Pyramids Render Stars Pty Ltd (Migration)

[2020] AATA 3220

Pyramids Render Stars Pty Ltd (Migration) [2020] AATA 3220 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Pyramids Render Stars Pty Ltd

VISA APPLICANT:  Mr Mohamed Adel Ahmed Risha

CASE NUMBER:  1834002

DIBP REFERENCE(S):  BCC2018/750150

MEMBER:Penelope Hunter

DATE:11 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 11 June 2020 at 6:00pm

CATCHWORDS
MIGRATION– Temporary Business Entry (Class UC) visa–Subclass 457– evidence of the applicant’s employment provided – employment is ongoing –skills, qualification and employment background of the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, r 2.75, 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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 14 February 2018.

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 visa on 14 November 2018 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the visa applicant had demonstrated that he had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

5. Mr Amir Abdel Badie, on behalf of the review applicant, and the visa applicant appeared before the Tribunal on 3 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant was represented in relation to the review by its registered migration agent and the agent participated in the 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)(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. 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.

10. In this case the nominated occupation is a plasterer. The visa applicant was nominated in the position by the applicant. The applicant’s nominated was approved under s. 140GB of the Act on 19 October 2018 and is valid until 4 July 2022.

11. When considering whether the applicant meets the requirements of cl.457.223(4)(da), the Australian and New Zealand Standard Classification of Occupations (ANZSCO) has been relied upon as a guide to inform the Tribunal of the usual duties of Solid Plasterer (ANZSCO 333212) and what qualifications or work experience is expected to work in the nominated occupation.

12. For the occupation of a Solid Plasterer, the indicative skill level as set out in ANZSCO is a level of skill commensurate with an AQF Certificate III including at least two years on-the-job training, or an AQF Certificate IV. The description of a Solid Plasterer in ANZSCO is as follows:

    Applies decorative and protective coverings of plaster, cement and similar materials to the interiors and exteriors of structures.

13. The tasks of the occupation as listed in ANZSCO also include the following:

    ·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 

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

14. 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).

15. The visa applicant is a national of Egypt. He has been in Australia since 2007. With the visa application he submitted to the Department a copy of an AQF Certificate III in Solid Plastering issued on 9 March 2018. No supplemental material was provided in relation to his work experience.

16. In refusing the application the delegate noted that the visa applicant had provided relevant evidence of his qualification, however while he had set out in the visa application that he had been employed by the sponsoring applicant since May 2016, no evidence was submitted to substantiate this claim.

17. At the hearing the visa applicant told the Tribunal that he had been employed by the review applicant since 2016. While he was on a student visa, he had started working for the review applicant part time. In a letter of reference dated 1 June 2020, and submitted to the Tribunal, Mr Abdel Badie confirmed that the visa applicant had been employed as a solid plasterer in the review applicant’s business from 10 May 2016. As further evidence of the applicant’s employment, the Tribunal was provided with PAYG Summaries for the applicant issued by the review applicant for the years ending 30 June 2016, 30 June 2017, 30 June 2018 and 20 June 2019. The relevant payslips for the financial years also submitted to the Tribunal confirm that the applicant worked 40 hours per fortnight. The Tribunal is satisfied that this is equivalent to 2 years full-time work and the applicant’s employment is ongoing.

18. The Tribunal discussed with the applicant the tasks that he undertakes in his position and the include measuring, marking and cutting plasterboard for residential and commercial premises and lifting and positioning the panels, then securing them to the walls ceilings and batons. In addition, he would pre-fix cornices, window mouldings, ceiling centres and other panel fittings. Furthermore, the applicant claimed to engage in plumbing and straightening of joints and walls, the repair of any damage, then mixing and applying coats of plaster and levelling to create a smooth finish.

19. At the hearing Mr Abdel Badie confirmed that he employed over 20 employees. He told the Tribunal that the applicant was so proficient in the skills for the position that he worked in the role of team leader for many jobs. Despite the COVID-19 pandemic Mr Abdel Badie gave evidence that his business was continuing to operate and he anticipated continuing to employ the visa applicant for the foreseeable future. Finally Mr Abdel Badie set out in his employment reference dated 1 June 2010 that the visa applicant undertook additional tasks consistent with the ANSCO skills description including; applying coats of plaster to interior walls, ceilings and partitions of buildings to produce a finished surface, according to blueprints, architects drawings, or oral instructions using hand tools and portable power tools; directing workers to mix plaster to desired consistency and erecting scaffolds.

20. Therefore, on the material before it, the Tribunal is satisfied that the applicant has an appropriate qualification above the AQF Certificate IV level and at least two years relevant experience in the role of Solid Plasterer.

21. The Tribunal finds, on the evidence and with reference to the ANZSCO and relevant documentary and oral evidence, that the applicant possesses, and has demonstrated he has, the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

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

23. 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

24. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(da) of Schedule 2 to the Regulations.

    Penelope Hunter
    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.