Mc Cann (Migration)

[2020] AATA 523

Mc Cann (Migration) [2020] AATA 523 (26 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dwane Mc Cann
Ms Sarah Louise Mc Caffrey

CASE NUMBER:  1722619

DIBP REFERENCE(S):  BCC2016/3596591

MEMBER:Karen Synon

DATE:26 February 2020

PLACE OF DECISION:  Melbourne

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 26 February 2020 at 12:20pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Solid Plasterer – necessary skills, qualifications and experience – relevant employment experiences – reference letters – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 28 October 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 11 September 2017 on the basis that cl.457.223(4)(da) was not met because the first named applicant (‘the applicant’) had not demonstrated he had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

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

6. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant's favour on the basis of the material before it.  It was therefore unnecessary to invite the applicants to appear before the Tribunal to give evidence in relation to the decision under review.

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 applicant meets the requirements of cl.457.223(4)(da).

   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.

10. In this case the nominated occupation is Solid Plasterer.

11. The department’s policy set out in PAM3 notes the following in relation to ‘Qualifications and Experience’:

    110  Assessment against the nominated occupation in ANZSCO

    …110.2      For nominations made on or after 1 July 2010

    Under regulation 2.72(10)(e)(iv), the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified:

    ·for the occupation in the relevant ANZSCO code or

    ·if there is no ANZSCO code for the nominated occupation, the occupation in the legislative instrument for the purpose of regulation 2.72(10)(aa).

12. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Solid Plasterer’.  However the Tribunal has referred to ANZSCO to inform its consideration of whether the applicant has the skills necessary to perform the nominated occupation.

13. In considering the ANZSCO definition and tasks for the occupation of ‘Solid Plasterer’ (Code 333212) which is part of the Unit Group 3332 ‘Plasterers’, it records the indicative skill level in Australia as:

    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.

14. The tasks of the relevant Major Group 3332 ‘Plasters’  are listed in ANZSCO as including:

    ·determining plasterboard layout, and installing insulation and vapour barriers;

    ·measuring, marking and cutting plasterboard, lifting and positioning panels, and securing them to walls, ceilings and battens;

    ·preparing corner beads and securing them in position;

    ·fixing pre-cast cornices, panel mouldings, ceiling centres and other plaster fittings;

    ·covering joins and nail holes with wet plaster and sealing compounds, and smoothing them using wet brushes and sand paper;

    ·mixing and applying coats of plaster, cement and render to structures using trowels, and levelling and smoothing coats to uniform thickness;

    ·plumbing and straightening corners, angles and wall and ceiling surfaces;

    ·creating decorative textures in finishing coats; and

    ·applying and finishing acoustic, insulating and fireproofing materials bonded with plaster, plastic cement and similar materials

15. In reaching a level of satisfaction as to the applicant’s relevant qualifications and experience the Tribunal accepts that the determination of each application requires more than a narrow matching process between the applicant's tasks and the ANZSCO occupational definition.  In an earlier version of this clause, the Court in Joshi v MIMIA held 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 (McInnis FM, 12 August 2005).

16. The delegate refused the visa because the employment references the applicant provided in relation to both his overseas and local employment experience were unable to be satisfactorily verified and relied upon.

17. On 10 February 2020, in accordance with s.359(2) the Tribunal invited the applicant to provide additional information concerning his qualifications and/or his employment experience indicating he possesses the skills necessary to perform the nominated occupation of Solid Plasterer.

18. In response on 24 February 2020 the applicant provided group certificates for the financial years ending 30 June 2017, 30 June 2018 and 30 June 2019 all of which list his employer as the Carlton Plasterer Company Pty Ltd.  The applicant also provided a signed letter from the director of his employer, Mr Bryan McNeil, who confirmed that the applicant has been employed by the Carlton Plasterer Company since 31 October 2016 and is totally competent in all aspects of solid plastering and “continues to impress with his ability to learn new applications and new finishes that are relevant to this trade”.  The applicant also provided numerous bank statements which record the deposit of regular wages and payments.

19. In addition, as recorded in the primary decision, the applicant was employed by SCE Construction Maintenance Pty Ltd from April to September 2016 a period of approximately six months.  The delegate noted that the letter provided to the Department from the Carlton Plasterer Company was unsigned and did not indicate whether the applicant had been employed directly or as a subcontractor.  The Tribunal considers it not relevant, for the purposes determining whether the applicant has the necessary three years employment experience that could substitute for formal qualification, whether the applicant has been directly employed or has worked as a subcontractor.

20. The evidence before the Tribunal is that the applicant has relevant employment as a Solid Plasterer in the building industry in Australia for a period in excess of 3 years.

21. It follows that, based on this employment experience, the Tribunal is satisfied the applicant has the indicative skill level cited in ANZSCO and thus has demonstrated the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of ‘Solid Plasterer’.

22. For these reasons, the applicant satisfies the requirements of cl.457.223(4)(da).

23. Given the finding 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

24. 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.

    Karen Synon
    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.