Hadi (Migration)

[2017] AATA 2345

Hadi (Migration) [2017] AATA 2345 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sampurno Hadi
Mrs Santi Novia

CASE NUMBER:  1614998

DIBP REFERENCE(S):  BCC2016/1663673

MEMBER:Catherine Carney-Orsborn

DATE:8 November 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)(e) of Schedule 2 to the Regulations.

Statement made on 08 November 2017 at 3:31pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills necessary to perform the occupation – Skills assessment from a properly qualified organisation

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 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 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 6 May 2016.

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 1 September 2016 on the basis that cl.457.223(4)(e) was not met because he was required to demonstrate he has the skills to perform the occupation in the manner specified by the Minister.

5. The applicants appeared before the Tribunal on 25 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

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

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

   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)

   Skills, qualification and employment background of the applicant

9. 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 Glazier.

10. Evidence provided included a USB memory stick and evidence from the applicant’s employer. The employer corroborated the applicant’s evidence that he had been employed as a glazier since April 2013.  He provided a copy of his contractor’s licence.

11. The Tribunal took evidence from the applicant at hearing.  He stated that he came to Australia as a dependent on his wife’s student visa in 2010.  He stated that he has been on various student visas since that time.  He is currently on a bridging visa.  He listed the courses he had done which were connected to his student visa.  The Tribunal pointed out that none of them appeared to be connected to Glass and Glazing.

12. He claims he first acquired the skills of a glazier in 2013. 

13. He claims he started working freelance jobs as the workshop was close to where he lives.  He states he enjoyed the work.  He agrees he only was allowed to work part-time as his visa had work restrictions.  He states that in holiday periods he worked full-time.

14. He said he received his certificate based on recognised prior learning.  He says he provided the provider with information and completed a self-assessment form. 

15. The Tribunal asked the applicant to describe his training.  He said he was mentored for three years and then had one year on his own.  He then stated that he took on the job as a glazier from April 2013.  He said he worked on his own.  The Tribunal queried whether it would be appropriate for him to not be supervised.  The Tribunal asked him to expand.  He stated that he had an interview and was then sent out on his own in April 2013. He responded that he now had a licence.

16. The applicant’s representative made submissions he stated that the written submissions were on point and referred the Tribunal to them.  The representative stressed that the applicant meets entry level skills as outlined by ANZSCO.

17. At the hearing the Tribunal pointed out it could be guided by ANZSCO however was not bound by it.

18. The Tribunal considered all the evidence provided including the written submissions.

19. The Tribunal sent an s359A letter to the applicant which pointed out that the organisation from which he claimed he was given a Certificate IV in Glass and Glazing was suspended by the Australian Skills Quality Authority in December 2016.  

20. The Tribunal required the applicant to provide a skills assessment from a properly qualified organisation.

21. After the hearing the applicant provided to the Tribunal a letter dated 31 October 2017 from Gimbal Construction which stated that the applicant had successfully completed a general skills assessment in the nominated occupation of Glazier. The applicant also provided a Certificate III in Glass and Glazing.  Gimbal Constructions is an Australian Construction Training Service which is a TRA approved RTO with the authority to provide skills assessment.

22. The Tribunal finds that the applicant has demonstrated he has the skills that are necessary to perform the occupation.  He had done so in the manner specified by the Minister.   

23. For these reasons the applicant satisfies the requirements of cl.457.223(4)(e).

24. 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

25. 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)(e) of Schedule 2 to the Regulations.

    Catherine Carney-Orsborn
    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.