Botrotsos (Migration)

[2018] AATA 2476

Botrotsos (Migration) [2018] AATA 2476 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ioannis Botrotsos
Ms Pilaiwan Botrotsos
Master Avaptisto Botrotsos

CASE NUMBER:  1615930

DIBP REFERENCE(S):  BCC2016/1557334

MEMBER:Sheridan Lee

DATE:8 June 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 08 June 2018 at 10:35am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard business sponsor stream – Whether the applicant has the skills, qualifications and employment backgrounds necessary to perform the tasks of the nominated occupation – Fibrous Plasterer – Applicant declined to attend hearing – Lack of evidence outlining relevant experience – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(da), 457.231

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 Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The primary applicant, Mr Ioannis Botrotsos (the applicant), and the members of his family unit, Ms Pilaiwan Botrotsos and Master Avaptisto Botrotsos, applied for the visas on 26 April 2016.

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 (the Regulations). One of the criteria to be satisfied at the time of decision requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa.

4. 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.

5. The delegate refused to grant the visas on 12 September 2016 on the basis that the primary applicant’s trades certificate and references were inconsistent with the level of skill required to perform the occupation of Fibrous Plasterer (ANZSCO 333211), as defined in the ANZSCO occupational dictionary (cl.457.223(4)(da)).

6. The applicant was invited to appear before the Tribunal to give evidence and present arguments. The invitation advised that the Tribunal had considered all the material before it relating to their application, but was unable to make a favourable decision on that information alone. However, on 1 June 2018, the applicant declined the invitation and requested that the Tribunal rely on submissions lodged on 21 April 2017. This matter has therefore been determined on the evidence available to the Tribunal.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills, qualification and employment background of the applicant

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

10. 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.

11. The ANZSCO occupation dictionary stipulates that the indicative skill level for occupations in the Plasterers occupation group (which includes Fibrous Plasterer), is an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV.

12. It goes on to outline that at least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. Registration or licensing may be required.

13. On 21 April 2017, the applicant, through his representative, made submissions as to his skills, qualifications and employment background.

14. The submissions outline that the applicant has a Certificate III in Wall and Ceiling Lining (CPC31211) from Trades College Australia, achieved on 16 June 2016. A copy of the certificate was supplied. The Tribunal notes that this qualification was gained through Recognition of Prior Learning assessment process, and the applicant did not provide evidence that he has two years on-the-job training. As such, the question is whether the applicant may substitute for the formal qualification with at least three years of relevant experience.

15. The submissions outline that the applicant has the following experience as a Fibrous Plasterer:

    ·1 July 2014 – current: Plaster Tech (sponsor), Victoria

    o full-time contractor, 1 May 2016 to present

    o part-time contractor 1 July 2014 to 30 April 2016

    ·30 October 2013 – 30 June 2014: Black Rock Plaster, Victoria

    o part-time contractor

    ·October 2002 – October 2012: Self-employed as Fibrous Plasterer, Greece

    o worked primarily with Interior Designers, Tintinidis, L, - A. Tsolakis O.E

    o partnership on Botrotsos Bros G.P. since October 2007.

16. Provided with the submission was a number of translated taxation assessments, issued in Greece, covering the years 2006 to 2015. The taxation assessments show the applicant generating an income over those years. For the three year period from 2013 to 2015, the tax assessments show the applicant generating an income ranging from €9,527.27 to €13,817.48 per annum during which time the applicant submits that he was working in Australia. In addition, the assessments do not list an occupation, and therefore provide little insight into the applicant’s experience as a Fibrous Plasterer.

17. As the applicant declined the invitation to appear, the Tribunal did not receive further information on the reason for providing the taxation assessments or an explanation for the declaration of an income in Greece while the applicant was working in Australia.

18. The applicant also submitted a translated agreement establishing a General Partnership of ‘Botrotsos Bros G.P.’, entered into in 2007 for the purposes of establishing a company. The purpose of the company is listed as ‘decoration-alteration of exterior and interior areas’. A receipt for the establishment fee was provided. This document was supplied as evidence that the applicant performed work as a Fibrous Plasterer prior to moving to Australia. However, the agreement does not stipulate what the applicant’s role in the partnership is. There is nothing to indicate that he would be undertaking work within the partnership as a fibrous plasterer.

19. Notably, the submission did not address the concerns raised by the delegate in the original decision. In particular, the delegate noted that the qualification provided by the applicant was obtained through a Recognition of Prior Learning assessment process, and it did not involve two years on-the-job training. The delegate also highlighted concerns with information provided about the applicant’s employment history.

20. The applicant supplied the Department with two letters from a previous employer, Kosmas Touretzoglou Construction Kavala. The first letter, dated 16 August 2016, outlined that the applicant was employed from October 2003 to October 2006. However, the main duties were listed as:

    ·using diagnostic tools to assess vehicles

    ·performing engine and transmission services

    ·removing and re-installing damaged motor parts

    ·changing spark plugs, leads, filters

    ·changing motor gaskets

    ·performing engine rebuilds with limited supervision.

21. The applicant then supplied a second letter of reference, dated 29 August 2015 [sic], from the same employer listing tasks analogous to the tasks of a Fibrous Plasterer. Both letters were provided by Mr Kosmas Touretsoglou (the Tribunal observes that this is spelt differently to the company name in the correspondence), the Director of Kosmas Touretzoglou Construction Kavala and Plaster Tech, the applicant’s current sponsor. No further letters of reference were provided by persons not party to the visa or nomination.

22. The Tribunal accepts that the applicant may have performed some work as a plasterer, both in Australia and in Greece. However, in the absence of any further verifiable evidence, the Tribunal cannot be satisfied that the experience is of the type or for the duration to substitute for formal qualifications.

23. As noted, the applicant was invited to appear before the Tribunal to give evidence and present arguments, however declined that invitation and requested the Tribunal rely on earlier written submissions. Without further evidence of the applicant’s skills, qualifications and experience, the Tribunal is not satisfied that the applicant has the background necessary to perform the tasks of the nominated occupation.

24. For these reasons the applicant does not satisfy the requirements of cl.457.223(4)(da).

25. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second and third named applicants do not satisfy the secondary criteria for a grant of a visa, as per cl.457.321 on the basis that they are not a member of a family unit of a person who holds a Subclass 457 visa.

26. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

27. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Sheridan Lee
    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.