Singh (Migration)

[2018] AATA 3827

Singh (Migration) [2018] AATA 3827 (4 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Surinder Singh
Mrs Iqbal Kaur
Mr Gurjot Singh

CASE NUMBER:  1711122

HOME AFFAIRS REFERENCE(S):           BCC2017/420998

MEMBER:Warren Stooke AM

DATE:4 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.233 of Schedule 2 to the Regulations; and

·cl.186.223 of Schedule 2 to the Regulations.

The Tribunal remits the applications in relation to the secondary applicants for reconsideration in accordance with

·cl.186.311 of Schedule 2 to the Regulations .

Statement made on 04 September 2018 at 11:08am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 Employer Nomination Scheme – Direct Entry stream – position of Metal Fabricator/Welder – requisite skills and remunerations – nomination approved on review – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cls 186.311, 186.223, 186.233, 186.242; rr 1.13A, 1.13B, 5.19

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 Immigration and Border Protection on 10 May 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 February 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (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. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Metal Fabricator/Welder [ANZSCO 323213] with Sunshine Trailers Vic Pty Ltd.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233, 186.223 and 186.242 of Schedule 2 to the Regulations because the correlating nomination did not seek to meet the requirements of and was not assessed under subregulation 5.19(3).

6. The applicants appeared before the Tribunal on 7 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr. Camilleri. The applicants were represented in relation to the review by their 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 applicant has an approved nominated position and meets the criteria pertaining to engagement in that position.

   Nomination of a position

9. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

10. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

11. The Tribunal, following the hearing with The Trustees for J L B Camilleri Family Trust (T/A Sunshine Trailers Vic Pty Ltd) on 7 August 2018 and the subsequent decision of the Tribunal in Case Matter 1707719 of 30 August 2018, is satisfied that the nominee has an approved nominated position.

12. The Tribunal is satisfied that the skills applied by the nominee, with Sunshine Trailers Vic Pty Ltd, in its provision of custom built trailers and toolboxes, conform with the following skills identified in ANZSCO 323213:

    “UNIT GROUP 3232 METAL FITTERS AND MACHINISTS

    
    METAL FITTERS AND MACHINISTS fit and assemble fabricated metal parts into products, set up machining tools, production machines and textile machines, and operate machining tools and machines to shape metal stock and castings.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    a.studying drawings and specifications to determine suitable material, method and sequence of operations, and machine settings

    b.fitting fabricated metal parts into products and assembling metal parts and subassemblies to produce machines and equipment

    c.checking fabricated and assembled metal parts for accuracy, clearance and fit using precision measuring instruments

    d.setting guides, stops and other controls on machining tools, setting up prescribed cutting and shaping tools and dies in machines and presses, and setting controls for textile machines

    e.forming metal stock and castings to fine tolerances using machining tools to press, cut, grind, plane, bore and drill metal

    f.cutting, threading, bending and installing hydraulic and pneumatic pipes and lines

    g.preparing pattern mechanisms to control the operation of textile machines used to spin, weave, knit, sew and tuft fabric

    h.diagnosing faults and performing operational maintenance of machines, and overhauling and repairing mechanical parts and fluid power equipment

    i.may erect machines and equipment on-site.

    323213 FITTER-WELDER

    Fits, assembles and welds metal parts and subassemblies to fabricate production machines and other equipment.

    Skill Level: 3”

13. The nominee is paid a wage that exceeds the minimum rate of pay provided under the award and a base salary of $60,070.40 per annum is paid to the nominee, exclusive of superannuation as per the obligation of the contract of employment [Tribunal Case 1707719 - Folio 58 and 59]. The Tribunal, following a review of the submitted material, which was provided prior to the hearing and the evidence at hearing has verified the remuneration paid to the nominee, including superannuation contributions, which are paid into Cbus.

14. The applicant gave evidence that he arrived in Australia in July 2009 and worked on a farm in Kinglake, as a horticulturalist. He subsequently moved to the city once he had completed his studies at the Kangan Institute where he undertook a Certificate III in Engineering Fabrication – Trade and qualified on 5 December 2011. He also has qualifications in First Aid having completed the Senior (Level ii) First Aid Course and a Work Safely in Construction Industry course through Construction Training International. In addition, the applicant has qualified with a Construction Induction Card (Registration No. 0005188220 01), which is a WorkSafe prerequisite for working in the construction industry.

15. The applicant gave evidence that he was a welder in India, prior to arriving in Australia. He stated that he has a wife and a son who is 10 years old.

16. On the basis of the foregoing the Tribunal is satisfied that the applicant has the requisite skill, contract term for more than 2 years and remunerations and conditions of employment to meet the requirements of the nominated position.

17. Therefore, cl.186.233 is met.

18. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

19. The Tribunal is also satisfied that the secondary applicants, on the basis that the primary applicant satisfies the requirements of cl.186.233, that the criteria pertaining to cl.186.311 have been met.

    DECISION

20. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.233 of Schedule 2 to the Regulations; and

    ·cl.186.223 of Schedule 2 to the Regulations.

21. The Tribunal remits the applications in relation to the secondary applicants for reconsideration in accordance with 186.311 of Schedule 2 of the Regulations.

    Warren Stooke AM
    Member

    
    

    ATTACHMENT A

    186.233(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made not more than 6 months after the Minister approved the nomination.