa.  She commenced with HomeRepair in October 2013 after seeing the job advertised on Seek.com.  She had previously had no personal contact or networks with this business.  Her brother has permanent residency and works as a carpenter.  She hopes to stay in Australia permanently.  She currently has some involvement in up to 60 jobs a day. 

26. Having regard to the evidence before it including the nature of the applicant’s tertiary qualification and its relevance to her current position as a Construction Project Manager at HomeRepair the Tribunal has formed the view that this qualification is highly relevant to the nominated position. 

27. The Tribunal also accepts, based on her employer’s evidence, that the applicant has been performing this role and demonstrating great skill for almost 2 years and she has progressed to being a part of the most highly skilled t team.  Based on the written and oral evidence before it the Tribunal considers that the applicant has the necessary qualifications, skills and experience to perform the tasks of planning, organising, directing, controlling and coordinating the delivery of construction repairs, including the physical and human resources involved.

28. Based on this the Tribunal is satisfied that the applicant has a bachelor degree qualification and the commensurate skill level which is the indicative skill level cited in ANZSCO for the position of Construction Project Manager.  The Tribunal is satisfied the applicant has demonstrated the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

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

30. 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

    31.The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

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

    Karen Synon
    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.