Velasquez Valencia (Migration)

[2018] AATA 5331

Velasquez Valencia (Migration) [2018] AATA 5331 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Cesar Augusto Velasquez Valencia
Mrs Maria Elena Hurtado Perez
Mr Santiago Velasquez Hurtado
Mr Camilo Velasquez Hurtado

CASE NUMBER:  1704925

DIBP REFERENCE(S):  CLF2011/34430 CLF2011/91902 CLF2015/24917 CLF2016/45804 CLF2017/61346

MEMBER:Bridget Cullen

DATE AND TIME OF

ORAL DECISION AND REASONS:          18 October 2018 at 12:17 pm (QLD time)

DATE OF WRITTEN RECORD:                30 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the decisions under review for reconsideration, with the directions that the applicants meet the following criteria for Employer Nomination (Residence) (Class BW) Subclass 856 visas:

The first named applicant meets cl.856.221 of Schedule 2 to the Regulations; and

The second, third, and fourth named applicants meet cl.856.312 of Schedule 2 to the Regulations.

Statement made on 30 October 2018 at 5:09pm

CATCHWORDS
MIGRATION – Employer Nomination (Residence) (Class BW) visa – Subclass 856 (Employer Nomination Scheme) – Building Associate – nature of employment with nominating employer – genuine need of position – painting and decorating business – alleged breach of immigration law by nominating employer – no record of any adverse action taken – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 856.221, 856.312

CASES
Huang v Minister for Immigration and Border Protection [2014] FCCA 1581

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 3 March 2017 to refuse to grant the visa applicants Employer Nomination (Residence) (Class BW) Subclass 856 visas under the Migration Act 1958 (the Act).

2. At the hearing on 18 October 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The decision of the Tribunal is to remit the applications for Employer Nomination (Residence) (Class BW) Subclass 856 visas for reconsideration, with the direction that the first-named applicant meets the following criteria, clause 856.221 of Schedule 2 to the Regulations.  The second, third and fourth named applicants meet the following criteria; clause 856.312 of Schedule 2 to the Regulations. 

4. The applicants applied for the Employer Nomination (Residence) (Class BW) Subclass 856 visas on 3 June 2011, on the basis of the first-named applicant’s proposed employment in the position of Building Associate (ANZSCO 312112) for the nominator, CC Perez and CA Perez, trading as United Colours Painting and Decorating. 

5. The position had been nominated for approval, as an approved appointment under regulation 5.19 of the Migration Regulations 1994. At the time of application, class BW contained two subclasses, subclass 856, the employer nomination scheme, which is the subclass relevant here. For the sake of completeness, the tribunal notes that it also contained subclass 857, but that is not relevant in the present case.

6. As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting the requirements of regulation 5.19(2) of the Migration Regulations 1994, the relevant subclass in the present case is subclass 856.

7. The criteria for an Employer Nomination (Residence) (Class BW) Subclass 856 visa are set out in Part 856 of Schedule 2 to the Regulations.  The primary criteria must be satisfied by at least one applicant of the members of the family unit.  Here, the second, third and fourth named applicants need satisfy only the secondary criteria.

8. The Delegate refused to grant the visas because the applicant did not meet clause 856.221(c) of Schedule 2 to the Regulations, because the Delegate found that the employer/nominator, CC Perez and CA Perez, trading as United Colours Painting and Decorating, breached immigration law whilst a standard business sponsor under the 457 program, and further found that the nominator’s business activities, as reported in its 2016 partnership tax return with Australian Tax Office, demonstrated that the business did not require the position of a Building Associate (ANZSCO 312112). 

9. The applicants appeared before the Tribunal to give evidence and present arguments, assisted by their registered migration agent, who is also a solicitor.  The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. 

10. The issue in the present case is whether the applicant meets 856.213(c), most particularly.  Clause 856.221 requires that, at the time of decision, the appointment in the business of the employer for which the applicant has been nominated has been approved and not withdrawn.  The appointment must continue to satisfy the criteria for approval in regulation 5.19(2) of the regulations and still be available to the applicant. 

11. As this is an oral decision, I have not recorded the verbatim requirements of clause 856.221, but will deal with each requirement in turn.  With regard to whether the appointment has been approved, which is clause 856.221(a), Departmental records indicate that on 15 April 2011, the Department approved the employer nomination lodged by CC Perez and CA Perez trading as United Colours Painting and Decorating, in favour of the first named applicant.

12. Accordingly, based on the evidence before it, the Tribunal finds that the appointment mentioned in clause 856.213(a) has been approved as required by clause 856.221(a).  Therefore, the Tribunal finds that the requirements of clause 856.221(a) are met at the time of decision. 

13. The next criterion is that the appointment has not been withdrawn - that is clause 856.221(b).  There is no evidence before the Tribunal that CC Perez and CA Perez, trading as United Colours Painting and Decorating, has withdrawn the appointment as at the time of the decision in October of 2018.  The Tribunal notes that the owner of CC Perez and CA Perez appeared in the Tribunal, for the purposes of giving evidence and offering support to the visa applicants.  On this basis, the Tribunal finds that the requirements of clause 856.221(b) are met as at time of decision.

14. The next criterion, and the one that the Department based its refusal on, is clause 856.221(c), that is, that the appointment continues to satisfy the criteria for approval.  The concerns that the Delegate had in relation to this criterion are set out in their decision record.  In essence, they were concerned that information that was available to the Department indicated that whilst holding a 457 visa with the same nominator, that the visa applicant may have briefly undertaken a period of self-employment.  Additionally, the Delegate expressed concern that when the nominating employer became aware that there had been a change in the nature of the employment - and I use the word “nature” loosely - that the nominating employer should have, at that point in time, contacted the Department to advise of the change, and did not.

15. I say that I use the term loosely, for the reason that it is very clear, based on the evidence that is in front of the Tribunal, that even if there was a change in the legal nature of the employment between the visa applicant and the nominating employer, that at the time of this decision it is the case that the visa applicant is employed by the nominating employer in what would be considered a traditional employment relationship.

16. It is beyond the scope of the decision presently before the Tribunal to revisit the nature of the employment during the time that the visa applicant held the 457 visa, and the Tribunal notes the submissions that were made on behalf of the applicant by the applicant’s migration agent, that the term “employment” can have an expansive meaning.

17. In addition to these concerns, the Delegate expressed some concern that based on information it had available to it, which included the 2016 partnership tax return, that perhaps the nominating employer was, in fact, operating as a painting business On that basis, as reflected on page 8 of the Delegate’s decision record, the Delegate found that a business which provides painting and decorating services would not require the position of a Building Associate, ANZSCO 312112. 

18. Whilst the Tribunal does not think that revisiting all of the criteria relevant to the nomination is something that it is required to do in these circumstances, the Tribunal has asked the visa applicant to give evidence about the nature of his employment with the nominating employer.  The Tribunal has put to the applicant the Queensland Building and Construction Commission licence history for the nominating company, which is a publicly-available document, and which makes it abundantly clear that, in fact, the nominating employer is operating as a painting and decorating business.  The licence class for which the nominating employer is licensed makes it clear that this is the sort of work that they perform.  That does not mean, in the Tribunal’s view, that the nominating employer could not properly, within its business structure, support the position of a Building Associate. 

19. The Tribunal has had regard to the ANZSCO description for “Building Associate” which indicates that a building associate supervises construction sites, organises and coordinates the material and human resources required.  The description also indicates that registration or licensing may be required.  It is the case that the nominating employer is licenced and there is no indication on its QBCC licence history that there has been any lack of compliance, or any concerns with the scope of work being performed by it, by the state regulator (the QBCC).

20. The visa applicant gave evidence about the sort of tasks that he performs in his role as a Building Associate.  These include using AutoCAD to price and indicate what the scope of work will be for jobs that are being performed by the nominating employer.  In addition to this, he is responsible for making sure that there are adequate resources and staff on site, as well as making sure that there is compliance with occupational health and safety, such as making sure that appropriate scaffolding is available.

21. The Tribunal asked the visa applicant if the scaffolding was arranged as part of the painting contract. The applicant advised that that is supplied and paid for as part of the scope of works that is performed by the nominating employer.  Additionally, the visa applicant gave evidence that part of the supervision that is required by him in his role, is performed on site, in the context of working within a building site. 

22. The submissions from the applicant’s representative point out that painters and decorators work within building sites, as explained by the Master Builders Association.  The visa applicant has explained that some of the work that the nominating employer is contracted for, which he provides quotations for, does involve a building company that has a specific site supervisor engaged as part of its building contract.

23. In these circumstances, there is a slightly different type of supervisory work that is performed by him in his role.  With respect to other contractual work that is performed by the nominating employer, sometimes the nominating employer is directly engaged by a smaller business or a homeowner that does not have a site supervisor, and in those circumstances, the applicant, in his role, would be entirely responsible for supervision of the construction site.

24. The Tribunal considers that the Delegate took too narrow a view of what could properly be encompassed within the needs of a painting company such as the nominating employer and considers that the role that the visa applicant is performing is one that would be potentially required by the company.  That is beyond the scope of what this Tribunal has to decide, however. 

25. The Tribunal notes that there is no information before the Tribunal indicating that there has been any action taken by the Department in response to its concerns in relation to the nominating employer.

26. There is no information indicating that there has been any notice issued to the nominating employer indicating that the Department had concerns of the sort that they have set out in their decision record.  The Tribunal thinks that this is concerning, for the reason that if there was in fact a breach of immigration law in the nominating employer’s role as a standard business sponsor, the nominating employer has never had the opportunity to properly respond to that allegation.  Regardless, the fact remains that as at time of decision, there is no information before the Tribunal indicating that there are any concerns relating to breaches of immigration law that have been substantiated in any way, and on that basis, the Tribunal considers that the requirements that are contained in paragraph 856.221(c) are met.

27. The Tribunal notes that there have been several decisions of the Tribunal, as well as the decision of the Federal Circuit Court of Australia in Huang v Minister for Immigration and Border Protection [2014] FCCA 1581 that have considered the requirements of paragraph 856.221(c). In that line of authority, it has generally been the case that the reason that the criterion has not been met is that the relevant nominating employer has been the subject of, for example, a sponsorship bar, or is presently being investigated for lack of compliance with its immigration obligations.

28. The information before the Tribunal does not substantiate any similar concerns with respect to the nominating employer in this case.  The Tribunal notes that the Delegate has had regard to the Procedures Advice Manual, the PAM3, and the Tribunal notes that whilst it may be guided by policy, it is not bound to follow it.  In circumstances where there is no record of there being any action taken of any sort of adverse nature against the nominating employer, or even the issuance of a notice warning the nominating employer of the Department’s concerns, the Tribunal considers that the appropriate course of action is for the Tribunal to find that the criterion has been satisfied. 

29. With respect to paragraph 856.221(d), it is clear based on the evidence in front of the Tribunal that the appointment is still available to the applicant.  Given these findings, the appropriate course is to remit the application for the visas, for the Department to consider the remaining criteria for a subclass 856 visa.  If the primary applicant is found to meet the remaining criteria, then he is entitled to the grant of the subclass 856 visa.  Similarly, if the second, third and fourth applicants meet the remaining criteria, they would be entitled as well.

    DECISION

30. The Tribunal remits the decisions under review for reconsideration, with the directions that the applicants meet the following criteria for Employer Nomination (Residence) (Class BW) Subclass 856 visas:

    ·The first named applicant meets cl.856.221 of Schedule 2 to the Regulations; and

    ·The second, third, and fourth named applicants meet cl.856.312 of Schedule 2 to the Regulations.

    Bridget Cullen
    Member