Franca Araujo (Migration)

[2017] AATA 191

Franca Araujo (Migration) [2017] AATA 191 (8 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Waldemberguem Franca Araujo
Ms Andressa Alves Da Silva

CASE NUMBER:  1515182

DIBP REFERENCE(S):  BCC2015/2690481

MEMBER:Robert Titterton

DATE:8 February 2017

PLACE OF DECISION:  Sydney

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

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

Statement made on 08 February 2017 at 11:02am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Painter – Relevant experience

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 457.223

CASES

Joshi v MIMIA [2005] FMCA 1116

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 15 September 2015.

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 visas on 30 October 2015 on the basis that cl.457.223(4)(da) was not met. The delegate was not satisfied that the first named applicant (the applicant) had more than three years relevant experience as a painter.

5. The applicants appeared before the Tribunal on 8 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Vinko Seman, a director of the applicant’s employer Manly Warringah Painting Services Pty Ltd (MWPS).

6. The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).

Skills, qualification and employment background of the applicant

1. 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. In this case, the nominated occupation is Painting Trades Worker. In relation to this occupation, the Australian and New Zealand Standard Classification of Occupations (ANZSCO) states:

   UNIT GROUP 3322 PAINTING TRADES WORKERS

   PAINTING TRADES WORKERS apply paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures.

   Indicative Skill Level:
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
   In Australia:

   AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

   
   . . .
   
   At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

   Registration or licensing may be required.
   Tasks Include:

   oerecting scaffolding and ladders, and placing drop sheets to protect adjacent areas from paint splattering

   opreparing surfaces by removing old paint and wallpaper, fixing woodwork, filling holes and cracks, and smoothing and sealing surfaces

   oselecting and preparing paints to required colours by mixing portions of pigment, oil, and thinning and drying additives

   oapplying paints, varnishes and stains to surfaces using brushes, rollers and sprays

   ohanging wallpaper, matching patterns and trimming edges

   ocleaning equipment and work areas

   omay repair windows and replace glass in wooden and metal frames

   omay lay and repair wall and floor tiles

   Occupation:

   332211 Painting Trades Worker

   
   332211 PAINTING TRADES WORKER
   
   Applies paint, varnish, wallpaper and other finishes to protect, maintain and decorate surfaces of buildings and structures. Registration or licensing may be required.

2. At the time of the delegate’s decision, 30 October 2015, the delegate found that there was little evidence to substantiate that the applicant had more than 3 years of relevant experience. She noted that while the applicant stated that he was self-employed as a professional painter in the period 2010 to 2014, there was no corroborative evidence of this, such as business cards, tax returns or service orders. The delegate also noted that the references from clients were very vague, with no specific date as to when they were completed.

3. Prior to the hearing before the Tribunal, the applicant provided approximately 30 pages of materials. These materials comprised the following.

4. First, and most importantly, a copy of the applicant’s Certificate III in Painting and Decorating. The applicant completed this qualification on 10 August 2016. The Tribunal sighted the original of the certificate.

5. Secondly, a letter of MWPS dated 16 January 2017. The letter is signed by the company’s director Mr Vinko Seman. In summary, Mr Seman states that the applicant has been employed as a Painter and Decorator since July 2015. Mr Seman states that the applicant is a dedicated and responsible employee, and demonstrates competence in his role with MWPS.

6. Thirdly, a letter from Mr Adriano Almeida dated 7 July 2016. Mr Almeida owns a company called Constuçðes e Reformas. Mr Almeid states that the applicant worked for the company from 2010 to 2014 as a painter and his responsibilities included wallpaper application, patching application, and all kinds of internal and external painting. All these tasks were undertaken under Mr Almeida’s direct supervision.

7. Fourthly, five references from clients each of whom attest to work undertaken, and the quality of that work, by the applicant in 2012, 2013 (three references) and 2014.

8. The applicant gave oral evidence to the Tribunal. The applicant was able to give spontaneous and believable answers to the questions the Tribunal asked. The applicant was able to give a high degree of detail in his answers which adds verisimilitude to his claims. Accordingly, Tribunal found the applicant to be a reliable and credible witness and makes the following findings.

9. The applicant was born on 25 April 1990. He is 26 years old. He is married to the second named applicant. They have a one year old daughter.

10. The applicant has one sister who lives in Brazil. His mother, a single mother, died when the applicant was 16. The applicant completed High School in 2007, after which he completed a Bachelor Technology (majoring in computer networking) at the Faculdeade Sumare in San Paolo in 2010. After, graduation, he was not able to find work, and started working with his uncle, who was a painter. After working for his uncle for a short period, he then commenced working for himself, but would take on additional jobs from his uncle, and with Constuçðes e Reformas, a business owned by Mr Adriano Almeida. During the period 2010 to 2014 he worked as a painter, either for himself, or accepting jobs from his uncle or Constuçðes e Reformas.

11. The Tribunal asked the applicant for further detail about each of the five references referred to above. The applicant was able to answer the questions in a spontaneous manner, and the Tribunal considers that he had real knowledge of the jobs as he was able to provide a satisfactory level of detail about each, including for instance the names of the clients, the period when the job was undertaken, the extent of the work required and why the work needed to be done. The Tribunal has no reason not to accept this evidence.

12. The Tribunal also heard oral evidence from Mr Seman. Its main purpose in doing so was understand the extent to which the applicant received “on-the-job” training during his employment with MWPS. Mr Seman told the Tribunal, and the Tribunal accepts, that all its employees undergo on-the-job training, and that this is an ongoing process. The Tribunal accepts that MWPS has provided to the applicant throughout his employment. However, the Tribunal finds that the extent of this on-the-job training is limited to the 19 months of the applicant’s employment (being July 2015 to February 2017).

13. The Tribunal accepts Mr Semen’s written evidence and finds that the applicant’s skills include the following:

    ·erecting and maintaining trestle and plank systems

    ·hand painting and decorating materials

    ·painting and decorating tools and equipment

    ·preparing surfaces for painting

    ·erecting and dismantling restricted high scaffolding

    ·painting by brush and roller

    ·applying texture coat paint finishes by brush, roller and spray

    ·applying paint by spray

    ·matching specified paint colour

    ·applying decorative paint finishes

    ·removing graffiti and apply protective coatings

    ·applying protective paint coating systems

    ·applying advanced decorative paint finishes

Consideration

1. The critical issue is whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

2. The authorities state that there is no threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, although in determining this question, the Tribunal may be guided by the Australian Standard Classification of Occupations (ASCO) in relation to occupations nominated before 1 July 2010, or the ANZSCO for occupations nominated on or after 1 July 2010. However, caution must be used in applying the ASCO or ANZSCO and the Tribunal should not place absolute reliance on that tool. The determination of each application requires more than a narrow matching process between an applicant's tasks and an ASCO or ANZSCO occupational definition. In assessing this criterion, the regulations in this context do not require formal or full skills assessment, as is required for other skilled permanent visa subclasses, although one may be requested under cl.457.223(4)(e). In an earlier version of this clause, the Federal Magistrates Court in Joshi v MIMIA held that the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[1]  

   [1] Joshi v MIMIA [2005] FMCA 1116.

3. Given the evidence summarised above, the Tribunal finds that:

   ·the applicant has worked as a painter since 2010 to date; 

   ·the applicant has completed the Certificate III in Painting and Decorating in July 2016;

   ·the applicant has received approximately 19 months of on the job training from his present employer.

4. Therefore, the Tribunal finds that the applicant has at least three years of relevant experience which may substitute for formal qualifications required for the occupation Painting Trades Worker (ANZSCO 332211) and that the applicant has the skills, qualifications or employment background necessary to perform the tasks of the nominated occupation.

5. Accordingly, the Tribunal finds that the applicant does satisfy the requirements of cl.457.223(4)(da).

6. 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

1. 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.

R. C. Titterton

Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship

…

1. 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.

   …

2. 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.

   …

3. 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.