1414675 (Migration)

1414675 (Migration) [2015] AATA 3017 (1 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Karamjit Kaur
Mr Raghvir Singh
Miss Komalpreet Kaur Pannu
Master Prabhpartap Singh Pannu
CASE NUMBER:  1414675
DIBP REFERENCE(S):  BCC2014/1862469
MEMBER:Don Lucas
DATE:1 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)(da) of Schedule 2 to the Regulations; and
·cl.457.223(4)(e) of Schedule 2 to the Regulations.

Statement made on 01 July 2015 at 7:12pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicants applied for the visa on 30 July 2014.
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.
The delegate refused to grant the visas on 20 August 2014 on the basis that cl.457.223(4)(da) was not met because the first named visa applicant (the applicant) had not demonstrated that she had the necessary skills, qualifications and employment background necessary to perform the nominated occupation of Stonemason.
The applicants were represented in relation to the review by their registered migration agent.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
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 Stonemason, ANZSCO[1] 331112.
[1] The Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary
The delegate determined that the applicant did not possess the formal qualifications required under ANZSCO for the occupation of Stonemason. ANZSCO indicates that most occupations in the unit group that includes Stonemasons have a skill level in Australia are commensurate with AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV. The occupation as listed at ANZSCO Skill Level 3. The delegate had regard to the applicant possessing a Certificate III in Stonemasonry (Monumental/Installation), which did not include at least two years of on-the-job training. The delegate further had regard to the applicant’s Certificate IV in Building and Construction (Building), a Certificate IV in Business and certain units completed towards a Certificate I in Work Safety in the Construction Industry. The delegate concluded that taking the formal qualifications both separately and cumulatively, the applicant lacked the skills, qualifications and employment background necessary to perform the nominated occupation of Stonemason.
On review, the applicant through her representative provided detailed submissions together with additional evidence in support of the application. Relevantly, the submissions stated:
Skill Requirements
The applicant holds a Certificate IV level qualification which is relevant to the nominated occupation and has equipped her with the skills to be able to perform the nominated occupation, satisfying regs 2.72(10)(e)(iv) and 457.223(4) of the Migration Regulations 1994 (Cth) ('the Regulations') [extracted]
…ANZSCO for Unit Group 3311, which includes the occupation of Stonemason (33112) provides the following:
UNIT GROUP 3311 BRICKLAYERS AND STONEMASONS
BRICKLAYERS AND STONEMASONS lay bricks, pre-cut stones and other types of building blocks in mortar to construct and repair walls, partitions, arches and other structures, and cut and shape hard and soft stone blocks and masonry slabs for the construction and renovation of stone structures and monumental masonry.
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)…
The Procedures and Advice Manual (PAM) states that the ANZSCO should be referred to as the principal source of information on the normal tasks or duties and skill requirements for occupations in Australia and that ANZSCO skill level references represent the entry level skills required for a particular occupation. Departmental policy provides guidance to decision makers in assessing whether such a skill level is met in given circumstances:
ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation. However, when making their assessment case officers should be mindful that the qualification and experience of the applicant must be relevant to the nominated occupation.
For example, ANZSCO suggests that an architect should hold a bachelor degree or higher qualification. If an applicant was nominated as an architect and provided evidence of holding a Bachelor of Law degree, it would be inappropriate to grant the visa as completing a Bachelor of Law degree would not have provided the applicant with the skills required to design a building.
On the other hand, ANZSCO suggests that a marketing specialist should also hold a bachelor degree or higher qualification. If an applicant was nominated as a marketing specialist and they held a bachelor degree in business or sales for example, these degrees would be relevant to the occupation of marketing specialist so the delegate could be satisfied that the applicant had the requisite skills.
It is therefore clear that under law and the applicable Departmental policy, what is necessary is that there is a requisite nexus of relevance between the qualifications held by a nominee/visa applicant and nominated the occupational classification analogous to the example of a 'marketing' specialist holding a 'business' or 'sales' qualification.
The ANZSCO reference to an AQF Certificate IV level qualification for the occupation of Stonemason (ANZSCO 331111) in fact cannot be to an AQF Certificate IV in 'Stonemasonry', as no such qualification exists. I enclose a letter from Ian Stilo, Head of Department Trowel Trades-Bricklaying-Stonemasonry, Holmesglen Tafe, attesting to the fact that such a qualification does not exist.
To require the visa applicant to hold a qualification which does not exist in order to satisfy reg 457.223(4) would be an exercise of a decision-making power so unreasonable that no reasonable person would so exercise it: Associated Provincial Picture Houses Ltd. V Wednesbury Corporation [1947] 1 KB 223; Minister of Immigration and Citizenship v Li [2013] HCA 18.
As no such qualification exists, the reference under ANZSCO must necessarily be to a qualification which is relevant to the occupation, an interpretation which accords with both the law and policy in respect of regs 2.72(10)(e)(iv) and 457.223(4). The applicant holds the highest level qualification designed for only her trade which is available under the AQF framework, being a Certificate III in Stonemasonry, and a relevant qualification at a higher level, ie a Certificate IV in Building and Construction, awarded by Holmesglen Tafe.
All the units, completed by the applicant towards her Certificate IV in Building and Construction are relevant to those duties and responsibilities of a Stonemason which are closely associated with building and construction work, including supervisory and managerial duties:
•Apply structural principles to residential low-rise constructions
•Apply building codes and standards to the construction for low rise projects
•Apply structural principles to commercial low-rise constructions
•Read and interpret plans and specifications
•Apply legal requirements to building and construction projects
•Manage occupational health and safety in the building and construction workplace
•Plan building and construction work
•Select and prepare a construction contract
•Identify and produce estimated costs for building and construction projects
•Produce labour and material schedules for ordering
•Conduct on-site supervision of the building and construction project
•Select, procure and store construction materials for low-rise projects
•Prepare and evaluate tender documentation
•Manage projects
•Manage small business finances
•Apply quality management techniques
The Certificate IV in Building and Construction is relevant to the trade of stonemasonry (which is part of the building and construction sector) and teaches skills in running a small business as a stonemason.
Similarly, the Certificate III in Stonemasonry is not followed at Holmesglen TAFE by a Certificate IV in Stonemasonry, but is instead followed by the Certificate IV in of Building and Construction (Building) (see ).
Accordingly, the applicant holds a Certificate IV level qualification which is relevant to the nominated occupation and has equipped her with the skills to be able to perform the nominated occupation, satisfying regs 172(10) (e)(iv) and 457.223(4) of the Regulations.
The submissions contained a number of attachments, including:
·Website information pertaining to the Certificate IV in Building and Construction course at Holmesglen
·Website information regarding Stonemasonry/ Courses in Australia from Myfuture (Australia's career information service)
·Letter from Ian Stilo, Head of Department Trowel Trades-Bricklaying-Stonemasonry, Holmesglen Tafe.
The letter from Holmesglen TAFE stated:
This is to confirm that Karamjit has successfully completed Certificate UI in Stonemasonary (CPC32311) in 2013.
As there is no Certificate IV in Stonemasonary offered in Australia, Karamjit has completed the Certificate IV in Building and Construction which is a relevant associated qualification which provides the knowledge and skills to be employed / self employed as a Stonemason in Australia.
The Tribunal acknowledges that the classifications contained within ANZSCO are expressly stated in the dictionary itself merely to be a guide, and that it would be erroneous to apply ANZSCO classification codes strictly, or to elevate indications within the dictionary to the level of regulatory criteria. ANZSCO itself does not purport to definitively or prescriptively lay out the expectations for qualifications and experience for an occupation.
However, the entry level skills indicated by ANZSCO are of course a highly relevant consideration for the Tribunal in determination of questions such as whether an applicant possesses the necessary skills, education and employment experience to perform an occupation nominated under r.2.72 in relation to the applicant. This is particularly so since r.2.72 makes specific reference to the ANZSCO dictionary, which sets out the indicative entry levels for skill as well is the tasks and duties of any given nominated occupation.
In view of the guidance provided by ANZSCO concerning minimum entry level requirements in relation to skill for the performance of the occupation of Stonemason, the Tribunal is satisfied on the evidence that the visa applicant possesses the skills, qualification and employment experience necessary to perform this role for the nominating business in Australia.
In this regard, the Tribunal accepts the submissions made by the applicant’s representative and the evidence from Holmesglen TAFE that in Australia there is no specific Stonemasonry qualification at AQF Certificate IV level, and that it is an industry norm and expectation for Stonemasonry students completing Certificate III qualifications to progress on to Certificate IV in areas such as Building and Construction, precisely as the applicant in this case has done. Having had regard to the evidence concerning the units completed by the applicant in the Certificate IV Building and Construction qualification, there is no question in the mind of the Tribunal as to the relevance of this course of the occupation for which the applicant has been nominated.
Accordingly, the Tribunal is satisfied that the applicant possesses the necessary skills and qualifications required to perform her nominated occupation of Stonemason.
The Tribunal accordingly finds that the applicant meets cl.457.223(4)(da).
The visa applicant was requested by the Department to provide certain evidence in support of the claim to meet the necessary skills requirement. Having considered the evidence provided to the Department and the further evidence provided to the Tribunal, the Tribunal is satisfied that the visa applicant has demonstrated she possesses the requisite skills in the manner specified.
The Tribunal accordingly finds that the visa applicant meets cl.457.223(4)(e).
CONCLUSIONS
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 to be met by the primary applicant and the second named applicants.
In relation to remaining criteria, the Tribunal draws the Department’s attention to the fact that the standard business sponsor, HL Stone World Pty Ltd ATF Stone World was approved in a nomination identifying the applicant for the position of Stonemason on 7 August 2014. Under the terms of Migration Regulation 2.75, this nomination will cease on 7 August 2015. Thereafter, unless the remitted application can be considered and determined prior to 7 August 2015, the business sponsor nominating the applicant will be required to apply for approval of a further nomination in order for the applicant to continue to meet the nomination criteria in cl.457.223(4)(a), a criterion which it is apparent that she meets at present.
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)(da) of Schedule 2 to the Regulations; and
·cl.457.223(4)(e) of Schedule 2 to the Regulations.
Don Lucas
Member

ATTACHMENT 1- 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.
ATTACHMENT 2 – ANZSCO UNIT GROUP 3311 BRICKLAYERS AND STONEMASONS
BRICKLAYERS AND STONEMASONS lay bricks, pre-cut stones and other types of building blocks in mortar to construct and repair walls, partitions, arches and other structures, and cut and shape hard and soft stone blocks and masonry slabs for the construction and renovation of stone structures and monumental masonry.
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)
…

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.
Tasks Include:
ostudying plans and specifications to determine materials required, dimensions and installation procedures
oerecting and dismantling restricted height scaffolding
osealing foundations with damp-resistant materials and spreading layers of mortar to serve as base and binder for blocks using trowels
olaying bricks in rows, designs and shapes, and spreading mortar between joints
oembedding blocks in mortar and removing excess mortar
ochecking vertical and horizontal alignment
ocutting, shaping and polishing stones and bricks using machines and hand tools, and shaping bricks to fit irregular spaces
orepairing and maintaining bricks, cement blocks and related structures
odesigning and cutting monumental masonry and lettering
oconstructing walls using stone slabs and large masonry slab blocks

Occupations:
331111 Bricklayer
331112 Stonemason …

331112 STONEMASON

Cuts and shapes hard and soft stone blocks and masonry slabs to construct and renovate stone structures and monumental masonry. Registration or licensing may be required.
Skill Level: 3
Specialisations:
Construction Stonemason
Monumental Stonemason

[2015] AATA 3017

1 July 2015

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