MACHADO CELLA (Migration)

[2021] AATA 4611

MACHADO CELLA (Migration) [2021] AATA 4611 (17 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Marcelo Machado Cella
Ms Suiane Morales Correa

CASE NUMBER:  1829765

HOME AFFAIRS REFERENCE(S):          BCC2017/1020910

MEMBER:Katie Malyon

DATE:17 September 2021

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 17 September 2021 at 4:35 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Contract Administrator – necessary skills, qualifications and experience – Diploma in Project Management – 3 years’ work experience – nature of the tasks – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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 26 September 2018 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).  The applicants applied for the visa on 15 March 2017. 

2. At the time the 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 primary visa applicant to satisfy one of the 2 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 stream in cl.457.223(2), the labour agreement stream.

3. The delegate refused to grant the visas on 26 September 2018 on the basis that cl 457.223(4)(da) of Schedule 2 to the Regulations was not met because, although the primary applicant, Brazilian national Mr Marcelo Machado Cella, had been successfully nominated by his employer and prospective sponsor All Safe Traffic Pty Ltd (the Company) in the occupation of Contract Administrator ANZSCO 511111, the delegate was not satisfied that Mr Cella had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.  A copy of the delegate’s decision was provided to the Tribunal.

4. On 10 August 2021, the applicants were invited to attend a MS Teams hearing on 2 September 2021.  The hearing invitation requested the applicants provide evidence to support the review application.   The representative forwarded further copies of documentation lodged with the Department and a submission together with, relevantly:

   1)a work reference from the Company’s director Maz Aili dated 24 August 2021;

   2)PAYG Payment Summaries for years ended 30 June 2017 – 30 June 2021;

   3)Hostplus Superannuation Statements from 1 January 2018 – 31 December 2020;

   4)Notice of Assessment issued by the ATO for years ended 30 June 2016 – 30 June 2020;

   5)multiple emails from Mr Cella to the Company’s customers in the period 28 September 2017 – 1 July 2021 as evidence of Mr Cella’s work as the Company’s Contract Administrator;

   6)copies of sample Company contracts with customers administered by Mr Cella as the Company’s Contract Administrator including the Lendlease Tyco contract dated 24 June 2019 and Ventia Pty Ltd contract dated 23 July 2021;

   7)the Organisation Chart of the Company;

   8)Mr Cella’s business card for his role as the Company’s Contracts Admin & Operations Manager; and,

   9)details of all the Company’s employees and sub-contractors.

   Hearing

5. Mr Cella appeared before the Tribunal on 2 September 2021 to give evidence and present arguments.  The applicants were represented in relation to the review by their registered migration agent, Mr Adam Khaze of Home Migration Services.

6. At the commencement of the hearing, the Tribunal acknowledged it had received notice in September 2020 that the secondary applicant, Ms Suiane Morales Correa, is no longer in a relationship with Mr Cella.  It observed that this was a matter for the Department.  The balance of the hearing was given over to discussion regarding the role of the Company’s directors in finding new customers, negotiating contracts with them and then Mr Cella’s role in administering all of the Company’s contracts. 

7. The signed reference letter from Company director Mr Aili dated 24 August 2021 lodged with the Tribunal prior to the hearing confirms that Mr Cella was initially hired as a Traffic Controller/Equipment Hire Administrator, a role that he undertook from May 2016 until November 2017 on a part-time basis.  However, in December 2017 he was promoted to the role of Contracts Administrator / Operations Manager due to business needs and has been working full-time in that role since then.  Mr Aili sets out at some length the activities undertaken by Mr Cella in his current role.

8. As explained by Mr Cella, the Company specialises in providing staff and contractors to perform tasks associated with traffic management for road construction or events.  This involves them controlling traffic, pedestrians and cyclists to protect maintenance and construction as well as members of the public.  Initially, the Company also hired equipment to undertake such work but it no longer does that.  Mr Cella confirmed the nature of his role with the Company since December 2017 as set out in Mr Aili’s letter referred to above.    

9. After the hearing, the representative provided a copy of Mr Cella’s Diploma of Project Management issued by Sydney Academy on 7 September 2021. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether, at the time of this decision, Mr Cella meets the requirements of cl.457.223(4)(da) of Schedule 2 to the Regulations.

    Skills, qualification and employment background of the applicant

12. 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. As noted above, the nominated occupation is Contract Administrator ANZSCO 511111.

13. As noted above, the delegate refused to grant the visa on the basis that Mr Cella does not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation Contract Administrator 511111.  The delegate expressly considered the reference letter from Mr Cella’s former employer in Brazil, Vencedor Ltd, where he worked as an Equipment Sales & Hiring Consultant from March 2010 to July 2013 as well as a reference letter from the Company dated 15 May 2017 confirming Mr Cella’s employment for 12 months from May 2016 to May 2017 in the capacity of Traffic Controller/Equipment Hire Administrator on a part-time basis. 

14. The Company was approved as a standard business sponsor on 18 April 2017 for a period of 5 years expiring on 18 April 2022.  Initially, the Company nominated Mr Cella for the occupation of Equipment Hire Manager ANZSCO 149915.  However, the Company withdrew that nomination on 1 August 2017 following the submission of a new nomination on 31 July 2017 for the occupation of Contract Administrator ANZSCO 511111.  This nomination was approved on 1 November 2017 and, by virtue of the savings provisions set out in the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, remains current.

15. As noted in the delegate’s decision, the occupation’s indicative qualifications and tasks are set out in the Australia and New Zealand Standard Classification of Occupations (ANZSCO).   While ANZSCO is not binding on the Tribunal, it has nonetheless referred to ANZSCO to inform its consideration of whether Mr Cella has the skills, qualifications and employment background necessary to perform the nominated occupation. 

16. ANZSCO states that Contract Administrators prepare, interpret, maintain, review and negotiate variations to contracts on behalf of an organisation.  The indicative skill level for the occupation of Contract Administrator ANZSCO 511111 in Australia is:

    ·AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    ·At least 3 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.

17. Further, ANZSCO states that a Contract Administrator prepares, interprets, maintains, reviews and negotiates variations to contracts on behalf of an organisation.  The tasks listed in ANZSCO include:

    ·developing, reviewing and negotiating variations to contracts, programs, projects and services

    ·responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected

    ·managing paperwork associated with contracts, programs, projects and services provided

    ·working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met

    ·advising senior management on matters requiring attention and implementing their decisions

    ·overseeing work by contractors and reporting on variations to work orders

    ·preparing and reviewing submissions and reports concerning the organisation's activities

    ·collecting and analysing data associated with projects undertaken, and reporting on project outcomes

    ·reviewing and arranging new office accommodation.

18. Following the hearing, Mr Cella provided evidence of a Diploma in Project Management issued by the Sydney Academy on 7 September 2021.  The Sydney Academy is included in the Australian Government’s national Vocational Education and Training register.[1]  Mr Cella did not undertake a course to be awarded the Diploma: rather, it recognises his prior learning experience.

    [1] >

    Mr Cella’s qualification is a Diploma in Project Management: it is not a Diploma in Contract Administration.  In the circumstances, the Tribunal has considered whether the nature of Mr Cella’s duties undertaken over the past 3½ years with the Company are more of a managerial rather than an administrative role such that it would need to consider whether the tasks cross more than one ANZSCO occupation and, if so, the nature of the predominate tasks undertaken. 

19. Having regard to the evidence provided by Mr Cella during the hearing as well as the signed reference letter from Company director Mr Aili, the email communications between Mr Cella to the Company’s customers in the period 28 September 2017 to 1 July 2021, and the contracts with Lendlease Tyco and Ventia Pty Ltd signed ang negotiated by Mr Aili as Company Director and administered by Mr Cella, the Tribunal is satisfied that, Mr Cella has predominantly undertaken the tasks of the occupation of Contract Administrator and, therefore, he has at least 3 years’ experience in the occupation of Contract Administrator. 

20. Based on the evidence provided, Mr Cella clearly has more than 3 years of work experience as a Contract Administrator which is directly relevant to the nominated position.  Further, he has a Diploma in Project Management.

21. For these reasons, the requirements of cl.457.233(4)(da) of the Regulations are met. Given these findings, 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

22. 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.

    Katie Malyon

    
    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.