Valle (Migration)

[2021] AATA 1741

Valle (Migration) [2021] AATA 1741 (26 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Emanuel Matias Alberto Valle
Mrs Cintia Gabriela Zapata

CASE NUMBER:  1830644

HOME AFFAIRS REFERENCE(S):          BCC2017/3744622

MEMBER:C. Packer

DATE:26 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl 457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 26 May 2021 at 6:09pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – Glazier – necessary skills, qualifications and experience – relevant work experience as substitute for formal qualification – experience as a subcontractor – full-time employment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 12 October 2017. 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.

3.    The delegate refused to grant the visas on 2 October 2018 on the basis that cl 457.223(4)(da) was not met.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

5.    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

6.    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 Glazier 333111.

7.    The Australian and New Zealand Standard Classification of Occupations (ANZSCO) specifies that the indicative skill level of the occupation Glazier 333111 is commensurate with an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV or higher qualification. At least three years of relevant experience may substitute for a formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

8.    A submission of 6 April 2021 summarised the applicant’s employment:

Name of employer	Type of employment	Date from	Date to	Evidence
Premium Victoria Pty Ltd	Subcontractor	9/3/2015	2/6/2015	Letter of reference, payment summary, bank statements showing payments
Many Fitters Pty Ltd as subcontractor of Stegbar Pty Ltd (a Jeld-wen Company)	Subcontractor	9/9/2015	30/6/2016	Letter of reference, payment summary, bank statements showing payments
Many Fitters Pty Ltd as subcontractor of Stegbar Pty Ltd (a Jeld-wen Company)	Subcontractor	1/7/2016	30/6/2017	Letter of reference, payment summary, bank statements showing payments
Stegbar Pty Ltd (a Jeld-wen Company)	Employee	31/7/2017	30/6/2018	Superannuation Statement, PAYG, notice of assessment and reference letter
Stegbar Pty Ltd (a Jeld-wen Company)	Employee	1/7/2018	30/6/2019	Superannuation Statement, Income Statement, notice of assessment and reference letter
Stegbar Pty Ltd (a Jeld-wen Company)	Employee	1/7/2019	30/6/2020	Superannuation Statement, Income Statement, notice of assessment and reference letter
Stegbar Pty Ltd (a Jeld-wen Company)	Employee	1/7/2020	1/4/2021 (current)	Superannuation Statement, Income Statement, notice of assessment and reference letter
Total of experience:	5 years 9 months

9.    A reference dated 1 April 2021 signed by General Manager Jeld-Wen Australia states that the applicant has been employed by Stegbar Pty Ltd (part of Jeld-Wen Australia Pty Ltd) as a glazier. He had been hired as subcontractor from September 2015 to 30 July 2017, and had been an employee since 31 July 2017. The reference listed his skills and duties, and these are consistent with the skills and duties of a glazier 333111.

1. The applicant’s Tax assessments 2018, 2019 and 2020 and super payments, PAYG payment summary 2018, ATO income statements 2019 and 2020 support his full-time employment in those three years.

2. The reference dated 6 March 2018 from CFO, Premium Victoria Pty Ltd states the applicant performed duties of installing glass and mirrors and shower screens, for three months in 2015. However, no hours of employment are shown. His statement of 6 April 2021 shows he worked as a subcontractor with his own business Many Fitters Pty Ltd from September 2015 to June 2017. However, no hours of employment are shown.

3. In sum, the applicant has just over two years on-the-job experience as a glazier from March 2015 to 31 July 2017. However, this experience is difficult to quantify as he worked as a subcontractor including operating his own business, and so the Tribunal gives it less weight. Nonetheless, the Tribunal is satisfied the applicant has been employed full-time as a Glazier 333111 by Stegbar Pty Ltd since 31 July 2017, now a period of three years and 10 months. The Tribunal is satisfied that his full-time employment as a glazier for three years and 10 months, together with the previous experience as a subcontractor shows he has attained the indicative skill level of the occupation Glazier 333111. The Tribunal is satisfied the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

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

5. 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

1. The Tribunal remits the application for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

   ·cl 457.223(4)(da) of Schedule 2 to the Regulations.

C. Packer
Member

ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship

…

1. 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.

   …

2. 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.

   …

3. 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.