Duval (Migration)

[2018] AATA 5125

Duval (Migration) [2018] AATA 5125 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jean Paul Bryan Duval
Mrs Franceska Labour Duval
Miss Ella Makayla Duval

CASE NUMBER:  1700585

DIBP REFERENCE(S):  BCC2016/1828431

MEMBER:Kira Raif

DATE:20 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 887 visa:

·cl.887.213 of Schedule 2 to the Regulations

Statement made on 20 December 2018 at 12:00pm

CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 887 – worked full-time in a specified regional area for a total of at least one year – evidence provided – worked as subcontractor on full time basis in regional area for required timeframe – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 887.111, 887.212, 887.213

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 December 2016 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of Mauritius. The first named applicant (‘the applicant’) was born in October 1985. He applied for the visa on 24 May 2016. The application includes his partner and child. The delegate refused to grant the visas because the applicant did not satisfy cl.887.213 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had worked full-time in a specified regional area for a total of at least one year. The applicants seek review of the delegate’s decision.

3. On 12 November 2018 the Tribunal wrote to the applicants inviting them to appear before the Tribunal on 20 December 2018. On 10 December 2018 the Tribunal received from the applicant advice that he had appointed a migration agent and a request for the hearing to be postponed until after the applicant had been granted access to documents. The Tribunal has considered the request but decided not to postpone the hearing. The Tribunal is mindful that the applicant has been given more than one month notice of the hearing, in excess of the period prescribed by the legislation. The application for review was lodged in January 2017. The applicant was assisted by a different migration agent during the review and could have received advice in that period about what was required. The applicant appointed a new migration agent ten days before the hearing, close to two years after lodging his application with the Tribunal and four weeks after receiving the invitation to the hearing. The applicant has not satisfied the Tribunal that anything prevented him from appointing a new migration agent earlier or that he was unable, for whatever reason, to appoint a new agent earlier. In such circumstances, and having regard to the fact that the applicant has been given a prescribed period of notice for the hearing, the Tribunal has decided not to postpone the hearing.

4. The applicants appeared before the Tribunal on 20 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Damien Smith. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

6. Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl.887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

   Work in a regional area

7. There is no evidence, and the applicants do not claim, that the secondary applicants meet the primary criteria for visa grant.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Class VC temporary visa on 26 September 2013. The Tribunal finds that the applicant was a holder of one or more of the visas mentioned in cl. 887.212 from September 2013. His application for the Class VB visa was made on 24 May 2016. The Tribunal must be satisfied that the applicant had worked full-time in a specified regional area for at least one year in the period between September 2013 and May 2016.

9. The applicant stated in his application that he had been working for Prime Group from 2008 until the date he made the present application. In support of his claimed employment, the applicant provided Notices of Assessment for the years 2013, 2014 and 2015, as well as Bills by Supplier report. The applicant’s and his partner’s bank statement for January to March 2014 shows some deposits from Axiom Facilities and Skyline Facilities.

10. In response to the delegate’s request for further evidence, the applicant submitted additional evidence, which included a reference letter from Duval Pro Cleaning, signed by his spouse. On the basis of the presented evidence, the delegate was not satisfied the applicant had worked on a full-time basis for at least one year.

11. Shortly before the hearing, the applicant provided to the Tribunal additional evidence relating to his employment. The applicant presented a statement from Mr Smith, the general manager of Prime Group, which states that Duvall Pro Cleaning was a sub-contracting firm to Prime Group and carried out work on a number of contracts on a daily basis, exceeding 100 hours each week. Mr Smith states that the applicant’s contribution as a sub-contractor would have been a minimum of 38 hours a week.  The applicant subsequently provided to the Tribunal a number of invoices and bank statements.

12. In his written submission to the Tribunal of 19 December 2018 the applicant states that Duval Pro Cleaning was a sub-contractor to Prime Group. Duval is a partnership between the applicant and his spouse, with each having their own ABN. The applicant and his partner would invoice Duval Pro Cleaning which would then invoice Prime Group through Skyline facility, which is a payroll company for Prime Group. The invoices and payments were made by Skyline Facility on behalf of Prime Group.

13. In oral evidence the applicant told the Tribunal that his previous lawyer did not tell him what evidence was required and that is the reason he submitted limited evidence of employment with his application. The applicant told the Tribunal that between September 2013 and May 2016 he was working as a subcontractor. He had a partnership with his wife and they carried out work for Prime Group and a number of other companies which the applicant identified. Following the hearing, the applicant presented to the Tribunal a number of invoices from these companies for the services he provided. The applicant said that he was paid by Skyline Facility which was part of the Prime Group and he found other jobs by distributing flyers.

14. The applicant states that apart from himself and his wife, they had 6 to 7 employees who were subcontractors.

15. The applicant’s bank statements show payments from Axiom Facilities. The applicant said that Axiom Facilities previously arranged the payments but were later taken over by Skyline Facilities. He said that depending on the type of cleaning, he was paid either by Axiom or Skyline. The applicant said that there were large contracts and he had to keep track of who was working on each site for liability purposes. Because of that, the general manager of the companies where the cleaning was done would know who was doing each job. The applicant noted that his last tax summary shows income in excess of $55,000 a year. The applicant said that cleaners are paid around $20 an hour, so his income shows that he was working on a full-time basis.

16. The Tribunal is satisfied that the applicant has been operating a partnership with his spouse and had been working as a subcontractor on a number of cleaning jobs. Evidence of the applicant’s ABN registration, bank statements showing regular payments from Axiom Facilities and Skyline Facilities, tax assessment notices and a number of invoices support that finding.

17. The Tribunal must also be satisfied that the applicant worked on a full-time basis.

18. As noted above, Mr Smith, who is the general manager of Prime Group, provided a written statement to the Tribunal confirming the applicant’s employment on a full-time basis. Mr Smith’s oral evidence to the Tribunal is that the applicant’s partnership is one of the major subcontractors doing commercial cleaning. The contracts exceeded 100 hours a week and the applicant was actively involved with a number of sites. Mr Smith stated that there were three sites where the applicant personally was doing the cleaning jobs and there are other sites where there were other subcontractors. Both the applicant and Mr Smith explained that records would have been kept at the time the work was carried out to identify the person doing the job. Mr Smith said the three sites where the applicant was working would require at least 70 hours and the applicant was also involved with other sites in addition to the three. These jobs cover the period from 2011 to 2016.

19. The Tribunal has found the applicant’s evidence to be credible and the Tribunal also accepts Mr Smith’s evidence. Having regard to that evidence, in addition to the written materials, the Tribunal is satisfied that between September 2013 and May 2016 when the present application was made, the applicant worked as a subcontractor on a number of sites and that such work exceeded 38 hours a week. The Tribunal is satisfied that the applicant had worked on a full-time basis for a total of at least 1 year as a holder of the subclass 487 visa.

20. The applicant provided with his application declarations stating that he had been residing in Cannons Creek, Victoria, 3977 in the relevant period. Various documents are addressed to the applicant at that address. The Tribunal is satisfied that it is a ‘specified regional area’. The Tribunal is satisfied that the applicant meets cl. 887.213. 

    Conclusion

21. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

22. The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 887 visa:

    ·cl.887.213 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member