1516064 (Migration)

[2016] AATA 4716

1516064 (Migration) [2016] AATA 4716 (28 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr James Brian Meakins

CASE NUMBER:  1516064

DIBP REFERENCE(S):  BCC2015/1990752

MEMBER:Miriam Holmes

DATE:28 November 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 489 visa:

·cl.489.224 of Schedule 2 to the Regulations.

Statement made on 28 November 2016 at 4:03pm

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 4 November 2015 to refuse to grant the applicant a Skilled - Regional Sponsored (Provisional) (Class SP) Subclass 489 (Skilled - Regional (Provisional) visa under s.65 of the Migration Act 1958 (the Act). This is a points based visa with two streams of which the ‘First Provisional Visa Stream’ is available to skilled applicants who submitted an expression of interest and received an invitation to apply for the visa.

2. The applicant was invited to apply for the visa on 5 June 2015 and applied for the visa on 10 July 2015. The criteria for the grant of a Subclass 489 visa are set out in Part 489 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants who were invited to apply must satisfy the criteria for the ‘First Provisional Visa stream’. The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.489.224.

3. The applicant appeared before the Tribunal on 14 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Adrian Kolanski, employer.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant satisfies the points test criterion which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:

   ·is not less than the score stated in the invitation to apply for the visa and

   ·is not less than the ‘qualifying score’.

6. Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (r.2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s.94 of the Act), which is set by the Minister from time to time under s.96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss.93 and 350 of the Act).

7. Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 16/060. In the present case, the applicant nominated the occupation of Wall & Floor Tiler.

   Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?

   Part 6D.1 – Age qualifications

8. Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.

9. At the time of invitation the applicant was aged 29 years. Therefore, the applicant is entitled to 30 points under this part.

   Part 6D.2 – English language qualifications

10. Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa. At the time of invitation to apply the applicant had not undertake any of the specified English language proficiency tests.

11. Therefore, the applicant is entitled to no points under this part.

    Part 6D.3 – Overseas employment experience qualifications

12. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for at least 36, 60, or 96 months in the 10 years immediately before that time.

13. The applicant was employed overseas. However his work experience in England was as a  labourer creating displays for commercial usage in warehouses and retail tile shops, installation of tile displays and ordering. Therefore the Tribunal is not satisfied this employment was in the nominated skilled occupation of Wall & Floor Tiler. The Tribunal is not satisfied that the applicant has any past employment in the nominated skilled occupation or closely related skilled occupation. 

14. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

    Part 6D.4 – Australian employment qualifications

15. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

16. The central issue in this case is whether the applicant should be credited any points for Australian employment experience in the nominated occupation of wall and floor tiler. The applicant submitted a range of evidence and submitted that he has demonstrated that he has a been employed in Australia in the nominated skilled occupation for a period totalling at least 12 months and less than 36 months in the 10 years immediately before the time of invitation to apply for the visa.

17. The Tribunal has considered the evidence below and is satisfied that the applicant had, at the time of invitation to apply for the visa, been employed in Australia in the nominated occupation or a closely related skilled occupation for at least 12 months in the 10 years immediately before that time. In reaching this conclusion the Tribunal took into consideration that the skilled occupation is wall and floor tiler, and for the purposes of this item that to be “employed” the applicant must have engaged in an occupation for at least 20 hours per week (r.2.26AC(6) and that he must have been employed whilst holding either a substantive visa, a Bridging Visa A or Bridging visa B (r.2.27C).

18. The Tribunal finds the nominated skilled occupation of wall and floor tiler is specified as a skilled occupation for the purposes of a sc489 visa (see IMMI 16/060).

19. The applicant states that he was employed in Australia in the nominated skilled occupation between – November 2011 and September 2012 and between August 2013 and October 2014 with three different employers. The Tribunal finds based on the applicant’s oral evidence and the movement records that in those periods the applicant held the following visas and that he complied with the visa conditions:

    ·    Student (subclass 572) visa for period 3 September 2010 to 11 December 2012

    ·    Graduate skilled (subclass 845) visa for the period 15 April 2013 to 15 October 2014

    WA Tiling and Stone

20. In relation to the applicant’s employment at WA Tiling and Stone, the applicant gave oral evidence and provided a range of documentary evidence to the Department and the Tribunal. The documentary evidence included payslips, PAYG summary for 2012 financial year, bank statements and letter dated 4 October 2012 from the Director of the business. The Director states that the applicant was employed by WA Tiling and Stone between December 2011 and August 2012 and completed 498 hours of paid labour.  The Tribunal notes that the payslips list the applicant as a labourer, however the Director states that the applicant undertook a range of duties and applied several skills and trade techniques, including, preparing surfaces to be tiled, the mixing and application of screed, water proofing, priming mixing adhesive, measuring tiles and cutting tiles to size and specifics of job, tiling pools, showers, walls and floors. The Director also describes the range of tools used by the applicant (eg wet saws, various cutters, grinders etc) during the period of his employment. On the information available the Tribunal is satisfied that the applicant was employed in the nominated skilled occupation in Australia by WA Tiling and Stone for a period of 25 weeks (ie 498 hours divided by 20 hours) using the methodology applied by the delegate.

    Innovative Tiling & Stone

21. In relation to the applicant’s employment at Innovative Tiling & Stone, the applicant gave oral evidence to the Tribunal and also provided documentary evidence. The Tribunal also spoke by telephone with Mr Adrian Kolanski (on a mobile number provided during the hearing) a co-owner of the business.  The documentary evidence included work journals maintained for the TRA, tax invoices to Innovative Tiling & Stone, a letter from the applicant’s accountant, completed tax return for 2014 and ATO notice of assessment and registration of the employer with TRA.

22. The applicant told the Tribunal that he was a subcontractor to Innovative Tiling & Stone. He was registered with an ABN. He was paid a daily rate of $220 per day, irrespective of the number of hours he worked for Innovative Tiling & Stone. His work primarily involved tiling newly built homes. Innovative Tiling & Stone was subcontracting to the builder. The applicant stated that the builder was building a number of new homes and the applicant moved from home to home to undertake the tiling. He worked most days each week, about 40 hours a week. A few times it was quiet. He invoiced $220 per day, although did not charge GST and he has not completed any BAS records for the period. The applicant stated that at that time he was paid by bank transfer into his girlfriend’s bank account. He uploaded these bank statements to the TRA – and he does not have a copy of these bank statements – he assumes TRA does.

23. The applicant relied on his employment and work experience at Innovative Tiling & Stone for the purposes of his TRA assessment. Innovative Tiling & Stone registered as an employer with the TRA, and the applicant provided a copy of the registration. The applicant documented his work duties in a journal that he completed each month and then uploaded quarterly to the TRA system.

24. The applicant has attempted on a number of occasions to obtain a work reference from Mr Kolanski, however Mr Kolanski did not agree to write one. Although in one email Mr Kolanski agreed he would prepare a reference if the applicant returned to work for him (see copy provided to Tribunal). The Tribunal spoke with Mr Kolanski and he confirmed that he did subcontract the applicant as a tiler and he was paid a daily rate of $220 per day. He confirmed that the employment was a few years ago for a few months, but he could not remember the dates. He confirmed the applicant undertook multiple jobs tiling walls and floors in new houses and one job that took a few months. He confirmed the applicant provided invoices for his work, although he remembered the invoices were probably sent fortnightly – or ad hoc. He stated that he paid the applicant sometimes in cash and sometimes by bank transfer – it depended on the job and how Innovative Tiling & Stone was paid by the customer. He confirmed the applicant worked variable hours each day – some days 5 hours, other days 12 hours.  

25. The weekly tax invoices provided by the applicant are for the period 7 August 2013 to 12 November 2013. The tax invoices showed that in the period August to November 2013  the applicant charged for 4 or 5 days most weeks and that he usually worked at least 8 hours per day or more. The Tribunal accepts that tax invoices in themselves are of limited evidentiary value, however after considering the employer registration with TRA, the applicant’s oral evidence, the employer’s evidence and the TRA work journals, and the successful TRA skills assessment, the Tribunal accepts that the applicant worked for Innovative Tiling & Stone between 7 August 2013 and 12 November 2013. The Tribunal calculated that the applicant worked in the vicinity of 468.5 hours based on the tax invoices. The Tribunal considered that 468.5 hours calculated to 23 weeks (ie 468.5 divided by 20 hours) if the method used by the delegate was adopted or alternatively to 13 actual weeks (ie 7 August 2013 to 12 November 2013) of working 20 hours or more for the employer.

26. The Tribunal notes that in the visa application the applicant listed that he worked at Innovative Tiling & Stone from 8 July 2013 to 13 December 2013. However, at the hearing he stated that his invoices were accurate for the period he was employed by Innovative Tiling & Stone.

    Essential Tiling

27. In relation to the applicant’s employment at Essential Tiling, the applicant gave oral evidence to the Tribunal and also provided documentary evidence. The Tribunal attempted to telephone Mr Michalski, the former employer from Essential Tiling, however he did not answer the telephone call.  The documentary evidence included work journals maintained for the TRA, tax invoices to Essential Tiling, a letter from the applicant’s accountant, completed tax return for 2014 and ATO notice of assessment, registration of the employer with TRA, bank statements showing deposits into the applicant’s bank account and TRA site visit report indicating that TRA spoke with the employer, Mr Michalski.

28. The applicant stated that he started with Essential Tiling, who was a subcontractor to Giorgi Homes. He stated that he worked on large homes and worked on the same projects for an extended period. For example, he worked at a home in Applecross for a while where he laid floor tiles, and worked on the bathrooms, laundry - he was there a few months. He was not sure of the pay rate for that job. The applicant stated that he also worked at Riverway and Bagot. He said that he worked mostly full time in the period, although near the end there was not as much work. The applicant stated that sometimes he was paid cash and sometimes by bank transfer. 

29. The applicant stated he tried to get references but the employer did not respond to his contacts (phone and email).

30. The applicant told the Tribunal that he subcontracted to Essential Tiling. He worked on an hourly rate at $25 per hour. The Tribunal noted that based on the invoices he had provided, the Tribunal had calculated different hourly rates for different periods – for example the invoice for 21 February 2014 was $650 for 28 hours and the invoice for 7 July 2014 was $600 for 38 hours, which resulted in 2 different hourly rates - $23.20 and $15.70 – which is a marked difference in the hourly rate. The applicant could not explain this difference, other than to say one invoice might have been for a specific job with a quoted price. The Tribunal also highlighted the difference in 2 weeks for the same hours – where for 40 hours the applicant invoiced $900 on 1 March 2014 and invoiced $925 in invoice on 28 March 2014. The applicant was not sure why there a difference in the invoicing for the same hours of work for the same subcontractor.  He said some weeks he would work 55 hours and other weeks he worked 2 – 3 days. The applicant explained that Essential Tiling had set fees for some jobs. He sent invoices every week.

31. The Tribunal had regard to the tax invoices and notes that they have been issued by the applicant to Essential Tiling for the period 21 February 2014 to 8 October 2014. In most weeks the invoices exceed 20 hours. The Tribunal calculated there were 25 actual weeks in the period where the applicant was employed in excess of 20 hours of work in the period for Essential Tiling – based on the hours written on the tax invoices.

32. The applicant provided bank statements showing bank transfers from Essential Tiling. For example there were payments made on 5 March, 26 May, 14, 21, 27 August 2014 which correlate with invoices in the same period for the same amount (usually the day after). It is odd that a number of payments to the bank account appear to be before the invoice date, however the Tribunal accepts based on the bank statements that the applicant was paid as a tiler by Essential Tiling in the period.

33. The applicant stated that he kept the work journals for his work at Essential Tiling and he uploaded these to the TRA system. Essential Tiling also registered with TRA. The applicant also provided a TRA workplace assessment report. In that report it notes that on 5 September 2014 TRA visited the applicant at Applecross and also spoke with the employer, Andrew Michalski. It is clear the TRA officer spoke with the employer to verify the applicant’s work history and skills as a tiler and that the TRA assessor was impressed with the applicant’s knowledge of his trade and skills.

34. After considering, the available evidence the Tribunal is satisfied that the applicant was employed by Essential Tiling in the period from   21 February 2014 to 8 October 2014 for 25 actual weeks in the period (where the applicant was employed in excess of 20 hours of work each week).

35. Therefore, the Tribunal finds that at the time of invitation, the applicant had been employed in Australia in the nominated skilled occupation for a period totalling at least 12 months and less than 36 months in the relevant period.

36. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 5 points under this part.

    Part 6D.5 - Aggregating points for employment experience qualifications

37. Under this part, if an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4 and the combined number of points that would be awarded under those Parts is more than 20 points, 20 points must be given under this Part for the qualifications and no points are to be given under Part 6D.3 or 6D.4.

38. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 5 points. As the applicant had no points under Part 6D.3 the applicant is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

39. Five points are available under this part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in an instrument) in Australia in the nominated occupation or a closely related skilled occupation for at least 12 months in the immediately preceding 48 months.

40. The applicant gave evidence he had not, at the time of invitation, completed a professional year (as defined in r.2.26AC(6))  in Australia in the nominated skilled occupation or a closely related occupation.

41. Therefore, the applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

42. An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard. In determining whether an overseas qualification is of a ‘recognised standard’ (items 6D71(b), 6D72(b)), regard must be had to the matters set out in r.2.26AC(5) which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, duration of the study and any other relevant matter.

43. The Tribunal had regard to a completion letter dated 10 October 2012 from Silver Trowel Trade Training. The applicant was awarded a trade qualification, specifically a Certificate III in Wall & Floor Tiling through Silver Trowel Trade Training, after attending the course between 11 October 2010 and 11 October 2012 at the campus in Cannington, Western Australia. The course was full time and conducted in English.  Therefore the Tribunal finds that the applicant is entitled to 10 points under this part.

    Part 6D.7A – Specialist educational qualifications

1. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in r.2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a masters degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.

2. There are no claims made in respect of the points in this Part as these points were not available at the time of the primary decision because it was made before 10 September 2016.

3. Therefore, the applicant is entitled to no points under this part.

   Part 6D.8 – Australian study qualifications

4. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in r.1.15F of the Regulations. To meet the study requirement, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study, and completed them in a total of at least 16 calendar months as a result of a total of at least 2 academic years study.

5. The Tribunal had regard to a completion letter dated 10 October 2012 from Silver Trowel Trade Training. The applicant was awarded a trade qualification, specifically a Certificate III in Wall & Floor Tiling through undertaking the course at Silver Trowel Trade Training between 11 October 2010 and 11 October 2012 at the campus in Cannington, Western Australia. The course was full time and conducted in English. This course was undertaken whilst the applicant was the holder of a student (subclass 572) visa. The Tribunal is satisfied that the qualification was as a result of studying a course that was a registered course, that was completed as a result of at least 2 academic years study.

6. The Tribunal is satisfied that the Australian study requirement had been met as the time of invitation.

7. As the Australian study requirement had been met at the time of invitation, the applicant is entitled to 5 points under this part.

   Part 6D.9 – Credentialled community language qualifications

8. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.

9. There are no claims made in respect of the points in this Part.

10. Therefore, the applicant is entitled to no points under this part.

    Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications

11. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement (as defined in r.1.15F), and that study was undertaken, and the applicant lived, in a specified area of Australia. Distance education does not qualify as study for these purposes.

12. At the time of invitation, the applicant had completed the Australian study requirement and had undertaken his studies at Silver Trowel Trade Training in Cannington, WA, postcode 6107.

13. Therefore, the applicant is entitled to no points under this part.

    Part 6D.11 – Partner Skill Qualifications

14. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is also an applicant for the same visa subclass and is not an Australian citizen or permanent resident. At the time the applicant was invited to apply for the visa, the spouse / partner must have been under 50 years of age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.

15. There are no claims made in respect of the points in this Part.

16. Therefore, the applicant is entitled to no points under this part.

    Part 6D.12 – State or Territory nomination qualifications

17. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.

    Part 6D.13 – Designated area sponsorship qualifications

18. Points are available under this Part for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa, where the relevant agency has not withdrawn the nomination or if the applicant was sponsored by a family member, the Minister has accepted the sponsorship. The applicant in this case was invited to apply for a Subclass 489 visa.

19. The applicant was sponsored by a family member, his mother, who is the holder of a permanent visa and this sponsorship has been accepted by the Minister.

20. Therefore, the applicant is entitled to 10 points under this part.

    Conclusion on points

21. Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6D is:

    6D.1 - Age  30 points

    6D.2 - English language  0 points

    6D.3 - Overseas employment experience  0 points

    6D.4 - Australian employment experience  5 points

    6D.5 - Aggregated employment  0 points

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  10 points

    6D.8 - Australian study  5 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in regional / low-population area  0 points

    6D.11 - Partner skill  0 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated area sponsorship  10 points

    Total points  60 points

22. The applicant’s assessed score under the points system is therefore 60 points.

23. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant has therefore achieved the qualifying score to pass the points test.

    Has the applicant achieved the score stated in the invitation to apply for the visa?

24. It is also a requirement that the applicant’s score is not less than the score stated in the invitation to apply for the visa. The written invitation given to the applicant stated a score of 60 points. On the basis of the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

25. For the above reasons, the applicant is entitled to a maximum of 60 points under the points test. As the applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl.489.224, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

26. The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 489 visa:

    ·cl.489.224 of Schedule 2 to the Regulations.

    Miriam Holmes
    Senior Member