De Albuquerque Packer (Migration)

[2020] AATA 163

De Albuquerque Packer (Migration) [2020] AATA 163 (24 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jose Eduardo De Albuquerque Packer

CASE NUMBER:  1719999

DIBP REFERENCE(S):  BCC2016/3459716

MEMBER:Jennifer Cripps Watts

DATE:24 January 2020

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)(da) of Schedule 2 to the Regulations

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

Statement made on 24 January 2020 at 1:22pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard Business Sponsorship scheme – skills, qualifications and employment background necessary to perform tasks of nominated occupation – applicant’s study and work compared with ANZSCO classification – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. 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 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.

3. The delegate refused to grant the visa on 24 August 2017 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had the skills, qualifications and employment background considered necessary to perform the tasks of the nominated occupation.

4. The applicant appeared before the Tribunal on 23 January 2020 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da) and (e), specifically, whether demonstrates that he possesses the skills, qualifications and employment back to perform the tasks of the nominated occupation of  

   Skills, qualification and employment background of the applicant

7. 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.  

8. In this case the nominated occupation is Building Associate.  The 457 visa application was made on the basis of an approved nomination by Mustang Building Services Pty Ltd atf The E & M Family Trust (the sponsor).  Departmental records indicate they are an approved standard business sponsor (from 22 August 2017 to 22 August 2022) and that the nomination relating to the applicant’s Subclass 457 visa application was approved on 22 August 2017.  The applicant applied for the visa on 18 October 2016, the visa was refused on 24 August 2017 and he applied for merits review on 30 August 2017.

9. When considering whether the applicant meets the requirements of cl.457.223(4)(da), the Australian and New Zealand Standard Classification of Occupations (ANZSCO) has be relied as a guide to inform the Tribunal what the usual duties of a Building Associate (ANZSCO are and what qualifications or work experience are needed to work in the nominated occupation.

10. For the occupation of Building Associate, the indicative skill level in the ANZSCO is Skill level 2; an Australian Qualifications Framework Associate Degree, Advanced Diploma or Diploma.  In the alternative, at least three years of relevant experience may substitute for the formal qualifications. 

11. The applicant has provided additional evidence to the Tribunal, including:

    a.His CV including details of his current position with the sponsor as a Site Supervisor, from 2014 (current);

    b.Diploma of Management from City Institute, certifying that (the applicant) has fulfilled all requirements, issued on 19 February 2016;

    c.The applicants PAYG statements for financial years ending 2018 and 2019;

    d.A reference from Mr Ernie Velonas (the sponsor), Director, date 18 December 2019, confirming that the applicant was hired in February 2014 and including a description of the activities the applicant performs in the position

12. The applicant gave or evidence that he still works for the sponsor as a Site Supervisor and that his salary has increased significantly since he applied for the visa.  The Tribunal is satisfied that the duties the applicant performs, working for the sponsor, are commensurate with those in the ANZSCO for a Building Associate.

13. The Tribunal accepts, on the evidence, that the applicant has worked for the sponsor performing tasks and carrying out duties commensurate with those described for a Building Associate in the ANZSCO for nearly six years, which is far in excess of the three years indicated in the ANZSCO.  The Tribunal acknowledges that the applicant has a Diploma of Management, which is a level 2 qualification.  However, as he meets the work experience requirement, it is not necessary to make findings about the qualification. 

14. The Tribunal is satisfied, on the evidence and with reference to the ANZSCO and relevant documentary and oral evidence, that the applicant possesses, and has demonstrated he has, the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

15. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and (e).

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)(da) of Schedule 2 to the Regulations

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

    Jennifer Cripps Watts

    
    

    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.