1416736 (Migration)

[2015] AATA 3795

1416736 (Migration) [2015] AATA 3795 (27 November 2015)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Miss Thi Xuan Thanh Nguyen

MRT CASE NUMBER:  1416736

DIBP REFERENCE(S):  BCC2014/1333479

TRIBUNAL MEMBER:  Mary-Ann Cooper

DATE:27 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.234 of Schedule 2 to the Regulations.

Statement made on 27 November 2015 at 4:02pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 September 2014 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 29 May 2014. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Translator. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.234 of Schedule 2 to the Regulations because she did not have 3 years fulltime employment in the occupation and none of the exemptions applied.

6. The applicant appeared before the Tribunal on 22 April 2015 to give evidence and present arguments. The Tribunal also received oral evidence from two of her employers.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets cl.187.234.

Skills assessment and prior employment

1. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met (cl.186.234(2)(a), (aa) and (b)).

2. For this criterion, the relevant class of exempt persons has been specified in IMMI 12/060.

3. For the skills assessment, the relevant skilled occupations and assessing authorities are relevantly specified in IMMI 14/049.

4. For visa applications made on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

5. In addition, if not an exempt person, the applicant must have been employed in the occupation for three years.  Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation.

Clause 186.234(2)(a) and (aa)

1. Clause 186.234(2)(a) requires the applicant to have a suitable skills assessment from the specified assessing authority for the occupation. Departmental policy states that ‘a positive skills assessment for an occupation other than the 6-digit ANZSCO occupation code on the nomination does not meet legislative requirements to be accepted’[1] Although not expressly stated in cl.186.234(2)(a), this is consistent with a reading of the Direct Entry stream criteria as a whole, and having regard to the ENS scheme as a whole, that ‘the occupation’ for this criterion is the occupation to which the position identified in the nomination relates. That is, the occupation which corresponds to the tasks to be performed in the position as identified in the nomination. In this matter, the occupation is relevantly identified in the nomination and the applicant’s visa application is that of Translator.

   [1] PAM3, Migration > 2014 > 23/08/2014 - > P. 23/08/2014 - > PAM3 - Migration Regulations - Schedules > Sch2 Visa 186 - Employer Nomination Scheme at [28.2]

2. For the skills assessment, the relevant assessing authorities for each occupation have been specified in IMMI 14/049 which is specified to apply to Subclass 186 visa applications made on or after 1 July 2013 but before 1 July 2014. The applicant made the Subclass 186 visa application on 29 May 2014. Relevantly to this case, the assessing authority specified for the occupation of Translator (ANZSCO Code 272413), is NAATI. As noted above, for visa applications made on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa (cl.186.234(2)(aa)).

3. The Department’s file contains copies of the correspondence from NAATI dated 11 August and 3 September 2014. Both these documents advise that the applicant is accredited as a Professional Translator from 19 March 2014, expiring on 19 March 2017. They also state that her accreditation ‘is suitable for the nominated skilled occupation of Translator for migration purposes ANZSCO code 272413’. 

4. The Tribunal noted that the date of these documents is after her date of application for this visa. The applicant stated that she had applied earlier however NAATI had made some mistakes and she had not received the formal correspondence until after the time of application. The Tribunal contacted NAATI in this regard and a response was received which confirmed their error and the fact that the applicant should appropriately be regarded as having received her skills assessment in March 2014.

5. On this basis the Tribunal is prepared to accept that at 29 May 2014 the applicant had her skills assessed as suitable for her nominated occupation by the specified assessing authority.

6. It follows that the Tribunal finds that the applicant meets cl. 186.234(2)(a).

7. The Tribunal further notes that the applicant was granted a subclass 485 visa on 3 February 2012. The Tribunal is therefore satisfied that the skills assessment provided to the Department in respect of this visa application was not for the purposes of a subclass 485 visa.

8. Therefore the Tribunal is also satisfied that cl.186.234(2)(aa) is met.

Clause 186.234(2)(b)

1. In addition, the applicant must have been employed in the occupation for three years.  As this visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation.

2. As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicant had provided evidence that she had worked part-time, 20 hours per week, at St Paul’s School as a translator from 27 April 2011 to 27 May 2014. The delegate calculated this period of time as equivalent to 1.5 years of relevant fulltime employment and therefore concluded that she had not been employed on a fulltime basis at the level of skill required for the occupation for three years. She considered another role listed by the applicant in her visa application that had incorporated some translating duties, however, concluded that these were ancillary to her position and could not appropriately be included for the purposes of assessing the length of time the applicant had been employed in the nominated occupation. Consequently the visa application was refused.  

3. Prior to the hearing the applicant supplemented her evidence of employment by providing a document purporting to be “confirmation of employment’ for the applicant from Trung Tay Services Consultancy Investment Co. (‘Trung Tay’) which asserted that she had been employed by it as a part-time  translator from 1 June 2005 to 30 December 2008 for 23 hours per week. She also provided further correspondence from one of the employers listed in her application, Uc Viet, stating that she worked for them 40 hours per week, from February 2008 to February 2009, claiming that for half of that time she had been engaged in translating duties.  On the morning of the hearing her migration agent, who became a witness at the hearing, also provided a statement indicating that the applicant had worked part-time for her as a translator from 1 July 2012 to 30 June 2013.

4. At the hearing the applicant claimed that she had been misled by the Department’s website and had thought that she only needed to demonstrate 3 years employment, not 3 years fulltime employment. She explained that was the reason why she had not listed all her relevant experience as a translator. The Tribunal observed that, whether or not this was a plausible explanation for the exclusion of relevant employment details in her visa application, this response did not explain why the details were also absent from her Resume. The applicant stated that she did not put her part-time positions in her Resume. The Tribunal further noted that the additional employment that she now claimed in Vietnam was during the same period as her visa application and Resume indicated she was employed by other entities. She explained that her work with Trung Tay was done after hours and all day on Saturdays.

5. The Tribunal further observed that in her listing of previous employment in her visa application, in response to the question “Is this employment related to the nominated position?”, she had answered “No”. The applicant  claimed she had been advised by her migration agent, who had lodged the form on her behalf, in completing it and reiterated that she understood her employment at St. Paul’s would be sufficient for the grant of the visa.

6. In conclusion the applicant said it was unfortunate that she had not provided all the relevant documents and she apologised for not responding correctly in her visa application but insisted that it was a genuine misunderstanding of the information on the Department’s website. The Tribunal accepts her explanation in this regard and considers she has been ill-advised by her agent.

7. The Tribunal then spoke to her witnesses, initially to the owner of Trung Tay. Consistently with the evidence of the applicant, she said the applicant had worked for her during the hours of 5-8 pm on weekdays and Saturdays from 8 am-5 pm. She could not remember the exact dates of that employment, stating that it was around 2006 to 2010. The Tribunal asked why she could not remember the dates, and she responded that she was busy and had many staff. The Tribunal later received correspondence from her, with a certified translation, explaining that at the time of the Tribunal’s call she had been rushed as she was due at another appointment. She confirmed the content of her previous correspondence regarding the applicant’s employment with her company. On the basis of the consistency of the evidence in relation to the nature and duration of the applicant’s employment in this regard, the Tribunal accepts that the applicant worked at Trung Tay as a Translator for the period claimed.

8. The Tribunal then spoke to the applicant’s migration agent, also her nominating employer. She had separately provided a statement claiming that the applicant had been employed by her as a Translator, on a part-time basis, for the period 1/7/2012 to 30/6/2013. The Tribunal asked why the details of this apparently relevant employment had not been included in the applicant’s visa application. She said she did not know why this had happened. Given that the agent also filed the visa application, the Tribunal considers this response, at best, unconvincing. The Tribunal expressed its concern that the additional employment evidence she provided may have been created or invented for the purposes of satisfying the visa criterion. She maintained that the applicant had worked for her as claimed and produced a copy of a PAYG Summary as support for her claims in this regard. The Tribunal asked her what hours the applicant had worked and she was unable to provide clear details. In this context she undertook to provide further information to the Tribunal. She later provided payslips purporting to cover the period and an employment contract between the agent and the visa applicant for a casual part-time translator  dated 25 June 2012. None of these documents were certified copies of original documents. The Tribunal also notes that no tax has been withheld on the applicant’s payslips or PAYG statement. Although the applicant’s earnings in this position were below the relevant threshold, she was also working 30 hours per week at St. Paul’s School in the same period and therefore tax withholdings were most likely necessary. In any event, given the crucial nature of this documentation to the applicant’s claims regarding her previous employment, the Tribunal does not consider there has been any plausible explanation for the failure to produce it at the time of application or even at a point earlier to the Tribunal hearing. While the Tribunal accepts that the applicant may have been genuinely confused by what she was required to establish in this regard, there can be no similar excuse for her migration agent to have failed to appreciate the significance of this information. In this context, the Tribunal has significant doubts as to the genuineness of this documentation and accords it very little weight. Given the Tribunal’s findings below it is unnecessary to consider it further.

9. In summary, the applicant claimed relevant employment as a Professional Translator with four employers: Trung Tay, Uc Viet, St Pauls and her migration agent.

10. For the reasons above the Tribunal is not satisfied on the evidence provided as to the applicant’s claims of relevant employment with the migration agent. For the same reasons as the delegate, the Tribunal is not satisfied as to her claims of employment with Uc Viet. On the basis of the documentation supplied by St. Paul’s school and the oral evidence and further sworn statement provided by her former employer at Trung Tay, it does however accept that the applicant was employed part-time as a translator for St. Paul’s School from April 27^th 2011 up until the date of application, that is until May 29^th 2014. It is also satisfied that she worked part-time as a translator for the period 1 June 2005 to 30 December 2008 with Trung Tay Consultancy and Investment Services Pty. Ltd in Vietnam.  

11. The Tribunal notes the Departmental guidelines relevantly provide as follows:

Must have been employed in the nominated occupation for 3 years

Requirements

Clause 186.234(2)(b) refers.

At the time of application the applicant must have been employed for at least 3 years in the occupation for which they have been nominated.

The applicant must have worked full-time for at least 3 years however the period of work does not have to be continuous, or be immediately before the visa application was made. In order for the work to qualify as full-time, the applicant should have worked for at least 35 hours per week.

Employment should be full time

ENS recognises that, in addition to full-time work, there now exists a range of variable employment arrangements. Citizens of numerous countries depend on multiple income earning strategies to make a living. In Australia, part-time work arrangements and variable working hours are increasingly common. This will impact on how work experience is calculated. If work experience is to be expressed in full-time terms, for part-time workers this can be calculated pro-rata. For example, if the requirement is for 3 years of relevant full-time work experience, if part-time work is at 50% of a full-time load, the applicant must be able to demonstrate they have worked in that occupation on a part-time basis for 6 years.

Work experience can be obtained in or outside Australia

The work experience requirement can be satisfied by any combination of overseas and Australian employment[2].

[2] PAM3 - MIGRATION REGULATIONS - SCHEDULES > PAM - Sch2 Visa 186 - Employer Nomination Scheme > Direct entry stream Paragraph 28.6

1. While the Tribunal acknowledges that it is not bound by the Departmental policy, in the circumstances of this application, it sees no reason to depart from it.

2. Therefore, on the basis of its calculations, the Tribunal finds that, at the time of application, the applicant had been employed part-time in Australia as a translator with St. Paul’s school for 36.5 months and for 43 months with Trung Tay in Vietnam. The Tribunal assesses this to be the fulltime equivalent of approximately 39 months (or 3 years and three months) fulltime employment in her nominated occupation of translator.

3. On this basis the Tribunal is satisfied that the applicant has been employed fulltime for three years at the level of skill required for the nominated occupation.

4. Therefore, for the above reasons, the applicant meets the requirements of cl.186.234(2)(b).

5. It follows that she meets the requirements of cl.186.234(2) at the time of application and it is unnecessary to consider cl.186.234(3).

6. For the above reasons, the Tribunal is satisfied that the applicant meets the requirements of cl.186.234(1) and therefore cl.186.234 as a whole.

CONCLUSION

1. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

   ·cl.186.234 of Schedule 2 to the Regulations

Mary-Ann Cooper
Member