Rowlands (Migration)

[2023] AATA 1711

Rowlands (Migration) [2023] AATA 1711 (2 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Stuart Paul Rowlands
Ms Kerry Rowlands
Ms Kakuni Rowlands
Ms Meeru Rowlands

REPRESENTATIVE:  Ms Shadi Golchin (MARN: 2014964)

CASE NUMBER:  2013085

HOME AFFAIRS REFERENCE(S):          BCC2019/3735664

MEMBER:Amanda Mendes Da Costa

DATE:2 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 887 visa:

·cl 887. 213 of Schedule 2 to the Regulations.

DECISION:The Tribunal considers that the applications of the second, third and fourth named applicant be reconsidered on the basis that they meet the secondary criteria for the grant of Skilled (Residence) (Class VB) visas.

Statement made on 2 June 2023 at 12.45pm

CATCHWORDS

MIGRATION – Skilled (Residence) (Class VB) visa Subclass 887 visa – applicant worked full-time in the specified regional area for a total of at least one year – secondary criteria for the grant of the visa – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, cls 887.212, 887. 213

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 6 August 2020 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 28 July 2019. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl 887.213 of Schedule 2 to the Regulations because the applicant had not demonstrated that he had worked full-time in a specified regional area for a total of at least one year as the holder of one or more or more of the visas mentioned din cl 887.212.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. The applicants were represented in relation to the review.

6. The documentation provided by the applicants in support of the review application includes the following:

   ·Taxation return and notice of assessment for years ended 30 June 2016 and 30 June 2017.

   ·Taxation payments annual report for the year ended 30 June 2017.

   ·Invoices for services for the periods March to July 2019 and April to May 2019.

   ·Evidence of work cover for the period October to November 2016.

   ·Purchase orders for the periods September 2016 to September 2017 and  October 2016 to June 2017.

   ·Employment letter, Russell Weiss, Fortitude Homes, dated 17 May 2023.

   ·Payslips for December 2015 and May to June 2016.

   ·Invoices for the period June to October 2016.

   ·NAB statements for the period February to December 2016.

   ·CBA Bank statements for the period October 2016 to My 2018.

   ·Employment letter, Hallmark Homes, dated 17 May 2023.

   ·Business activity statements for the periods October 2016 to March 2018.

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 887.213 of Schedule 2 to the Regulations.

   Work in a regional area

9. Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl 887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

   Background

10. Departmental records shows the applicant was granted a visa outlined in cl 887.212, namely a Skilled-Regional Sponsored (Provisional) (Class SP) (subclass 489) visa on 11 August 2015 and that he lodged the current visa application on 28 July 2019.

11. In his Form 80 (dated 10 Jun 2020) the applicant claimed the following Australian employment:

    Position:         Brick Layer

    Employer:      Gold Coast Brick laying

    Address:         Tugun, Queensland, 4224

    Employment period:   December 2015 to March 2016

    Full-time work

    Employer:      Stuart Rowlands SPR Brick Laying

    Address:         Brightview, Queensland, 4311

    Employment period:    October 2016 to December 2017

    Position:         Brick Layer

    Employer:      JH Bricklaying

    Address:         Cleveland, Queensland, 4163

    Employment period:    April 2019 to May 2019

    Position:         Excavator Operator Machine Driver

    Employer:      Loan City Demolition and Recycling

    Address:         Brown Plains, Queensland, 4118

    Employment period:    May 2019 to 10 June 2020

    Full-time work and calendar year

12. The Tribunal notes that the Australian Bureau of Statistics sates that a full-time position is one which normally requires 35 hours of work per week.  However, there may be some occupations where a full-time position involves less than 35 hours a week[1].

    [1] >

    In making its decision, the Tribunal has taken not account this information and accepts that one calendar year is equivalent to 12 months or 365 calendar months.

13. The Tribunal has considered the documentation provided by the applicant in support of his Australian work experience, particularly during the period October 2016 to December 2017.

14. The Tribunal notes that Mr Russell Weiss is formerly the Site Supervisors and is now the Lead carpenter for Fortitude Homes, which is located in South Brisbane, Queensland. In his letter (dated 17 May 2023) he states that Fortitude Homes subcontracted the applicant to provide bricklaying services to the company on a full-time basis during the period October 2016 to December 2017.  Mr Weiss estimates that the applicant spent between 40 to 50 hours on site each week for the length of each job.

15. Mr Weiss further states that the applicant worked with other subcontractors on site for each job and at various addresses in a regional area.

16. The Tribunal has also considered the applicant’s taxation return, notices of assessment and business activity statements.  The Tribunal considers that the information contained in this documentation supports the information provided by Mr Weiss about the applicant’s employment with Fortitude Homes and is commensurate with the applicant being employed on a full-time basis for a total of least one year in a specified regional area during the period October 2016 to December 2017.

17. Based on the evidence before it, the Tribunal is satisfied that the applicant:

    ·worked full-time in the specified regional area for a total of at least one year; and

    ·held one of the visas listed in cl 887.212 while working in the specified regional area.

18. The Tribunal finds that the applicant satisfies cl 887.213.

19. Given its findings regarding the applicant, the Tribunal is satisfied that the applications of the second, third and fourth named applicants should be reconsidered on the basis they meet the secondary criteria for the grant of the visa.

20. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria.

    DECISION

21. The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 887 visa:

    · cl 887.213 of Schedule 2 to the Regulations.

22. The Tribunal considers that the application of the second, third and fourth named applicants should be reconsidered on the basis that they meet the secondary criteria for Skilled (Residence) (Class VB) visas.

    Amanda Mendes Da Costa
    Member