Angeleski (Migration)

[2021] AATA 3140

Angeleski (Migration) [2021] AATA 3140 (27 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yordan Angeleski
Mr Nicola Angeleski

CASE NUMBER:  1901581

HOME AFFAIRS REFERENCE(S):          BCC2018/860038

MEMBER:Mary Sheargold

DATE:27 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl 457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 27 July 2021 at 3:06pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Diesel Mechanic –applicant holds 2 relevant AQF Certificate III qualifications – applicant has the necessary skills, qualifications and employment background to perform the tasks in the nominated occupation – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 22 February 2018.

3. 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 (Cth) (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.

4. The delegate refused to grant the visas on 11 January 2019 on the basis that cl 457.223(4)(da) was not met because the primary applicant did not demonstrate that he had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Diesel Mechanic, ANZSCO 321212.

5. The Tribunal did not consider it necessary to conduct a hearing as it was able to find in favour of the visa applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl 457.223(4)(da).

9. On 8 July 2021, the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, requesting updated information to support their application.  Specifically, the Tribunal asked for current information about the applicant’s skills, qualifications and employment background.  A response was due by 22 July 2021.  On the same day, the applicants’ representative wrote to the Tribunal requesting an extension of time to respond to the request for information, and the Tribunal provided an extension to 5 August 2021. 

10. On 26 July 2021, the applicants’ representative provided brief written submissions and supporting documentary evidence including a copy of the primary applicant’s Certificate III in Automotive Diesel Engine Technology awarded on 18 April 2019, and his Certificate III in Heavy Commercial Vehicle Mechanical Technology awarded on 15 May 2019, along with payslips, a reference letter from his nominating sponsor, a job description for the nominated occupation, and a copy of the primary applicant’s current curriculum vitae.

11. The Tribunal has considered all of the documentary evidence before it in reaching its findings.

    Skills, qualification and employment background of the applicant

12. 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 addition, under cl 457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is Diesel Mechanic, ANZSO 321212.

13. ANZSCO sets out the indicative skill level for a Diesel Mechanic as AQF Certificate III including at least 2 years of on-the-job training, or AQF Certificate IV (ANZSCO skill level 3), or at least 3 years of relevant experience may substitute for the formal qualifications.

14. The applicants have provided evidence that the primary applicant holds 2 relevant AQF Certificate III qualifications granted in the months following the delegate’s decision.  The Tribunal notes the significant body of evidence in the form of payslips, employment confirmation letters, the primary applicant’s current curriculum vitae and job description, as well as the representative’s written submissions, demonstrating that he has worked as a Diesel Mechanic for his nominating sponsor for over 5 years.  Therefore, based on the evidence before the Tribunal at the time of its decision, the Tribunal finds that the applicant has demonstrated that he has the necessary skills, qualifications and employment background to perform the tasks in the nominated occupation

15. of Diesel Mechanic.

16. Based on all the evidence before it, the Tribunal is satisfied that the applicant has the skills and employment background to work in the nominated occupation of Diesel Mechanic, ANZSCO 321212.

17. For these reasons the applicant satisfies the requirements of cl 457.223(4)(da).

18. 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, including in relation to the secondary applicant.

    DECISION

19. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl 457.223(4)(da) of Schedule 2 to the Regulations.

    Mary Sheargold
    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

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    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.