1501504 (Migration)

[2015] AATA 3023

1501504 (Migration) [2015] AATA 3023 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TAHA EL HADDAD

CASE NUMBER:  1501504

DIBP REFERENCE(S):  CLF2012/213310

TRIBUNAL MEMBER:  David Dobell

DATE:1 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Employer Nomination (Residence) (Class BW) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 856 (Employer Nomination Scheme) visa:

·cl.856.213(b) of Schedule 2 to the Regulations

Statement made on 01 July 2015 at 9:33am

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 13 January 2015 to refuse to grant the applicant an Employer Nomination (Residence) (Class BW) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 June 2012 on the basis of proposed employment in the position of vehicle painter ANZSCO 324311. The position had been nominated for approval as an approved appointment under r.5.19 of the Migration Regulations 1994 (the Regulations).

3. At the time of application, Class BW contained two subclasses: Subclass 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme). As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting the requirements of r.5.19(2) of the Migration Regulations 1994 (the Regulations), the relevant subclass in the present case is Subclass 856. The criteria for this visa subclass are set out in Part 856 of Schedule 2 to Regulations.  

4. The applicant has previously been to the Tribunal. The visa application was first refused on 29 October 2013.  On 14 October 2014 the Tribunal remitted the application for this visa, finding that the applicant met cl.856.213(c) and cl.856.215.

5. Subsequently, the delegate refused to grant the visa because the applicant did not meet cl.856.213(b).

6. The applicant appeared before the Tribunal on 15 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. The applicant was represented in relation to the review by his registered migration agent, Mr Sam Kizana who attended the hearing by phone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal notes that the related nomination in this matter was approved on 29 October 2013.

10. On the visa application it is stated that the applicant started his employment as a vehicle painter with Ken Stokes Smash & Mechanical Repairs on 10 February 2009. The nominating employer is stated to be Polgage P/L as Trustee Baranowksi Family Trust, trading as Ken Stokes Smash Repairs. His stated remuneration is a base salary of $54,000.

11. As a result of the first Tribunal review the following documentary evidence was added to the Department file:

    • (1) Employer, undated letter, stating that the applicant is working for the company as a spray painter, (no dates etc)
    • (2) Employer, confirming that a full time position is still available
    • NSW Fair Trading, 19 August 2014, applicant, certificate as spray painter
    • Institute of Mechanical Engineers, 7 August 2014, passed IAME examination in spray painting
    • Chemspec certificate, 12 September 2011, applicant

12. The delegate stated in the decision record that he asked the representative to provide a detailed statement from the employer and PAYG Summaries for the years from 2010-2014 but these were not provided. The delegate states that the applicant has provided Notices of Assessment for 2009, 2010 and 2011 but the Tribunal notes these are not on the Department file. The applicant provided an undated letter from the employer but this was given no weight.

13. The following documentary evidence was provided to this Tribunal prior to hearing:

    • NOA- unreadable
    • PAYG Summary 2011-12, 1 July to 30 June, showing salary of $42,001pa
    • Tax return, 2012, showing this employment as his only income

14. At the hearing, the applicant said that he came here on 8 or 9 February 2009 and started working for Ken Stokes Smash Repairs that same month. He has been working there full-time since then.

15. He told the Tribunal that he is meant to be paid $44,000pa under the sponsorship but noted his salary had been $38,000 and $42,000pa.

16. The Tribunal explained to the applicant that it needed to see PAYG Summaries for the 2010, 2011 and 2012 financial years. He confirmed he was paid $38,000 in 2009/10 and $42,000 in 2011/12.

17. The Tribunal said it also needed a Statutory Declaration from the owner of the business as to when he worked there, whether it was full-time, and in what position, to be satisfied that he had worked there as a vehicle painter full time as claimed.

18. The Tribunal said that as he was not being paid the salary he was nominated for that this might mean he was not working full-time in the relevant period. Alternatively, he may have been working full-time and the sponsor has been underpaying him. The Tribunal noted that there may be serious consequences to sponsorship in such circumstances.  He would need to explain this.

19. The Tribunal asked whether he ever had taken any unpaid leave. He said he had two weeks paid leave in 2012 but had not taken unpaid leave at any time.

20. The Tribunal gave the applicant 2 weeks to provide further documentary evidence as discussed.

21. On 25 May 2015 the representative provided the following:

    ·A representative submission dated 20 May 2015

    ·PAYG Payment Summary, 2011-12, full year, showing gross income as $42,001

    ·PAYG Payment Summary, 2010-11, full year, showing gross income as $47,348

    ·ATO website, information on deductions that can be claimed

    ·Polgage Pty Ltd t/a Ken Stokes, Payroll Activity Summary, review applicant, showing wages of $42,001.61 for 2011/12

    ·Ken Stokes Smash Repairs, 22 May 2015, Bob Baranowski, Director, stating that the applicant has been employed full-time as a vehicle painter from February 2009

    ·Lebanon passport, applicant, showing departure on 23 December 2011 and return on 15 January 2012

22. The submission from the representative stated as follows:

    ·That the applicant took unpaid leave for 3 weeks from 23 December 2011 until 15 January 2012, and so this caused his gross income to drop to $42,001 for that financial year

    ·That the applicant’s Notice of Assessment for 2012 was $38,312 because of certain tax deductions, but his gross income was $42,001

23. The delegate in this matter found that the applicant did not meet cl.856.213(b)(iii), which states:

    (iii)     the applicant:

    (A)     holds a Subclass 418, 421, 422, 428, 444, 457 or 461 visa; and

    (B)     has worked full-time in the occupation to which the appointment relates in Australia, while holding a visa of a subclass mentioned in sub-subparagraph (A), for at least the period of 2 years immediately before making the application; and

    (C)     has worked full-time for the employer mentioned in paragraph (a), and in the occupation to which the appointment relates, while holding a visa of a subclass mentioned in sub-subparagraph (A), for at least the period of 1 year immediately before making the application;

24. The Department’s movement records show that the applicant held a subclass 457 visa from 23 January 2009 and arrived in Australia on 9 February 2009. Thus he held a specified visa as at the time of visa application and meets cl.856.213(b)(iii)(A).

25. As to cl.856.213(b)(iii)(B), despite the failure of the applicant and his representative to provide a Statutory Declaration from the employer, as requested, and more significantly, the failure to provide the 2009/10 PAYG Summary as requested, the Tribunal finds on the oral and documentary evidence before it that the applicant has worked full-time as a vehicle painter at Ken Stokes Smash Repairs since February 2009.

26. The Tribunal found the applicant himself to be a witness of truth in this regard. Thus he worked for at least 2 years immediately prior to 29 June 2012 in the occupation to which the appointment related. Hence he meets this requirement.

27. As to cl.856.213(b)(iii)(C), the Tribunal is satisfied that the applicant has worked for the nominator full-time as a vehicle painter whilst holding a subclass 457 visa for at least one year immediately prior to 29 June 2012 and hence meets this requirement also.

28. Thus the applicant meets the requirements of cl.856.213(b) as a whole.

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

30. The Tribunal wishes to make a few comments on this matter for the benefit of the applicant and the Department.

31. In the course of conducting this hearing, the Tribunal noted that the subclass 457 visa was approved at a salary of $44,000 pa. This was acknowledged by the applicant and the representative.

32. The evidence before the Tribunal is that he was paid $38,000 in the 2009/10 financial year (applicant’s oral evidence), $47,348 in the 2010/11 financial year and $42,001 in the 2011/12 financial year. The Tribunal requested PAYG Summaries for the above three years but was only provided those for the latter two years.

33. The Tribunal considers that there is evidence of underpayment by the employer in respect of this subclass 457 visa employee, in breach of sponsorship obligations.

34. The representative has claimed, in relation to the 2011/12 year, that the applicant took unpaid leave, as he had used up all his paid leave, and this explained why his salary was below $44,000. However, no documentary evidence to support this claim was provided. Further, the applicant said at hearing that he had never taken any unpaid leave whilst employed there.

35. The Tribunal considers that the applicant may have been a victim of an unscrupulous employer and the Department may wish to further investigate this matter.

    DECISION

36. The Tribunal remits the application for an Employer Nomination (Residence) (Class BW) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 856 (Employer Nomination Scheme) visa:

    ·cl.856.213(b) of Schedule 2 to the Regulations

    David Dobell

    
    

    Member