1414721 (Migration)

1414721 (Migration) [2015] AATA 3559 (16 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1414721
MEMBER:Miriam Holmes
DATE:16 October 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 16 October 2015 at 9:46am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa [in] March 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 visa [in] August 2014 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had the skills, qualification and employment background necessary to perform the tasks of the nominated occupation.
The [applicant] appeared before the Tribunal on 6 October 2014 to give evidence and present arguments. The Tribunal also received oral evidence from[the applicant’s] employer at [company].
The applicant was represented in relation to the review by his registered migration agent.
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 this case the nominated occupation is Painting Trades Worker (ANZSCO Code 332211).
The [applicant] is aged [age] years and is a citizen of India. [In] March 2014 the applicant applied for the visa in relation to the nominated occupation and was sponsored by [his sponsor], trading as [the company]. [The sponsor] was approved as a sponsor from [May] 2013 until [May] 2016 and the related nomination was approved [in] March 2014. The sponsor has since lodged a further nomination application for the same occupation of Painting Trades Worker (ANZSCO Code 332211).
The Tribunal discussed with the applicant at the hearing his qualifications and work experience in order to assess whether the applicant meets the requirements in cl.457.223(4)(da). After careful consideration of the department policy, the documentary evidence and the oral evidence of the applicant, the Tribunal was satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, Painting Trades Worker.
The Tribunal took into consideration the policy of the Department set out in PAM 3. The Tribunal observes that whilst it may be guided by policy it is not bound to follow it.[1] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. The Tribunal notes that in Drake and MIEA [1979] AATA 179 Brennan J (as he was then made the following comments:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
[1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
In the interests of consistency in decision-making the Tribunal considered that it should have regard to the policy in this case. The policy notes, amongst other things, that the qualifications and experience of the applicant should be commensurate with the qualifications and experience specified for the occupation in the relevant ANZSCO Code. It goes on to state 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. It notes that ANZSCO skill level references represent the entry level skill required for a particular occupation. In all cases, case officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. 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.
The ANZSCO Code guidelines for Painting Trades Worker are attached. ANZSCO Guidelines states, in part:
UNIT GROUP 3322 PAINTING TRADES WORKERS

PAINTING TRADES WORKERS apply paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures.
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.
The Tribunal finds that the ANZSCO code indicates that a Painting Trades Worker should possess an AQF Certificate III including at least 2 years of on the job training or AQF Certificate IV (ANZSCO Skill Level 3) or at least three years of relevant experience. The Tribunal is not bound by these indicative skill specifications but the Tribunal took them into consideration in this matter.
The Tribunal finds that the applicant arrived in Australia [in] June 2009 on a student visa. The student visa was in force until [September] 2011. During the period of the first student visa the applicant studied a Certificate III in Automotive Mechanical Technology from July 2009 to July 2010.
A second student visa was granted to the applicant from [October] 2011 until [March] 2014. The Tribunal finds that between [January] 2012 and [May] 2013 the applicant undertook a Certificate III in Painting and Decorating at [a college]. The Certificate III in Painting and Decorating was issued [in] June 2013. The Tribunal notes that on the applicant’s curriculum vitae it states that the applicant undertook this course between November 2012 and May 2013. However at the hearing, the applicant provided to the Tribunal documents setting out the statement of results showing that the applicant undertook the studies over a 16 month period. The Tribunal finds based on the applicant’s oral evidence that this course did not include any work placements or on the job training but was undertaken on the College premises.
The applicant also holds a Certificate IV in Business Administration that was issued in March 2014, and according to the applicant’s CV he studied this course between June 2013 and December 2013. The Tribunal did not take this Certificate IV course into consideration as the course pertained to Business Administration and was not a course relevant to the skills of the nominated occupation.
The Tribunal also took into consideration [the applicant’s] relevant work experience. [The applicant] and [his employer] gave largely consistent evidence regarding the work that [the applicant] has undertaken for [the company], the nature of the working relationship, the people that [the applicant] worked with and the types of sites [the applicant] had worked on. Their oral evidence was consistent with the documentary material. The Tribunal deferred making a decision for the applicant to provide documentary evidence regarding the work arrangements between [the applicant] and [the company]. After the hearing the Tribunal received bank statements showing deposits into [the applicant’s] account from [his employer] and various invoices from [the applicant] to [the company] in June 2013, August 2012, February and June 2014, and a PAYG summary for the 2015 financial year. The Tribunal made the following findings based on the oral and documentary evidence provided:
·[The company] is a painting and decorating business operated by [the employer] and his wife. At the current time they have approximately [number] people working for the business as employees or contractors. [The company] undertakes a large range of work both domestic and commercial from substantial works involving the painting and decorating of 60 units on one site to smaller home sites. They undertake work mostly in [suburban] Melbourne, but have also undertaken projects in [areas nearby].
·In 2012, [the applicant] saw a work advertisement on [a] website by [the company] and rang and inquired about work. After discussions with [the employer], [the applicant] commenced work on a voluntary basis with [the company]. [The applicant] commenced as a voluntary worker, as he had no previous work experience and had to be trained. [The applicant] worked as a volunteer between March 2012 and June 2012 for 20 hours per week. In that period [the applicant] undertook work under supervision, including preparing surfaces including woodwork and plasterboard, was using brushes and rollers and sprays but was supervised daily by [his employer]. He usually worked on Thursday and Fridays.
·In July 2012 [the applicant] continued working with [the company] and commenced getting paid [an amount] per hour as a subcontractor for 20 hours a week. He was overseen by [two staff]. [The applicant] sent tax invoices to [the company] and was paid into his bank account. [The applicant] did not register for GST, although he did have an ABN number. [The applicant] provided the ABN number to the Tribunal and the Tribunal confirmed on the ABN register that the relevant number was registered and that the applicant registered the ABN from [July] 2012, although he was not registered for GST. [The applicant] worked as a subcontractor from July 2012 until December 2014. He worked part time until January 2014 and once he completed his studies he became a full time subcontractor working 38 hours per week. His pay rate also increase to [amount] per hour.
·[The applicant] became a full time employee of [the company] in December 2014 (see PAYG Summary) and was paid an annual rate of [amount] per annum plus superannuation and over time. [The applicant] was offered a position as a full time employee because the sponsor wished to sponsor him and the sponsor wanted to keep [the applicant’s] services as he is a valuable worker, who [his employer] trusts and can rely on.
·Once [the applicant] became a paid contractor he undertook a range of duties including – preparation work (such as filling holes, cracks), sanding, dusting down, masking, applying paint and varnishes, wallpapering, applying undercoat, stripping coats, cleaning up surfaces, colour matching, spraying, mixing paints, painting various surfaces and internal and external walls and staircases. In work situations he has had to use scaffolding, ladders and other equipment. As [the applicant] became more experienced he also took on the more complex work of final touch ups and getting the property ready for transfer. More recently, over the last 6 – 8 months, [the applicant] as had the responsibility for supervising other painting and decorating workers employed by [the company] on various sites. For example, he recently had to undertake the finalisation works for a large project for [another company] with two workers, which involved 3 -4 buildings and took 1 month to complete. [The applicant] has also worked on large projects where there have been [a large number of] houses to be painted and decorated, [many other] apartments on another site and a large retirement facility. The Tribunal finds that [the applicant’s] work experience since 2012 demonstrates that [the applicant] has undertaken a substantial range of the tasks set out in the ANZSCO Code for painting trades worker.
·[The employer] considers [the applicant] to be a valuable employee and that he is highly skilled as a painting trades worker.
·The Tribunal calculated that [the applicant] has 32 months’ work experience – from March 2012 to December 2013 being 21 months at 20 hours per week (equivalent to approximately 11 months full time) plus January 2014 to September 2015 being 21 months at full time work experience at a total of 32 months’ work experience.
·The Tribunal accepts [the employer’s] evidence that a painter and decorator in Victoria does not require a licence or registration.
The delegate refused the visa application as the delegate was not satisfied that the applicant held a Certificate III with at least 2 years on the job training or the applicant had three years full time relevant work experience.
The Tribunal is satisfied the combination of 32 months of work experience since March 2012 with [the company], along with the formal qualification of a Certificate III in Painting and Decorating that [the applicant] has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation as at the date of decision. In reaching this conclusion the Tribunal considered that the additional experience gathered by the applicant since the visa application was lodged. The Tribunal took into consideration that a Certificate III with 2 years on the job training is considered sufficient under the ANZSCO Code, in this case [the applicant] has the Certificate III formal qualification and 32 months’ work experience. The Tribunal also accepted [the employer’s] evidence regarding [the applicant’s] skills. On the evidence available the Tribunal is satisfied that [the applicant] has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of paint trades worker. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).
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
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.
Miriam Holmes
Senior 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.
UNIT GROUP 3322 PAINTING TRADES WORKERS

PAINTING TRADES WORKERS apply paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures.
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.
Tasks Include:
oerecting scaffolding and ladders, and placing drop sheets to protect adjacent areas from paint splattering
opreparing surfaces by removing old paint and wallpaper, fixing woodwork, filling holes and cracks, and smoothing and sealing surfaces
oselecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives
oapplying paints, varnishes and stains to surfaces using brushes, rollers and sprays
ohanging wallpaper, matching patterns and trimming edges
ocleaning equipment and work areas
omay repair windows and replace glass in wooden and metal frames
omay lay and repair wall and floor tiles

Occupation:
332211 Painting Trades Worker

332211 PAINTING TRADES WORKER

Applies paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures. Registration or licensing may be required.
Skill Level: 3
Specialisation:
Paperhanger

[2015] AATA 3559

16 October 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction