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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Franca Araujo (Migration)

Details

AGLC: Franca Araujo (Migration) [2017] AATA 191
Case: [2017] AATA 191
Decision Date: 8 February 2017

CaseChat Overview and Summary

The Federal Circuit Court of Australia heard a migration matter concerning Franca Araujo, who sought review of a decision by the Minister for Immigration and Border Protection to refuse her application for a Temporary Business Entry (Class UC) visa (subclass 457). The applicant had nominated an occupation as a painter.

The central legal issue before the Court was whether the applicant possessed the requisite skills and experience for the nominated occupation of painter, as defined by the relevant legislative instrument and the Department of Immigration and Border Protection's operational guidelines. Specifically, the Court had to determine if the applicant's claimed work experience met the criteria for skilled employment in the nominated occupation.

In reaching its decision, the Court considered the evidence presented regarding Ms Araujo's employment history and qualifications. It applied the principles of statutory interpretation to the relevant provisions of the *Migration Regulations 1994* and the associated policy guidelines. The Court found that the applicant's submitted documentation did not sufficiently demonstrate that her past work experience equated to the level of skill and responsibility expected for a painter in the context of the subclass 457 visa requirements. The Court ultimately affirmed the Minister's decision.

Orders