Nguyen (Migration)

Nguyen (Migration) [2022] AATA 1605 (23 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:
Mr Trung Son Nguyen

Ms Thi Men Dinh

Miss Elisia An Nguyen
REPRESENTATIVE:  Mr Michael Hanrahan (MARN: 1463825)
CASE NUMBER:  1830609
HOME AFFAIRS REFERENCE(S):          BCC2018/2626439
MEMBER:Warren Stooke AM
DATE:23 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first and second named applicants meet the following criteria for a Subclass 482 visa:
·cl 482.221 of Schedule 2 to the Regulations; and
·cl 482.311 of Schedule 2 to the Regulations.

Statement made on 23 March 2022 at 1:40pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Civil Engineer – applicant has an approved standard business sponsor –approved nomination – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 482.221, 482.311

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 October 2018 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 13 July 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Civil Engineer – ANZSCO Code: 233211.
The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the applicant did not have an approved standard business sponsor for the position of Civil Engineer – ANZSCO Code: 233211.
The applicants appeared before the Tribunal on 8 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the nominating sponsor, P H Homes Pty Ltd.
The applicant provided evidence that he had received and read the delegate’s decision and provided a copy of the decision to the Tribunal with the application for review. The applicant stated that he understood the visa application was refused because the application did not have full evidence to work as a civil engineer and the payment of a market salary.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has an approved standard business sponsor for the position Civil Engineer – ANZSCO Code: 233211.
The applicant stated that he was not sure of the reason for the refusal of the application but understood the application did not have full evidence to work as a civil engineer and the payment of a market salary.
The applicant stated that he had 10 years working in construction projects and that he completed a master course in Vietnam before coming to Australia and then completed a Master of Technology (Civil) at Swinburne University.
The applicant stated that he is qualified in design and civil engineering.
Evidence of P H Homes (the nominator)
The nominator stated that the business engages in the design of residential homes and provides structural engineering. He stated that the business commenced on 3 November 2005 and that the business has Structural Engineering and builder registrations.
The nominator stated that he was the Managing Director of the business and that he is a qualified consulting engineer and builder.
The nominator stated that the employees are covered by an award, which has been identified as the Professional Employees Modern Award 2010, which covers engineers.
The nominator provided the Tribunal with evidence of their Standard Business Sponsor approval notification that was approved by the Department of Home Affairs on 17 July 2018, which is valid to 17 July 2023.
The nominator provided evidence that the nominee was employed on a new contract on 31 January 2022 to commence upon the grant of a 482 visa on a salary of $75,000 and will continue beyond the expiration date for a period of at least 2 years duration.
The Tribunal was provided with evidence that the nominee satisfied the English language test requirements with an EILTS score of 6.5 that was undertaken on 31 May 2016.
The nominator provided evidence that the nominee received for the position of Civil Engineer - ANZSCO Code: 233211 an assessment by Engineers Australia on 25 July 2019, as ‘successful’ and completed a Master of Technology (Civil) at Swinburne University, which was awarded on 11 December 2015.
The nominator provided evidence of a contract salary of $75,000 per annum upon the grant of a 482 visa with superannuation paid into the Australian Superannuation fund. The applicant stated in evidence that the nominee is currently paid $72,000, which increases to $75,000 from the commencement of the new contract of 31 January 2022.
The applicant provided evidence of market testing and that the position of Graduate Structural Engineer was advertised on Indeed on 12 July 2018 with a salary range of $55,000 to $65,000; on Adzune Australia on 12 July 2018 with a salary of $55,000 to $65,000 and Seek from 4 September 2018 with a salary range of $50,000 to $54,999.
The nominator submitted material relating to the pay-scales for the position of civil engineer with the concluding statement, as follows:
“In addition to the pay scale report showing the range of pay a employee with 3
years work experience would be paid, I have also included the relevant
comparison of junior level civil engineers would be paid with little (3 years) or
no Australian civil engineering experience as the nominee has. With the job ads
and payscale report we can clearly see that a person with limited Australian
work experience would be paid in the range of 55K to 65K as we were searching
for in the Australian market when we were advertising for the position. As the
nominee has overseas experience but no Australian experience he would be positioned at the 58K per annum mark.”
The nominator stated that he employed the nominee because he has a Master’s degree from Swinburne and he can speak the Vietnamese language, as clients were generally of Vietnamese backgrounds. The nominee also had experience with residential civil works and structural design.
The nominator stated that he only interviewed the nominee, as he found him to be suitable from the more than 10 applicants, whose backgrounds were not suitable.
The nominator provided the Tribunal with an organisation chart prior to hearing and stated that the organisation has the business director (Civil Engineer) an employed Engineer on a 485 visa and the nominee.
The applicant provided the Tribunal with evidence that the nominee has the following qualifications:
a.Bachelor of Engineering – Ho Chi Minh City University of Technology – completed November 2001;
b.Master of Technology (Civil) – Swinburne University awarded 11 December 2015.
The nominator provided evidence that the nominee has been assessed by Engineers Australia on 25 July 2019 as a Professional Engineer: Skill Level 1 - Civil Engineer.
The nominator provided evidence that the nominee undertakes the following duties and responsibilities in the Civil Structural Engineer – ANZSCO Code: 233211:
·     Minimum 3 years work experience in Civil engineering in construction
·     Reading and creating Autocad drawings
·     Ability to deal with clients as a professional consultant
·     Responsibilities
·     Design and monitor closely the drainage and infrastructure of new
·     developments Reporting on cost and progress
·     Creating workflow for the construction elements
·     Managing contractor and supply
·     Structural design
·     Consultation with clients on technical and structural work
·     Civil design and co-ordination with subcontractors and suppliers
·     The nominator provided evidence that the nominee undertakes the following duties and responsibilities in the Civil Structural Engineer – ANZSCO Code: 233211:
The nominator stated that the nominee commenced employment with the business in January 2019.
Requirement for an approved nomination
Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.
On the basis that the nomination of P H Homes Pty Ltd for the sponsorship of the applicant in this case was approved in a substitute decision by the Tribunal on 23 March 2022 in Case Matter: 1828661, the applicant has an approved standard business sponsor for the occupation of Civil Engineer – ANZSCO Code: 233211.
For these reasons the requirements of cl 482.212(1) are met.
On the basis that the primary applicant has an approved standard business sponsor, it follows that the secondary applicant is a member of a family unit that has met the required criteria.
Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

DECISION

The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first and second named applicants meet the following criteria for a Subclass 482 visa:
· cl 482.212 of Schedule 2 to the Regulations; and
· cl 482.311 of Schedule 2 to the Regulations.
Warren Stooke AM
Member

[2022] AATA 1605

23 March 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal