Smyk (Migration)

[2017] AATA 2020

Smyk (Migration) [2017] AATA 2020 (4 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Piotr Kazimierz Smyk

CASE NUMBER:  1612893

DIBP REFERENCE(S):  BCC2015/1711430

MEMBER:Hugh Sanderson

DATE:4 October 2017

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)(e) of Schedule 2 to the Regulations.

Statement made on 04 October 2017 at 9:48am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills assessment – Metal Machinists (First Class) – Successful Trades Recognition Australia assessment provided

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 457.223(4)(e)

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 15 June 2015.

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 28 July 2016 on the basis that cl.457.223(4)(e) was not met because the applicant had failed to respond to requests that he provide evidence of a successful outcome for a skills assessment by Trades Recognition Australia.

   Background

5. The applicant is a citizen of Poland and first arrived in Australia in 2010. He was nominated for the visa by Codess Interiors Pty Ltd for the position as a Metal Machinists (First Class).

6. The applicant provided a CV where he claimed he had worked from 1988 to 1989 with a production facility dealing with service, repair and maintenance of machinery. From 1993 to 1994 he worked with Lumel Electricity cutting metal for the processing of and preparation for electroplating metal elements and from 1995 to 2009 for Magnaplast as an electro-mechanic, repairing and installing machines on production lines. After arriving in Australia on a Student visa in 2010 the applicant had studied general English and sport and fitness until 2015. He had been working with Codess Interiors as a metal machinist from 2011 to 2015.

7. The Department wrote to the applicant on a number of occasions requesting further information in support of the application. Specifically, the applicant was requested to provide evidence of a successful completion of the skills assessment for migration purposes. On 15 February 2016 the applicant advised the Department that he had commenced undertaking a skills assessment by Trades Recognition Australia (TRA). The applicant was requested to provide evidence of the successful outcome of the skills assessment by 28 April 2016, however, he did not provide this to the Department.

8. The delegate was not satisfied that there was sufficient evidence to demonstrate the applicant had provided a formal response to the Department and there was no evidence to indicate that he had obtained a successful outcome from a TRA Migration Skills Assessment. Accordingly, the delegate was not satisfied the applicant had demonstrated that he had the skills necessary to perform the approved nomination in the manner specified by the Minister and therefore did not meet the criteria in cl.457.223(4)(e) and refused the application.

   Information to the Tribunal

9. On 18 May 2017, the applicant was invited to attend a hearing before the Tribunal. In the invitation, the applicant was requested to provide evidence that he had a suitable skills assessment from TRA for the occupation of Metal Machinist (First Class). That hearing had to be postponed as the member was not available. The applicant did not provided the information requested. The Tribunal wrote to the applicant on 13 June 2017 inviting him to a further hearing. He was again invited to provide information that he had a suitable skills assessment from TRA and was required to provide that information by 5 July 2017. No further information was provided by the applicant to the Tribunal prior to that date.

10. The applicant’s agent wrote to the Tribunal on 11 July 2017 requesting a postponement of the hearing on the basis that the agent was ill. A medical certificate was provided which stated that the applicant’s agent, Mr Hayba, “is suffering from fever via illness” but did not indicate that he was unfit for work. The Tribunal declined to postpone the hearing and advised the agent he could, if he wished, to attend the hearing by phone.

11. On 12 July 2017, the day before the hearing, the applicant’s agent provided the following documents to the Tribunal:

    ·TRA Migration Skills Assessment Outcome dated 2 May 2016 noting the applicant had been assessed as unsuccessful;

    ·Superannuation Savings Account for the applicant dated 31 December 2011 and 31 December 2016; and

    ·Printout of Card Transactions for Codless Interiors for the period 1 January 2011 to 24 May 2017 showing payments made to the applicant.

12. The applicant appeared before the Tribunal on 13 July 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended in person without any apparent ill effect from his illness he previously claimed would prevent him from attending.

13. The applicant stated that he had not obtained a successful skills assessment from TRA. He said that he had paid his agent $1,000 in either May or June 2017 so that another assessment could be done, but nothing had been done to contact TRA to carry out the assessment. The Tribunal noted the length of time that has passed since the applicant had obtained the unsuccessful TRA Migration Skills Assessment, the time since the Department’s decision and the multiple occasions the Tribunal had requested the applicant provide the skills assessment. The applicant claimed that he was not able to do it sooner because his passport expired and he had to get another one.

14. The Tribunal agreed to delay any decision on the matter to allow the applicant to apply for a further TRA skills assessment on the basis that the application was made that day and information was provided as to when the assessment would be completed.

15. The applicant provided a TRA Migration Skills Assessment Outcome dated 3 October 2017 to the Tribunal. This stated that TRA had assessed his application as successful for the occupation of Metal Machinist (First Class) – 323214.

16. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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

18. 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 Metal Machinist (First Class).

19. The applicant was requested by the Department to provide evidence of successful completion of a skills assessment for migration purposes. The applicant has now provided such evidence by the provision of the report from Trades Recognition Australia dated 3 October 2017 which has assessed his application as successful.

20. As the applicant has now provided a Trades Recognition Australia report finding his skills assessment for migration purposes is successful the applicant satisfies the requirements of cl.457.223(4)(e).

21. 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

22. 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.

    Hugh Sanderson
    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.