de Oliveira Branquinho (Migration)

[2020] AATA 3559

de Oliveira Branquinho (Migration) [2020] AATA 3559 (9 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Fernanda de Oliveira Branquinho

CASE NUMBER:  1831112

DIBP REFERENCE(S):  BCC2017/3610453

MEMBER:Penelope Hunter

DATE:9 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 09 July 2020 at 5:15pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– whether the position was genuine – position associated with the nominated occupation of photographer is not genuine – applicant has not worked for her nominating employer – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 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. The visa applicant applied for the visa on 3 October 2017.

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 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 10 October 2018 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 nominated occupation of Photographer (ANZSCO 211311).

5. The applicant appeared before the Tribunal on 21 May 2020 by telephone at a hearing to give evidence and present arguments. 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. The hearing was conducted with the assistance of an interpreter in the English and Portuguese languages.

6. The applicant was represented in relation to the review by her registered migration agent who also participated in the hearing.

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

   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) of Schedule 2 to the Regulations. This clause contains several provisions as set out in full in the schedule attached to this decision.

9. The applicant is a citizen of Brazil and applied for the visa on the basis of a nominated occupation of Photographer (ANZSCO 211311). The 457 visa application was made on the basis of an approved nomination by her employer, Easy Payments Pty Ltd.

10. As set out in the decision record submitted to the Tribunal, delegate refused the visa because they found that the applicant did not have a suitable qualification relevant to the nominated occupation and the employment references submitted did not satisfy the delegate that the applicant had at least 5 years relevant work experience.

11. Although the delegate affirmed the decision on the basis that the applicant did not satisfy cl. 457.223(4)(da), the determinative issue that has arisen on review is whether the applicant satisfies cl.457.223(4)(d) and this is that the Minister, or the Tribunal upon review standing the place of 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.

12. The applicant has submitted to the Tribunal the following material for consideration:

    • Agent’s submission
    • Invoices to Easy Payments from the applicant for 18 September 2017 to 19 January 2019
    • Notice of Assessment for year ended 30 June 2018, taxable income $26,067
    • Tax return for individuals for year ended 30 June 2014
    • Tax return estimate for year ended 30 June 2014
    • Applicant’s bank statements from 28 February 2013 to 26 September 2015, 4 December 2015 to 19 February 2016, 31 December 2016 to 30 December 2017, 12 April 2018 to 30 December 2018.
    • Work reference, undated, from Zelda Baravykas, Easy Payments Pty Ltd, confirming the applicant’s employment as a Photographic Studio Manager from February 2016 to ‘current’
    • Work reference, undated, from Zelda Baravykas, Expression Sessions, confirming the applicant’s employment as a Photographic Studio Manager from August 2013 to January 2016.
    • Payslip, Gabrito Moveis Comercio e Representacoes Ltd for 1 January 2012 to 31 January 2012
    • Work reference from Lucia Alves Martins, General Manager of Giroflex, untranslated.
    • Untranslated documents from Giroflex ( contract and tax documents)
    • IELTS test results.
    • Bachelor in Engineering and academic transcripts
    • Certificate IV in Marketing, awarded on 20 September 2015.
    • Extract of Course completion as part of Diploma of Management
    • Curriculum Vitae.

13. The submission from the applicant’s representative acknowledges that upon review the Departmental decision the Tribunal was to have a fresh look at the material before it. The applicant and her representative were informed from the beginning of the hearing that it had concerns as to whether the applicant was working in the nominated position. The Curriculum Vitae submitted by the applicant only recorded that she worked in the position of Photographic Studio Manager for her nominating employer until December 2018. The applicant also had not submitted evidence of the payment of wages beyond this period. Upon questioning at the hearing, the applicant told the Tribunal that she had not worked for her nominating employer since December 2018, after the delegate’s decision. The applicant was questioned as to what work she had been doing while awaiting review and she told the Tribunal that she had travelled to Tasmania for a period and she was currently working for a family in Sydney as a nanny. The Tribunal raised with the applicant its concerns, because she had not been working in the nominated position for some time, of whether her intention to perform the occupation was genuine. The applicant argued in reply that there was not a visa requirement while she was awaiting review for her to continue to work in the position. The Tribunal accepts that this was not a condition of the bridging visa granted to the applicant while awaiting review. However, it is a relevant consideration as to the applicant’s intention to work in the position and as to whether the position is genuine.

14. When the Tribunal questioned the applicant as to whether the position associated with the nominated occupation was genuine, she told the Tribunal that the agreement that she had with her employer was that when a date was set for a Tribunal hearing then she would go back and work for Easy Payments Pty Ltd. The Tribunal drew the attention of the applicant to the fact that she had not provided any evidence from Easy Payments Pty Ltd to support this claim, and she was still not in fact working for them. In response to further questions from the Tribunal the applicant said that she had spoken with her employer a month or so before the hearing and because of the COVID-19 pandemic she claimed that there was not a concrete answer. The Tribunal informed the applicant that it expected that if her position was genuine, she would be able to demonstrate that she would be employed by her nominator in the occupation of photographer. The applicant was given leave to file before the Tribunal within 14 days, further evidence from her employer to demonstrate that she would work in the position and that it was genuine, as the Tribunal was concerned that she did not satisfy cl 457.223(d) of Schedule 2.

15. Also relevant to the whether the position was genuine the Tribunal considered whether the applicant’s past employment with the nominated employer was real or true. The applicant had submitted a series of invoices for payment issued under her individual ABN for the payment of a contractor fee by Easy Payments Pty Ltd, the most recent invoice covers the period 15 January 2018 to 19 January 2018. The Tribunal asked the applicant whether she was an employee of Easy Payments Pty Ltd or an independent contractor. The applicant told the Tribunal that she had worked under her own ABN as an independent contractor until January 2018. The Tribunal questioned the applicant as to why she had become an employee from January 2018, she claimed that she had wanted to work full-time and her employer was planning to extend photography services from shopping centres to day-care centres and she would assist with this expansion. Again, the Tribunal questioned why, if there was a genuine full-time position for the applicant in this role, she would cease working for her employer in December 2018. The applicant was unable to satisfactorily explain this other than it was not a requirement of her bridging visa. The Tribunal further noted that the deposits in the applicant’s bank accounts did not generally reflect that they were for the payment of wages, rather regular deposits, for example those dated 6 September 2018, 23 August 2018, 4 October 2018, 1 November 2018 and 14 December 2018 refer to payment of an invoice. A deposit of 25 July 2018 is accompanied by the description of consultant invoice, other deposit dated 31 May 2018 and 14 June 2018 are customer service fees, a payment on 19 April 2020 is described as EP Consulting Fees. These payment anomalies suggest to the Tribunal that the engagement of the applicant as an independent contractor may have persisted and the full-time position as an employee in the nominator’s business is not genuine.

16. The post-hearing submission of the applicant did little to alleviate the Tribunal’s concern. On 4 June 2020, the applicant submitted a letter of reference dated 3 June 2020, on letterhead of Easy Payments, signed by Zelda Baravykas. The letter set out an assertion the applicant’s application was genuine and legitimate application. It also provided details of the former employment of the applicant and a position description for the role of Studio Manager. Finally, Mr Baravykas’ letter concludes with the following comments:

    Presently and very unfortunately, due to the current economic climate that most small business are being impacted by we are now unable to offer a full-time role anymore due to financial difficulties.

17. The Tribunal is not satisfied that it can attribute much weight to the assertion of Ms Baravykas that the applicant had a genuine and legitimate application. It is noted that Ms Baravykas sets out that the applicant was employed part-time for periods between 2013 and 2017 when the applicant told the Tribunal that she was an independent contractor and has submitted invoices to support this. The applicant has herself submitted an invoice for a contractor fee in January 2018, when Ms Baravykas has set out that she was a full-time employee. Although the applicant’s tasks as described in the letter included several tasks consistent with the ANZSCO description for a Photographer (211311), such as consulting with clients to determine the objectives of photographic assignments, operating equipment to take shots of the employer’s client base, the set up a photographic studio, on the evidence the applicant has not been engaging in any of these tasks since December 2018. She has not since that time been discharging any of the functions of the nominated occupation.  Finally, due to the concluding remarks of Ms Baravykas in the letter, the Tribunal is unable find that the applicant will be employed in the nominated position at all.

18. The Tribunal is not satisfied that at the time of decision, the position associated with the nominated occupation of photographer is genuine, and consequently that the applicant’s intention to perform the nominated occupation is genuine. The Tribunal makes this finding on the basis of the applicant’s evidence that she has not worked for her nominating employer, discharged the functions or performed the tasks of the nominated occupation since December 2018, and the letter from the nominated employer that, as at # June 2020, they are not able to offer her a full-time role. As well as the concerns expressed above as to whether the applicant was actually engaged by her employer as an employee as opposed to an independent contractor.

19. For these reasons the applicant does not satisfy cl. 457.223(4)(d) and clause 457.223(4) is not met as a whole.

20. 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

21. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Penelope Hunter
    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.