Ferrand (Migration)

[2024] AATA 3469

Ferrand (Migration) [2024] AATA 3469 (16 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quentin Ferrand

CASE NUMBER:  2203378

HOME AFFAIRS REFERENCE(S):          BCC2021/1435400

MEMBER:Jade Murphy

DATE:16 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.221 of Schedule 2 to the Regulations.

Statement made on16 August 2024 at 9:24am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – landscape gardener – work in nominated or related occupation for two years – applicant provided documentation verifying employment to representative, who did not provide it to department – hearing adjourned to allow applicant to provide documentation to tribunal – documentation provided but no appearance at second hearing – own business and significant volume of work completed – other employment not assessed – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 363(1)(b)

Migration Regulations 1994 (Cth), Schedule 2, cl 482.221

CASES

Huo v MIMA [2002] FCA 617

Kaur v MIBP [2014] FCA 915

Manna v MIAC [2012] FMCA 28

MIAC v Li [2013] HCA 18

MIBP [2014] FCAFC 1

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 Home Affairs on 18 February 2022 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 July 2021. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Landscape Gardener (ANZSCO 362213).

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had demonstrated that he had worked in the nominated occupation or a related field for at least two years.

4. The applicant appeared before the Tribunal on 6 August 2024 to give evidence and present arguments. To allow the applicant further time to provide information to the Tribunal, the hearing was adjourned part-heard, and a further hearing was scheduled for 16 August 2024. Two hearing reminders for the further hearing were sent via SMS to the applicant’s mobile. The first on 9 August 2024 and the second on 15 August 2024.

5. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. No satisfactory reason for the non-appearance has been given.

6. The Tribunal has considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

7. In doing so, the Tribunal has considered the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

   [1] [2002] FCA 617

   [2] [2012] FMCA 28

   [3] [2013] HCA 18 (8 May 2013)

   [4] [2014] FCAFC 1 (4 February 2014)

   [5] [2014] FCA 915 (28 August 2014)

8. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in cl.482.221 of the Migration Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

9. The Tribunal has had regard to the fact that the application was refused by the Department on 18 February 2022 because the delegate was not satisfied that the applicant had demonstrated that he had worked in the nominated position or a related field for at least two years.  The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for over two years of the reasons for the visa refusal. Further, the applicant has already made oral submissions at the first hearing on 6 August 2024 and been granted further time to provide a significant volume of additional documentary information following his discussion with the Tribunal.

10. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria.

11. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that cl 482.221 can be met.

12. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant has worked in the nominated occupation or a related field for at least two years.

    Requirement to have worked for at least two years

14. Clause 482.221 requires that the applicant has worked in the nominated occupation or a related field for at least two years.

    The primary decision record

15. As set out in the delegate’s decision record, the delegate was not satisfied, that the applicant met the requirements for the grant of a Subclass 482 visa, in particular that at the time of application he had worked in the nominated occupation or a related field for at least two years.

16. The delegate considered that there was insufficient evidence to demonstrate that the applicant met this requirement, and the applicant was asked to provide further information on two occasions. Both times, there was no response received from the applicant.

17. The delegate stated that they went on to consider the information that the applicant had provided on application including PTE results, statutory declarations, a resume, and his qualifications (Diploma).

18. The delegate noted that the applicant’s resume listed the following employment experience:

    ·Landscaper and Team Leader at APEAH between January 2013 and March 2013

    ·Entrepreneur at Ferrand Vert between April 2013 and April 2016

    ·Landscaper at 3 Raum Gartner between August 2017 and June 2019

    ·Landscaper and Gardener at Whole Yards Discretionary Trust T/A Whole Yard Service between July 2020 and August 2020

    ·Landscaper and Gardener at Mr B's Landscaping and Garden Care between March 2021 and current (at the date of application)

19. The delegate did not consider these claims themselves demonstrated the applicant had undertaken this previous employment in the absence of any independently verifiable evidence such as pay slips, bank statements or tax returns.

20. As a result, the delegate was not satisfied that the applicant had sufficiently demonstrated that he had undertaken the work experience claimed and as a result found that the applicant did not meet the two-year work experience requirement.

    The applicant’s evidence

21. At the first hearing on 6 August 2024, the Tribunal confirmed that it had not received any additional information on review, that was not before the delegate when the application was refused. The applicant told the Tribunal that he did not know he had to provide documents to the Tribunal. The Tribunal told the applicant he needed to provide all information that he wanted the Tribunal to rely on in making its decision. In particular, evidence that he had two years of work experience in the nominated occupation or a related field, and that this could include documents such as payslips, taxation documents, and client invoices.

22. The applicant told the Tribunal that at the time of application he had provided a significant volume of documents to his representative at the time, and they were never passed on to the Department, despite their requests. The applicant maintained that he has these documents readily available.

23. The Tribunal accepted the applicant’s submissions in this regard and adjourned the hearing part heard to allow the applicant 10 days to provide his documentary evidence. The Tribunal told the applicant it considered that he was required to demonstrate he met the two-year work experience requirement at the time of application on 19 July 2021.

24. The Tribunal notes that on 7 August 2024 the applicant provided to the Tribunal the following documents:

    ·Company Registration Certificate for Ferrand Vert, shows it was registered between 17 January 2014 and 24 March 2016

    ·Translated invoices for clients for work undertaken as Ferrand Vert, dated 31 January 2014, 17 February 2014, 12 March 2014, 26 April 2014, 18 May 2014, 10 June 2014, 13 August 2014, 2 October 2014, 25 November 2014

    ·Translated invoices for clients for work undertaken as Ferrand Vert dated 16 January 2015, 31 January 2015, 11 April 2015, 15 April 2015,

    ·Translated invoices for clients for work undertaken as Ferrand Vert dated 20 January 2016 and 1 February 2016, 4 February 2016

    ·Payslips for earnings paid by ‘Ronald Baker’ for the periods 8-14 March 2021 (YTD shows $678.26), 4-11 July 2022 (YTD shows $2,152.01), 22-30 May 2023 (YTD shows $57,221.56)

    ·Payslips for earnings paid by Interim Employment Agency for work at for the periods July 2012, 1 October 2012-31 October 2012, 1-30 November 2012, 1 June-30 June2013 and 1-31 October 2013

    ·Skills Assessment form Trades Recognition Australia application signed and completed by Elaine Baker on 30 May 2023

25. The Tribunal has considered the documentary evidence provided. Although the Tribunal did not have the opportunity to speak with the applicant at a further hearing, the Tribunal is satisfied on the strength of the documentary evidence that at the very least, the applicant had his own landscaping business between 17 January 2014 and 24 March 2016 and that he completed a significant volume of work in the nominated occupation for clients who had settled their invoices. Particularly persuasive to the Tribunal is the company registration certificate and the translated invoices for each client that spans a period of over two years.

26. Given these findings, the Tribunal has not considered it necessary to assess the claims of employment made with APEAH, 3 Raum Gartner, Whole Yard Service or Mr B’s Landscaping and Garden Care, although it notes that the payslips provided (in particular the statements of Year to Date earnings) demonstrate a strong basis on which these claims can also be accepted.

27. As a result, the Tribunal is satisfied that the applicant has demonstrated that he has worked in the nominated occupation or a related field for at least two years at the time of applying for this visa.

28. For these reasons, cl 482.221 is met.

29. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

30. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.221 of Schedule 2 to the Regulations.

    Jade Murphy
    Member