Addepalli (Migration)

[2023] AATA 1857

Addepalli (Migration) [2023] AATA 1857 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeevadaramu Addepalli

REPRESENTATIVE:  Mr Resh Satyadas (MARN: 0636079)

CASE NUMBER:  2012213

HOME AFFAIRS REFERENCE(S):          BCC2019/3361424

MEMBER:Amanda Mendes Da Costa

DATE:13 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

The Tribunal refers the applicant’s case to the Department for consideration by the Minister pursuant to s 351 of the Act.

Statement made on 13 June 2023 at  8.06am

CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled - Regional) – one year of full-time work in specified regional area while holding specified visa – full-time, part-time and concurrent work for three relevant employers does not add to one year – study and work history and community activities – current related employment in region and sector with skills shortages, and value to employer – supporting statements – referred for ministerial consideration – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351

Migration Regulations 1994 (Cth), Schedule 2, cls 887.111, 887.212, 887.213

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 Home Affairs on 10 July 2020 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 4 July 2019. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 887.213 of Schedule 2 to the Regulations because he had not demonstrated that he had worked full-time in a specified regional area for a total of at least one year as the holder of one or more of the visas mentioned in cl 887.212.

4. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 24 May 2023 to give evidence and present arguments.

5. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not be conducted by video.  The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

6. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.  The Tribunal also explained the role of the applicant’s representative during the hearing.  The Tribunal informed the applicant that it would seek submissions from both of the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

7. The applicant was represented in relation to the review, with his representative also participating in the hearing.

8. The documentation provided to the Tribunal (prior to the hearing) for the purpose of the review application includes the following:

   ·Written submissions dated 17 May 2023.

   ·Letter of support, Gary Fry, Regional Development Australia, dated 17 May 2023.

   ·Reference, Graham East, EdAlive, dated 12 May 2023.

   ·Reference, Associate Professor James Brinkhoff, University of New England, dated 15 May 2023.

   ·Reference, Richard Lee, dated 7 May 2023.

   ·Reference, Anthea Cuddihy, CQUniversity Australia, dated 22 May 2023.

   ·Applicant’s medical records Armidale Health Service, dated 31 March 2023.

   ·Applicant’s medical records dated 28 June 2022.

   ·Reference, Terence Woolley, Phoenix, dated 17 May 2023.

   ·Reference, David Jarrott, dated 26 June 2020.

   ·Reference, Dr Ian Pennicook, dated 25 June 2020.

   ·Reference, Regional Development Australia, Mareeca Flannery, dated 8 January 2016.

   ·Bundle of emails between the applicant and Skilled Migration Tasmania.

   ·Reference, Stephen Durkin, Engineers Australia, dated 8 September 2014.

   ·Reference, Michael Harkin, dated 13 March 2014.

   ·Reference, Freddie Oliver, Rio Tinto, dated 3 January 2014.

   ·Applicant’s Certificate of Baptism, dated 31 August 2012.

   ·Confirmation of Employment, Charlotte Wood, dated 20 March 2014.

   ·Certificate of Appreciation, School of Engineering & Technology, Central Queensland (CQ) University, Australia, dated 13 August 20145.

9. In making its decision, the Tribunal has considered the material in both the Departmental and Tribunal files.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl 887.213 of Schedule 2 to the Regulations.

    Work in a regional area

12. Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl 887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

    Background

13. The applicant has held the following visas (mentioned in cl 887.212) for the following periods of time:

    ·Bridging A (Class WA) visa from 9 April 2015 to 6 July 2015.

    ·Skilled-Regional Sponsored (Provisional) (Class SP) visa from 6 July 2015 to 6 July 2019.

14. Therefore, the duration of time in which the applicant may include employment for the purposes of cl 887.213 is from 9 April 2015 to the date of the lodgement of the current visa application which is 4 July 2019.

15. In making their assessment of the applicant’s work hours during the above period, the delegate relied on Departmental policy which refers to information from the Australian bureau of Statistics which states that a full-time position is one which normally requires 35 hours per week, although there may be some positions where a full-time position involves less than 35 hours per week.

16. Departmental policy states that any work for less than 30 hours per week should not be regarded as full-time work.  However, it notes that where necessary an applicant for a subclass 887 visa may “add together” the hours worked in two part-time or casual jobs to meet the full-time work requirement.

17. The applicant provided the Department with a Form 80 (dated 4 July 2019) in which he states that his employment during the relevant period is as follows:

Period of time	Employer
June 2014 to June 2015	Unemployed due to studying
June 2015 to June 2016	Unemployed
February 2016 to February 2018	Supreme Castings Bharat Engineering Works, India
March 2018 to April 2018	Unemployed
June 2018 to December 2018	Tyree Industries, Mittagong, New South Wales (NSW), Australia
January 2019 to 4 July 2019	Coles Supermarket, Bowral, NSW
April 2019 to July 2019	Oporto, Mittagong, NSW
May 2019 to July 2019	Self-employed, Mittagong, NSW

1. Given that employment outside Australia cannot count towards the assessment of cl 887.213, the applicant’s employment in India from February 2016 to February 2018 was not considered by the delegate in making their decision.

2. The applicant provided the Department with payslips in relation to his employment with Tyree Industries, Coles Supermarket and Oporto during the period June 2018 to July 2019.

3. The delegate’s assessment was that these payslips showed that the applicant worked the following hours for each employer:

   Tyree Industries

   ·     The applicant worked 15 hours at 35 hours per week or more.

   ·     The applicant worked 5 weeks at 30 hours to 35 hours per week.

   ·     The applicant worked four weeks at less than 30 hours and therefore are not considered full-time work for the purpose of cl 887.213.

   Coles Supermarket

   ·     The applicant worked no weeks for 35 hours or more.

   ·     The applicant worked one week at 30 hours to 35 hours per week.

   ·     The applicant worked 11 weeks at less than 30 hours and therefore are not considered full-time for the purpose of cl 887.213.

   Oporto

   ·     The applicant worked no hours at 35 hours per week or more.

   ·     The applicant worked no hours at 30 hours to 35 hours per week.

   ·     The applicant worked 12 weeks at less than 30 hours per week and therefore are not considered full-time for the purpose of cl 887.213.

4. The applicant’s employment at the Coles Supermarket was partially concurrent with his employment at Oporto.  The applicant has met nine weeks of employment of 35 hours per week or more combined with the hours of Coles and Oporto and has demonstrated an additional three weeks of employment of 30-35 hours per week on combined employment.

5. The delegate was satisfied that the number of hours that the applicant performed full-time work (being at least 35 hours) is 24 weeks within the relevant period of 9 April 2015 to 4 July 2019.  However, the delegate found that even if the number of weeks of employment that were 30 to 35 hours per week were to be counted as full-time work, the number of weeks totalling 30 hours pr week or more totals only 33 weeks within the relevant period of 9 April 2015 to 4 July 2019.

6. The delegate noted that the applicant had not provided any evidence of self-employment from May 2019 to July 2019 and that in any event this time period was also concurrent with the applicants employment at Coles Supermarket and Oporto.

7. Based on the above information, the delegate was not satisfied that in the relevant period, the applicant worked full-time for a total of at least one year.

   Applicant’s evidence at the hearing

8. The applicant is a national of India who graduated with a Bachelor’s degree in Mechanical Engineering from Bangalore University in 2003.

9. The applicant worked as an engineer in various companies in India between 2003 and 2010 as a mechanical/project engineer.

10. From July 2010 to August 2012, the applicant worked for a company in India (Infosys BPO Limited and was subsequently seconded to the company’s Australia office, on a Subclass 457 visa.

11. Infosys BPO Limited sponsored him for a Subclass 457 visa and during this employment he worked for one of their major clients, Rio Tinto - a global mining group - for their Regional Mines located in Pilbara region, covering Hope Downs, Paraburdoo, Newman, Tom Price mine sites in Western Australia. 

12. On his return to India, he continued to work on Rio Tinto projects from offshore in India.

13. The applicant was invited to return to Australia by Rio Tinto on a Subclass 457 where he worked at mine sites located in the regional city of Mackay, Queensland from November 2011 to August 2012.

14. He was subsequently employed by Macquarie Generation to work in Muswellbrook 2333 NSW, on a project for the NSW Government in a transformation and change management role to combat savings and revenues for the company. The company was making a trading loss and the applicant was engaged as a Category Specialist – Engineering materials and services.

15. The applicant worked for Macquarie Generation on a Subclass 457 visa from November 2012 to February 2014.  In this role assisted in increasing the revenue of this NSW Government owned firm.  After working for more than a decade in engineering industries, the applicant decided to pursue a Master’s degree in Engineering Management which he completed at Central Queensland University, Sydney campus from June 2014 to November 2015 on a Subclass 573 Student visa.

16. The applicant then obtained a Skills Assessment as an Engineer and became a member of Engineers Australia. He also undertook leadership and management training with Engineers Australia.   

17. The applicant provided guidance to Australian domestic undergraduate engineering students at CQ University Mackay 4740 Queensland campus students, as part of ‘The Global Canopy Research Project’, a Federal Government initiative.

18. In July 2015, the applicant was granted a Subclass 489 visa and  established his residence and employment in the regional area of New South Wales. He initially lived in Goulburn NSW and then relocated to Queanbeyan NSW 2620 in July 2015, remaining there till November 2015. 

19. On 28 October 2015 the applicant received an opportunity to apply for Subclass 190 visa through the Tasmanian government.  However, the applicant declined the offer because he preferred to remain in regional NSW.  He intended to continue living and working in regional NSW regional where he could meet the requirements under the Subclass 489 visa and then apply for a Subclass 887 visa which would enable him to settle in Regional NSW.

20. However, the applicant could not secure a stable job in his chosen field of Engineering in regional NSW - in and around the Southern Inland Region. He then moved to Muswellbrook NSW 2333 in December 2015 and stayed there until January 2016. 

21. During this period, he met with officers at the Regional Development Authority (RDA) Southern Inland to discuss his employment situation.  During these discussions, they  acknowledged the plight of Subclass 489 visa holders, as many employers in the region did not have the understanding of their ability to employ a person on this visa. RDA Southern Inland issued a letter to the applicant on 8^th January 2016 to assist him in obtaining employment in the region.

22. In 2014 the applicant’s mother died in India, which caused him considerable distress.  As his father had died several years previously, the applicant was the sole surviving male family member in the family, which in India brings significant family responsibilities.  The responsibility of taking care of his unmarried sister (living in India) fell upon his shoulders. 

23. Whilst in Australia the Australia converted from Hinduism to Christianity and was baptised at the Hillsong Church in Sydney, NSW.  His mother had also converted to Christianity and her funeral was conducted in accordance with Christian rites. This caused other members of the applicant’s family and their friends great unhappiness as the applicant’s family were strongly involved in the Hindu community.  This caused added distress to the applicant.

24. The applicant returned to India in January 2016 at the request of his sister who was experiencing difficulties in coping with the death of their mother and living alone without her mother and brother.  The applicant’s stay in India was unexpectedly prolonged while he attended to family matters and the health of his sister.  In order to support himself and his sister, he obtained employment with Supreme Castings Bharat Engineering Works as a Senior Consultant for Process Optimisation from February 2016 to February 2018.

25. As his Subclass 489 visa required him to return back to Australia and having managed to some extent to settle his sister, the applicant returned to Muswellbrook NSW 2333 (Regional NSW) in March 2018.  He then moved to Mittagong NSW 2575 in June 2018 after receiving an offer of employment from Tyree Transformers.

26. The applicant also worked for Oporto Corner Main Street & Alice Street, Mittagong 2575 (self-employed under ABN 96335494453) from April 2019 to July 2019, managing equipment and in food preparation. 

27. From January 2019 to September 2020, the applicant worked for Coles Supermarket, Bowral, NSW on a self-employed basis.

28. In July 2019 he started working for DFV Australia (on a self-employed basis) in Moss Vale NSW 2577 until January 2021.

29. In 2022 the applicant obtained full-time employment as an engineer with Phoenix Foundry in Uralla, NSW.  The applicant explained that his employer had been searching (unsuccessfully) for a person to fill the position for some months before he applied for the position.

30. During the hearing, the Tribunal discussed with the applicant the above assessment of his payslips and working hours and the delegate’s finding that his employment by Tyree, Coles Supermarket and Coles in the period June 2018 until July 2019 did not amount to full-time employment for a total of at least one year. Although the applicant conceded the above figures regarding his work hours, he explained that they did not include two weeks of leave payments and additional sums earned by him on a casual basis from small computer engineering jobs for individuals.

    Applicant’s supporting documentation

31. The applicant provided the Tribunal with numerous personal references from past and current employers, private individuals and community organizations.  These references uniformly show that:

    ·The applicant is an experienced engineer who has demonstrated dedication, skills and professionalism in his employment.  He holds professional membership of Engineers Australia.

    ·The applicant has previously been employed as Supply Chain Manager for Macquarie General between November 2012 and February 2014.

    ·The applicant was previously employed as a Senior Process Leader for Rio Tinto Procurement between July 2010 and August 2012.

    ·The applicant is currently employed by Phoenix Foundry in Uralla, NSW where he has been employed as an engineer since 2022.

    ·The applicant has made a significant contribution to the local community (including several charitable organizations) where he is living and is an active member of his church.

    ·There is a skills shortage in engineering and similar technical roles in regional areas.  Small cities rely on retaining skilled people to ensure the ongoing viability of local businesses.  It is difficult for businesses to retain suitability qualified and skilled staff in in these areas, with young professionals being unwilling to move from large cities to regional areas.

    ·Since graduation, the applicant has been a valued member of the CQ University alumni community, sharing his time and knowledge with various alumni volunteer programs.

    ·The Certificate of Appreciation recognizes the applicant’s support of undergraduate engineering students as part of The Global Canopy Research Program.

32. The Tribunal accepts the contents of these references and is satisfied that he is making a valuable contribution to the Armidale region in NSW as an engineer and to his local community as a volunteer for several charitable organizations, including the Australian Red Cross, Compassion Australia, Samaritans Purse, International Justice Mission and TEAR Australia.

    Post hearing submissions

33. At the conclusion of the hearing the applicant sought additional time in which to review the delegate’s calculation of his work hours in the relevant period and provide any additional submissions.  The Tribunal acceded to this request and gave the applicant seven days in which to provide any further documentation in support of the revie application.

34. On 6 June 2023 the applicant provided the Tribunal with post hearing submissions, in which he submitted that his employment history from 9 April 2015 until 4 July 2019 was as follows:

1. The applicant further submits:

   ·He has worked as a direct contractor (self-employed, under ABN) with Taylor Group Construction Pty Ltd. He worked for 35 hours per week from October 2015 - Nov 2015 (4 weeks) & in April - May 2018 (2 weeks).

   ·He then worked for Tyree Industries from June to December 2018 for a total of 24 weeks - 20 weeks of which were above 30 hours per week, 2 weeks above 20 hours per week and 2 weeks below 20 hours per week. 

   ·From December 2018 to March 2019, the applicant worked as a contractor for AJ Wahaab Group Pty Ltd.

   ·On January 2019, the applicant commenced working for Coles Supermarket. He also started employment with Oporto in April 2019. 

   ·In total, he has worked full time for 26 weeks from December 2018 - July 2019. His combined work hours as a contractor for Aj Wahaab and his employment with Coles & Oporto exceeded 30 hours per week.

2. The Tribunal notes that the applicant also provided an employment summary spreadsheet, invoices from Taylor Group Constructions Pty Ltd and AJ Wahaab Group Pty Ltd, bank statements from 2015 to 2019, letter of support (dated 2 June 2023) from the Honourable Adam Marshall (Member of Parliament), support letter (dated 30 May 2023) from Terence Woolley (CEO of Phoenix Foundry) and payslips from Tyree Industries, Coles Supermarket and Oporto.

3. The Tribunal is satisfied that the contents of the employment summary, invoices and payslips are consistent with the above information regarding the applicant’s employment history between July 2015 and July 2019.

4. The Tribunal further notes that in his letter of support, Mr Woolley states that he understands that the applicant is employed as a mechanical engineer with an Uralla-based business – Phoenix Foundry.

5. Mr Marshall commends the applicant’s highly sought-after professional skills but also as a valuable and involved member of the community.

6. He notes that the applicant has demonstrated an impressive commitment to the community and has stepped forward as a volunteer for groups such as the Salvation Army, Compassion Australia and various church-based groups.

7. In Mr Marshall’s opinion, the Northern Tablelands Region would be fortunate to secure the applicant as a permanent resident and Mr Marshall strongly supports the applicants visa application.

8. In his reference, Mr Woolley states:

   ·     I am writing this letter to further emphasize the exceptional value and contributions that Jeevadaramu ADDEPALLI brings to our organization, Phoenix Foundry. As the Chief Executive Officer, I have had the privilege of witnessing his outstanding skills and dedication firsthand, and I am confident that he is a vital asset to our company's present and future endeavours.

   ·     Jeevadaramu's impact on our operations has been remarkable. Notably, he played a pivotal role in optimizing the productivity of our recently acquired Laser engraving machine, the Epilog Fusion PRO 48 -1 20-watt C02, which had been underutilized due to a lack of efficient skills. Through his expertise and diligent efforts, Jeevadaramu successfully resolved various technical issues and has been actively collaborating with the Australian service provider and the original equipment manufacturer (OEM) based in America. His pursuit of cutting-edge technology and continuous improvements has ensured that the machine operates at its maximum efficiency, surpassing our competitors' capabilities.

   ·     Moreover, I am delighted to inform you that Phoenix Foundry has recently expanded its production capacity to meet the growing demands of our clients. To accomplish this, we have recruited six additional production staff members. Jeevadaramu has been instrumental ensuring a smooth integration and maintaining the high standards of quality and efficiency that define our organization.

   ·     In addition to his technical expertise, Jeevadaramu has showcased exceptional leadership and foresight by independently developing a comprehensive Business Continuity Plan (BCP) for our company. This plan has been crucial in mitigating risks, ensuring uninterrupted operations, and complying with environmental requirements and regulations. Jeevadaramu's self-initiative in creating the BCP without the need for external consultancy has not only saved costs but has also demonstrated his ability to think strategically and implement effective measures that benefit the company. His dedication to protecting the interests of Phoenix Foundry and ensuring its long-term sustainability has been greatly appreciated by the entire management team.

   ·     As part of our long-term strategic plan, Phoenix Foundry is actively pursuing automation in our foundry operations. This initiative aims to enhance production capabilities and implement advanced quality management systems. To fulfill this vision, we require a highly skilled engineer with global experience in foundry and machine shop operations. Jeevadaramu's diverse skill set, encompassing mechanical, metallurgical, quality, electrical, electronic, and computer engineering, makes him an exceptional fit for this role. His comprehensive understanding of business requirements, combined with his expertise in cutting-edge technologies, enables him to deliver innovative solutions and drive the company's success in an increasingly competitive market.

   ·     Jeevadaramu's experience at Kusalava International Limited, a major cylinder liner manufacturing company in India, has provided him with extensive exposure to automation, commitment to professional development and adherence to industry standards. I would also like to highlight that he is actively pursuing chartered membership with Engineers Australia, which will further enhance his skills and credibility. This accomplishment will not only benefit our company but also contribute to the wider Armidale community by fostering knowledge exchange and promoting engineering excellence.

   ·     It is important to note that individuals possessing Jeevadaramu's unique skill set, and expertise are rare to find, particularly in regional areas like Armidale. His continued presence within our organization is crucial to our future growth and success. Losing his talents would be a significant setback that would be challenging to overcome.

9. The applicant submits that the applicant would currently meet the requirement for the grant of a subclass 191 visa, which has replaced the subclass 887 visa, as the current rules do not require full-time employment in regional Australia, unlike the subclass 887 visa regime.

10. The applicant further submits that the applicant has demonstrated his strong commitment to live, work and actively contribute to regional Australia by continuously seeking employment opportunities and providing valuable services to the community.  This commitment is evident from the references submitted, which attest to the applicant’s character, work ethic and values.

    Findings

11. Having regard to the applicable definition in cl 887.111 and the evidence before it (including the payslips provided), the Tribunal is satisfied that the applicant worked in a specified regional area during the period March 2018 to July 2019, whilst he was the holder of bridging A and Skilled-Regional Sponsored (provisional) visas.  However, the Tribunal is not satisfied that the applicant worked on a full-time basis for a total of at least one year, during that period.

12. Accordingly, the applicant does not satisfy cl 887.213.

13. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 887 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    Referral for Ministerial consideration

14. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant if the Minister thinks that it is in the public interest to do so.

15. The Tribunal accepts the information conveyed in the references of Messrs Marshall and Woolley.  It finds that the applicant is a skilled and experienced mechanical engineer who is making a valuable contribution to his employer’s business in regional Australia.  It further accepts that the applicant provided assistance to the community organizations through voluntary work with numerous community and church-based groups.

16. The Tribunal has also taken into account the applicant’s commitment to securing employment in regional Australia and accepts that although was originally unable to obtain employment as a mechanical engineer, he was prepared to undertake work in a supermarket and as a cleaner in order to meet the work requirements for his visa application.

17. The Tribunal has further taken into account, the shortage of qualified engineers in regional Australia and the need for such professionals to live and work in regional Australia.

18. The Tribunal has considered the applicant’s case and ministerial guidelines relating to the discretionary power set out in PAM3 and will refer the matter to the Department.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

20. The Tribunal refers the applicant’s case to the Department for consideration by the Minister pursuant to s 351 of the Act.

    Amanda Mendes Da Costa
    Member