SHAIK (Migration)

[2021] AATA 2372

SHAIK (Migration) [2021] AATA 2372 (22 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Azhar SHAIK

CASE NUMBER:  1834849

HOME AFFAIRS REFERENCE(S):          BCC2017/2930576

MEMBER:Mary Sheargold

DATE:22 June 2021

PLACE OF DECISION:  Melbourne

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)(e) of Schedule 2 to the Regulations.

Statement made on 22 June 2021 at 1:02pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – occupation of Motor Mechanic – skills assessment – registration in the nominated occupation by a competent authority – NSW Tradesperson’s Certificate – evidence of relevant work experience – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 457.223

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 Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 15 August 2017.

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 (Cth) (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 8 November 2018 on the basis that cl 457.223(4)(e) was not met because the applicant could not provide evidence of a successful 457 Visa Skills Assessment from Trades Recognition Australia as requested by the delegate.

5. The applicant appeared before the Tribunal on 17 June 2021 by telephone to give evidence and present arguments. 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 applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal 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)(e).

   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. In this case the nominated occupation is Motor Mechanic (General), ANZSCO 321211.

10. The delegate’s decision states that the applicant was requested to demonstrate that he had the skills that are necessary to perform the tasks of the nominated occupation of Motor Mechanic (General) ANZSCO 321211 by way of “a successful result for a TRA [Trades Recognition Australia] 457 Skills Assessment” and noted that the delegate requested this from the applicant on 9 November 2017.  The delegate noted that the applicant was followed up on 16 March 2018 and 4 September 2018, but at the date of the delegate’s decision, 8 November 2018, the requested evidence had not been provided.

11. The Tribunal wrote to the applicant on 24 March 2021 pursuant to s.359(2) of the Act seeking evidence of a skills assessment in the nominated occupation.  A response was required by 7 April 2021.  On 7 April 2021, the applicant’s representative wrote to the Tribunal enclosing detailed submissions and evidence.  Importantly, the representative’s written submissions noted that the specific skills assessment requested by the delegate, a TRA 457 Skills Assessment, could no longer be obtained.  The representative enclosed a body of evidence supporting the contention that the applicant does have the skills necessary to work in the nominated occupation of Motor Mechanic (General) per the requirements set out in the ANZSCO, and noted that the applicant was making efforts to obtain a skills assessment for the Temporary Skills Shortage (Subclass 482) visa program as this replaced the skills assessment for the Subclass 457 visa.

12. Prior to the hearing, the applicant provided evidence of a successful outcome for the first portion of the TSS Subclass 482 skills assessment and evidence that he had taken steps to progress to the second stage of that assessment.  He also provided a statutory declaration from Mohd Salim Ahmedbhai Gena, the director of Meher International Pty Ltd t/a Meher Auto Service Centre, the applicant’s approved nominating sponsor, confirming that he had worked full time in the role of Motor Mechanic in that business since 31 July 2017, having performed the role in a part time and a voluntary capacity in the 18 months prior.  The applicant also provided evidence of his Tradesperson’s Certificate as a Motor Mechanic, with an expiry date of 18 April 2023.

13. At the hearing, the applicant explained that he had worked as a mechanic in India prior to arriving in Australia on a student visa where he was to study a Masters level degree in engineering.  The applicant indicated that he had not completed that course, but had obtained a Certificate III as a Motor Mechanic, awarded on the basis of recognised prior learning from his studies and work in India.

14. The Tribunal explained to the applicant that it was open to the Tribunal to determine whether or not he would be required to demonstrate that he has the skills that are necessary to perform the occupation of Motor Mechanic, and if it determined that he would be required to demonstrate this, that it was open to the Tribunal to determine the manner in which that must be demonstrated.  The Tribunal notes the Departmental policy in relation to this set out in the PAM3 guidelines that applied at the time the applicant applied for this visa, and notes that the Tribunal is not bound by that policy.  The Tribunal notes that the applicant is required to demonstrate that he meets the requirements of cl.457.223(4)(e) at the time of decision, not the time of the application.  The Tribunal further notes that it is not possible for the applicant to obtain a TRA 457 Skills Assessment, as requested by the delegate in November 2017, at the time of this decision.

15. The Tribunal has determined that the applicant is required to demonstrate he has the necessary skills to work in the nominated occupation, and determines that he must demonstrate this by providing evidence:

    a.of registration in the nominated occupation by a competent authority, and

    b.that he meets the indicative skill level set out in the ANZSCO description for the role of Motor Mechanic (General) 321211.

16. The applicant has provided evidence that he holds a Tradesperson’s Certificate issued by the NSW Department of Fair Trading in the Repair Class of Motor Mechanic, valid until 18 April 2023, as well as evidence from his nominating employer that he has worked in the role of Motor Mechanic (General) ANZSCO 321211 in a full time capacity since 31 July 2017 (including a statutory declaration from the director of the nominating sponsor, as well as PAYG and Notices of Assessment from the Australian Taxation Office over the last 3 financial years, and photographic evidence of the applicant’s work with the nominating sponsor).  The indicative skill level set out in ANZSCO for Motor Mechanic (General) includes an AQF Certificate III including at least 2 years of on the job experience.  The Tribunal notes that the Departmental file contains a copy of the applicant’s Certificate III in Light Vehicle Mechanical Technology from the Australian Industrial Systems Institute dated 4 April 2017.

17. Based on the evidence before it, the Tribunal finds that the applicant is registered with a competent authority, being the NSW Department of Fair Trading, to work as a Motor Mechanic, and that he meets the indicative skill level for the role of Motor Mechanic as set out in the ANZSCO descriptor by virtue of holding a Certificate III in Light Vehicle Mechanical Technology and almost 4 years of on the job experience.

18. For these reasons the applicant satisfies the requirements of cl 457.223(4)(e).

19. 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

20. 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)(e) of Schedule 2 to the Regulations.

    Mary Sheargold
    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.