Valencia Rendon (Migration)

[2020] AATA 3219

Valencia Rendon (Migration) [2020] AATA 3219 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juan David Valencia Rendon

CASE NUMBER:  1831879

DIBP REFERENCE(S):  BCC2018/567097

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 10:34am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – demonstrated skills, qualifications and employment to perform the nominated occupation – occupation of Bricklayer – evidence of relevant qualification – reference for relevant work experience – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, 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 2 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 9 October 2018 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had demonstrated that he had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

5. The applicant appeared before the Tribunal by telephone on 21 May 2020. 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, who also participated in 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)(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.

10. In this case the nomination occupation is Bricklayer (ANZSCO 331111). The applicant’s 457 visa application was made on the basis of an approved nomination by AFM MASONRY PTY LTD. Departmental records indicate that they are an approved standard business sponsor (until 11 September 2020) 

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 a Bricklayer (ANZSCO 331111) and what qualifications or work experience is expected to work in the nominated occupation.

12. For the occupation of Bricklayer, the indicative skill level is AQF Certificate III including at least 2 years on-the-job training, or AQF Certificate IV. It is also set out that at least three years of relevant experience may substitute for the formal qualifications.

13. The task of the occupation, as set out in ANZSCO are identified as follows:

    • studying plans and specifications to determine materials required, dimensions and installation procedures
    • erecting and dismantling restricted height scaffolding
    • sealing foundations with damp-resistant materials and spreading layers of mortar to serve as base and binder for blocks using trowels
    • laying bricks in rows, designs and shapes, and spreading mortar between joints
    • embedding blocks in mortar and removing excess mortar
    • checking vertical and horizontal alignment
    • cutting, shaping and polishing stones and bricks using machines and hand tools, and shaping bricks to fit irregular spaces
    • repairing and maintaining bricks, cement blocks and related structures
    • designing and cutting monumental masonry and lettering
    • constructing walls using stone slabs and large masonry slab blocks

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 delegate refused the visa because the applicant had not provided evidence that he held a relevant qualification, and his work reference as a worker labourer from January 2007 to March 2009, was not considered sufficient for the applicant to demonstrate that he had the relevant three years’ experience.

16. On 20 May 2020, the applicant submitted to the Tribunal the following relevant material:

    (i)Certificate III in Bricklaying/Blocklaying, dated issued 24 August 2018.

    (ii)Agent’s submission dated 20 May 2020

    (iii)Work reference  for the applicant from Alberto Franco Mastronardo, AFM Masonry Pty Ltd, dated 18 May 2020, confirming the applicant’s employment as a full-time Bricklayer since May 2018 to current.

    (iv)PAYG summary for year ending 30 June 2019, payer AFM Masonry Pty Ltd, Gross Payments $84,732.

    (v)Payslips from AFM Masonry for January, February and April 2020.

17. The evidence before the Tribunal is that the applicant holds a relevant qualification, being a Certificate III in Bricklaying/Blocklaying, that was issued on 24 August 2018. Prior to completing this qualification, the applicant has submitted to the Department, with his application, evidence of his former employment in Colombia with a civil engineer. This employment was for two years between January 2007 and March 2009. His former employer has also set out that the applicant was involved in relevant tasks including the building of masonry or concrete block and cement walls; the preparation of concrete and cement combinations for structural components; the plaster preparation to cover masonry or concrete block and cement walls and the demolition work of different components inside buildings.

18. While the Tribunal notes that the delegate did not dispute that the applicant’s former employment in Colombia was relevant employment, the material before the Tribunal is that he has obtained a further two years relevant experience. The reference from his nominating employer supports that the applicant has been employed in the role of bricklayer since May 2018. In his reference dated 18 May 2020, the director of his employer has set out that in the role the applicant has also performed tasks consistent with the relevant skills listed in ANZSCO including working from plans and specifications to confirm the materials required, dimensions and installation procedures from clients; ensuring alignment is level and accurate; and repairing and maintaining clay bricks. The Tribunal also accepts the evidence in the form of PAYE summaries and payslips that further demonstrate his ongoing employment in the role.

19. Therefore, on the material before it, the Tribunal is satisfied that the applicant has an appropriate AQF Certificate III qualification and at least two years relevant experience in the role of Bricklayer.

20. 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.

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

22. 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

23. 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.