Correa Doria (Migration)

[2021] AATA 4767

Correa Doria (Migration) [2021] AATA 4767 (30 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andres Felipe Correa Doria

CASE NUMBER:  1901839

HOME AFFAIRS REFERENCE(S):          BCC2018/915841

MEMBER:Karen McNamara

DATE:30 November 2021

PLACE OF DECISION:  Sydney

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

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

Statement made on 30 November 2021 at 3:40pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no approved nomination – full time employment – working in breach of Bridging visa conditions – employer’s business growth – nomination approved upon review – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 65, 140GB, 359
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 Mr Andres Felipe Correa Doria (the visa applicant) a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 26 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 visa on 7 January 2019 on the basis that cl 457.223(4)(a) was not met because the applicant was not the subject of an approved nomination by a standard business sponsor. The application made by the applicant’s prospective sponsor for nomination approval, had been refused by the Department.

5. The applicant applied to the Tribunal on 26 January 2019, for review of the delegate’s decision.

6. On 9 November 2021, the applicant appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Rachel Morris (the nominator) in the related matter for the nomination review application (AAT Case file 1836774). The related matters were heard concurrently in a combined hearing.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

   ADVERSE INFORMATION – Invitation to comment

8. On 10 November 2021, the Tribunal wrote to the applicant under s 359A of the Act. The invitation sought comment from the applicant and stated as follows;

   ‘…In conducting the review, we are required by the Migration Act 1958 to invite you to

   comment on or respond to certain information which we consider would, subject to
   your comments or response, be the reason, or a part of the reason, for affirming the
   decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·At the hearing, held on 9 November 2021, the Tribunal raised its concern that the evidence currently before it shows that you have engaged in full time employment with GWS Engineering & Construction Pty Ltd since July 2017, suggesting that you have worked in breach of your visa conditions.

   ·Department of Home Affairs records show that you were granted respective Bridging Visa A’s on 6 October 2017, 26 February 2018 and 1 June 2018 with all Bridging Visa A’s subject to 8105 condition. On 20 October 2016, 25 October 2017 and 13 October 2020, you were granted TU 500 visa’s also subject to 8105 condition.

   ·8105 condition provides (inter alia) (1) Subject to subclause (2), the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session. [emphasis added] (3) In this clause: fortnight means the period of 14 days commencing on a Monday.

   The aforementioned information is relevant because it suggests that you are in breach
   of your visa conditions.

   If the Tribunal relies on this information, it may find that you do not satisfy the
   requirements of cl.457.223(4)(f) and consequently the decision under review would be
   affirmed.

   Cl. 457.223(4)(f) requires:

   (a) there is no adverse information known to Immigration about the person who made the approved nomination or a person associated with that person; or

   (b) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination or a person associated with that person.

   You are invited to give comments on or respond to the above information in writing.

   The comments or response should be received by 24 November 2021. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator...’

9. On 24 November 2021, the applicant’s representative submitted the following response from the applicant:

   ‘…Thank you for your time reviewing my case. My name is Andres Felipe CORREA DORIA and I am writing to you in response to the concern raised during the hearing.

   I would like to present my message in two parts, firstly to outline the association with my employer from the early days of the business and the contribution to each other growth, secondly to explain the adverse effects I have experienced due to the uncertainty that the answer in the current process has caused, for your consideration.

   1. My employment

   I have worked for GWS Engineering & Construction, formerly known as Goodwill Welding Solutions, for over four years since July of 2017 and I must say that it has been a very enriching experience from a personal and professional point of view. When I started with the company, it was just me and Ashley, who is the owner and current Managing Director. We worked long hours on-site as subcontractors and during that time, I learned skills like handling tools, reading drawings, layout of work, manufacturing and installing steel products.

   As time went by, at the end of 2017, our clients were so satisfied with our work performance at the different construction sites that the amount of work started to increase and Ashley had to hire more labor, going from being a two-person company to have up to six workers in its books.

   At this point, GWS was already capable of taking two or three projects at a time, depending on the size of the project, and Ashley provided me with the opportunity to take full responsibility of a project at a time, as he knew that I was going to take care of every aspect of it such as safety, quality of materials, manufacturing processes and above all, that fulfilling and exceeding our client’s expectations was as important to me as it was for him.

   Things were going pretty well, and that's when Ashley decided to make the leap as a contractor and seek contracts directly with Australia's largest construction companies on government infrastructure projects such as Laing O'Rourke, John Holland, Lendlease, Multiplex, FDC, and others. For this, the company had to make a considerable investment in machinery, equipment and a space to carry out larger-scale manufacturing works. In addition, apart from the tools and machinery that were required, the company had to carry out a restructuring of the administrative and design side of the business, for which Ashley requested my help as the company didn’t have any admin staff at that time. I gladly took on this additional responsibility while alternating with my existing ones.

   The first project we listed was a Steel Strengthening for the Ghost Platform in Central Station Main Works, where the builder is Laing O’Rourke. For that Project, some of the tasks to which I collaborated were:

   - The creation of spreadsheets to quote the cost of the scope of works.

   - Carry out the calculation of the amount of materials necessary for manufacturing the Project through the plans provided by the builder.

   - Calculation of manufacturing and installation times of steel structures.

   - Purchase of materials

   - Assignment of amount of human resources for each manufacturing process and Project installation

   - Collaboration in the design of the Safe Work Method Statement (SWMS)

   After the success of this project, GWS began to have an almost exponential growth, and we began to list and manage many more projects than we could have imagined before, being those of a greater magnitude. Today, GWS has around 35 workers distributed between the office, factory and construction sites. Of these workers, around 13 workers are subcontractors, 3 apprentices and, being a company of aboriginal origin, we are proud to have several people of this ethnic group who contribute to the growth and development of our company.

   It has been a long road to where we are today, GWS has positioned itself as the aboriginal company that contributes the most to the development and growth in Sydney. Having been part of this success story from the very early beginnings and being actively involved in every single process, makes me feel every success that the company has, as my own!

   2. Emotional toll of uncertainty

   The rewarding experience I have had at GWS Engineering & Construction, contrasts with my personal situation due to a lack of resolution on my immigration process during the past three years and eight months.

   The uncertainty of what lies ahead for me in Australia has prevented me from planning a stable life in the country that I love and respect, and this has in turn affected my psychology and judgement to take critical decisions in my life, such getting married, planning for a family with my partner or buying a house. As I am sure you can understand, these are rather important factors that have triggered constant stress as well as feelings of sadness and doubt of my self-worth, which I had never experienced prior.

   Due to the pandemic the adverse situation we all have been facing, emotionally and physically, the demand of skill at work to meet the project requirements with limited staff and working hours, and need of employment to meet the ends meet was before me, therefore I worked full time. My employer was not aware about my visa conditions nor I took appropriate steps to inform the department of my conditions, for which I apologise. [emphasis added by Tribunal]

   3. Along with the problem highlighted above, the fact of having constant uncertainty about my future has deprived me from being able to access financial services such a home or car loan, or access to any government support or unemployment benefits and even not being able to meet my family due to my immigration status made my situation worst added to the stress. This eventually impacted my concentration in studies and mental health. Under these circumstances I opted to work extra to survive during the most difficulty times and continue my studies for which I am working hard day and night.

   During my almost 5 years in Australia, I have met people who have given me their friendship and affection. Also, I have known love and despite the uncertainty, I have created a group of friends with whom I have created so many strong ties of friendship that today, I cannot conceive of my life anywhere other than Australia

   Finally, I would request the member and address the matter considering the uncertainties we all have been facing from the past two years.

   Your sincerely,

   Andres Felipe Correa Doria’[1]

   [1] Prepared and transcribed as submitted by the applicant

10. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the first named applicant meets the requirements of cl 457.223(4)(a).

    Requirement for an approved nomination

13. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

14. The nominating employer, GWS Engineering Construction Pty Ltd applied to the Department for approval of a nomination in relation to the position of Technical Salesperson under the occupation of Technical Sales Representative nec (ANZSCO 225499). That nomination was refused by the Department on 27 November 2018 and consequently the applicant’s visa application was refused.

15. GWS Engineering Construction Pty Ltd applied to the Tribunal for review of the decision not to approve the nomination (AAT Case No.1836774). On 30 November 2021, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination. Therefore, the applicant satisfies clause 457.223(4)(a) of Schedule 2 to the regulations.

16. 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.

    DECISION

17. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

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

    Karen McNamara
    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.