WESTALL (Migration)

[2017] AATA 966

WESTALL (Migration) [2017] AATA 966 (5 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bradley James WESTALL
Miss Karen Joanne ALDRED

CASE NUMBER:  1516163

DIBP REFERENCE(S):  BCC2015/2707360

MEMBER:Denise Connolly

DATE:5 June 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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; and

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

Statement made on 05 June 2017 at 2:36pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills assessment – Project Administrator – Successfully performing role since November 2015 –  VETASSESS skills assessment not required – Academic qualification – Undertakes tasks in ANZSCO description for occupation

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, Part 457, 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 Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2.     The visa applicants applied for the visa on 16 September 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 visas on 12 November 2015 on the basis that cl.457.223(4)(e) was not met because the first named applicant (the applicant) did not provide a VETASSESS skills assessment demonstrating his skills are suitable for the nominated occupation Program or Project Administrator, as specified by the delegate.

5.     The applicant appeared before the Tribunal on 12 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer and sponsor, Mr Stuart White, Managing Director, Total Access Solutions Pty Ltd.

6.     The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Skills, qualification and employment background of the applicant

8. 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 Program or Project Administrator.

9.     The applicant has provided a curriculum vitae in which he sets out his employment history as follows: from November 2015 to present he has worked as a Project Administrator for Total Access Solutions, his current sponsor and employer. From May 2014 to November 2014 he worked as a Project Administrator for Stronghold Scaffolding. He also worked as a scaffolding labourer in the period November 2013 to February 2014, as project supervisor from March 2011 to September 2013 for Connect Scaffolding, and as a Trainee Project Supervisor from October 2008 to March 2011 for MKG Body Repair Centre. He completed his Diploma in Project Management in 2015.

10.      The applicant’s representative provided written submissions in which he submits that the applicant has 3 years’ relevant employment and over 3 years’ highly relevant work experience in the nominated occupation Project Administrator. He asserts that the work undertaken for MKG Repair Centre involved coordination and support in the completion of the company’s repair projects. He asserts that while the delegate specified that the applicant should provide a skills assessment, the policy indicates that officers should have regard to all of the information provided by the applicant in the visa application in relation to their abilities, including formal qualifications, training, experience, special skills and other personal attributes. He sets out the definition for the occupation in ANZSCO and asserts that the applicant has the skills and qualifications to perform his duties as per the ANZSCO description.

11.      The applicant provided a work reference from Total Access Solutions dated 17 September 2015 describing the requirements for the position and listing some of their new projects as follows: Sydney Catholic University; MPA Projects; Westfield Miranda; St George Private Hospital. The employer explained that some of the projects have spanned over several months creating a steady income for the business and the applicant is relied upon as solely responsible for managing each project. He coordinates contracts and variations, overseeing the smooth running of all facets of the job, and liaises effectively with senior management.   The company has decided to sponsor the applicant to assist in its expansion due to ongoing and new projects, and his proven performance. The employer explained that the applicant is trusted to ensure that the business’ dealings run smoothly and efficiently. His hands-on experience along with several years of background knowledge provide him with the relevant experience to make variations and adaptations, and solve problems while managing projects and meeting the business’ goals. The applicant also provided evidence that he completed a Diploma of Project Management in April 2015.

12. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that on 2 October 2015 the applicant was requested to provide evidence of the commencement or completion of a VETASSESS skills assessment. On 30 October 2015 the applicant provided an assessment from VETASSESS which stated that the applicant did not meet the assessment criteria for Program or Project Administrator. The applicant had provided a letter from VETASSESS confirming that he did not meet the requirements for the nominated occupation. The delegate concluded the applicant did not meet a cl.457.223(4)(e).

13.      Prior to the hearing the applicant provided to the Tribunal further documents including a VETASSESS Skilled Migration assessment dated 26 May 2015 indicating that the applicant’s employment with Connect Scaffolding, Stronghold Scaffolding and Total Access Solutions up to February 2015 did not follow a qualification at the required level and therefore did not meet the minimum requirements for the occupation. The skills assessment outcome was negative.

14.      The letter from VETASSESS dated 8 September 2015 confirms that the applicant has a Diploma of Project Management completed in 2015 at Asset Training Australia. VETASSESS considered this to meet the minimal educational requirement for the nominated occupation. However, having considered the applicant’s employment as a trainee project supervisor at MKG Body Repair Centre, a project supervisor with Connect Scaffolding, a project administrator with Stronghold Scaffolding and a project administrator with Total Access Solutions VETASSESS was not satisfied that the type of work undertaken as MKG Body Repair Centre involved special or support projects but rather work undertaken on an ongoing and operational basis. VETASSESS considered that his other employment appears to have included some relevant tasks but the duration of employment added up to only 3.4 years which was not sufficient for considering prequalification employment. Therefore VETASSESS concluded that he did not meet the skills assessment criteria for the occupation.

15.      The applicant provided evidence that he made another application for a Skilled Migration Assessment and on 13 October 2016 VETASSESS concluded that the outcome was negative, finding that his employment either did not follow a qualification at the required level, or the tasks undertaken are not highly relevant to the ANZSCO tasks for the nominated occupation. The assessor noted that, according to ANZSCO, a Project or Program Administrator plans and undertakes administration of organisational programs, special projects and support services. Based on the documents provided the assessor concluded that the applicant’s employment with different scaffolding companies do not appear to be highly relevant. These positions appear to be primarily focused on overseeing operational and administrative activities of an organisation, not the planning and administering of special projects.

16.      The applicant provided a work reference from Stronghold Scaffolding indicating that he had worked there as a Project Administrator from May 2014 to November 2014 and May 2015 to July 2015. His work involved planning and administrating special projects. He organised the projects and associated support services. He was directly involved in overseeing staff for these projects. He was required to meet time deadlines, identify requirements, and he had direct meetings with relevant planning and controlling professionals to understand the requirements of architects, quantity surveyors, engineers and building contractors. He produced daily reports for management and more detailed weekly reports. He resolved issues, complaints and questions arising during projects. He advised management of issues and gave recommendations. He updated senior management on the daily operations. He prevented minor disputes from escalating by dealing with the parties in resolving problems. He arranged temporary on-site accommodation, maintained risk analysis of the project and advised management on difficulties which might extend  the length of the project and costs.

17.      The applicant provided a statement from Connect Scaffolding regarding his employment with that business where worked as a project supervisor. He provided references from other businesses which had worked with the applicant in his employment as the Project Administrator at Total Access Solutions including from Magdatex and FDC Construction & Fitout.

18.      Total Access Solutions has provided a very detailed supplementary work reference for the applicant dated 5 December 2016 setting out in detail his involvement in various projects. The business has provided a description of the applicant’s duties as they relate to the tasks described in the relevant ANZSCO occupation description. The description indicates that the applicant is involved in the development, review and negotiation of variations to contracts, programs, projects and services. He responds to inquiries and resolves problems concerning contracts, programs, projects, services provided. He manages paperwork associated with contracts, programs, projects and services provided. He works with project managers, engineers, architects, trade and other employees to achieve the business’ goals. He advises senior management on matters requiring attention and he implements the decision. He oversees work by contractors and reports on variations to work orders. He prepares and reviews submissions and reports concerning the organisation’s activities.

19.      The applicant has provided various samples of reports he has produced and templates he completes in the course of his work with his employer. He has provided copies of contracts for various projects and numerous examples of written exchanges he has had with several of the businesses clients. There are also numerous photographs showing various projects some of which appear to involve large-scale scaffolding.

20.      The applicant also provided evidence that he has been employed and receiving wages from Total Access Solutions. He has provided a copy of the organisational chart showing his position in relation to other positions in the business, and it appears to be at a management level.

21.      The applicant has provided a copy of the notice of nomination approval dated 7 April 2017 for the associated position indicating that the applicant is the nominee for the Program or Project Administrator position in the business of his sponsor, Total Access Solutions.

22.      At the hearing the Tribunal discussed with the applicant his skills, qualifications and employment background and the issue of whether it would require him to provide a skills assessment from VETASSESS.

23.      The applicant explained that he looks after each project for the sponsor who has now had the nomination for the position, of which the applicant is the subject, approved by the Department. The applicant makes sure that the projects meet the company’s expectations and targets, timeframes, OHS and customer satisfaction are achieved. His tasks also include producing graphs, tables to showed job costs versus wages, estimates of timeframes and other project management duties. He collects data and puts it together to advise senior management about various aspects of the projects.

24.      The applicant described his involvement with customers. He meets clients on site with estimators and they walk through with the client the specifications for the job. The estimated produces the quote and negotiates with the client. The applicant puts together the contract and organises the safe working method statement. He insures the client has all the proper paperwork and negotiates any variations during the project. He liaises between clients and the estimators to amend contracts. If there is an issue he talks to scaffolders on-site and also talks to estimators. He may then need to meet with senior management. The applicant is considered part of the management team and the business. He manages about 25 to 30 projects at any one time. He described the size and nature of some of the current projects.

25.      The Tribunal asked the applicant about a typical day in the position. He indicated that generally in the morning he meets with new clients and the estimator and they go through specifications for potential new jobs. He also visits existing sites to ensure that timeframes and OHS requirements are being met. He also considers whether a project requires more or less staff. When he goes back to the office he deals with variations on existing contracts. He talks to new prospective clients. He works closely with the estimator, and engineers submitting draft plants, government bodies involving such issues as road closures, traffic control and pedestrian management. He makes recommendations regarding management of various projects and the senior management make the final decision.

26.      The applicant has been working in this position for about 2½ years in total. Initially he undertook the work as the holder of a Subclass 417 visa however he was only allowed to work for the business for 6 months. He then returned to the business and has been working consistently for the business in the role since November 2015.

27.      The Tribunal took evidence from the applicant’s employer, Mr White. He confirmed that the nomination application of which the applicant is the subject, for the position Program or Project Administrator was approved on 7 April 2017.

28.      Mr White asserted that the applicant is highly capable of performing the duties of the nominated occupation. He submitted that the applicant’s skills strengthen the team. He has introduced new systems and new ideas, such as how to track different projects, to the business which has been an asset. His business has between 25 and 35 projects running at any one time. Each of the projects is of a different size and nature and so they throw up different issues and problems. About a third of the jobs involve particular engineering which require increased planning, administration and coordination.

Assessment of the evidence

29.      The Tribunal has taken into account all of the evidence before it. This includes the ANZSCO definition for the nominated skilled occupation, Program or Project Administrator, which states as follows:

UNIT GROUP 5111 CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS

CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS plan and undertake administration of contracts, organisational programs, special projects and support services.

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 Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

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:

odeveloping, reviewing and negotiating variations to contracts, programs, projects and services

oresponding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected

omanaging paperwork associated with contracts, programs, projects and services provided

oworking with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met

oadvising senior management on matters requiring attention and implementing their decisions

ooverseeing work by contractors and reporting on variations to work orders

opreparing and reviewing submissions and reports concerning the organisation's activities

ocollecting and analysing data associated with projects undertaken, and reporting on project outcomes

oreviewing and arranging new office accommodation

Occupations:

511111 Contract Administrator
511112 Program or Project Administrator

…

511112 PROGRAM OR PROJECT ADMINISTRATOR

Alternative Title:

Project Coordinator

Plans and undertakes administration of organisational programs, special projects and support services.

Skill Level: 2

30.      The Tribunal has first considered whether the applicant has the skills, qualifications and employment background necessary to perform the duties of the occupation. It accepts that the applicant has completed a Diploma in Project Management in 2015. This is at the appropriate skill level for the occupation, according to ANZSCO’s indicative skill level.

31.      The Tribunal has considered the applicant’s skills and in doing so gives significant weight to the evidence of Mr White, his current employer and sponsor. On the basis of the evidence before it the Tribunal is satisfied that each contract of work is considered and treated as a project and the applicant manages each of those work commitments for the business. The Tribunal is satisfied on the basis of the written and oral evidence that the applicant has skills in developing, reviewing and negotiating variations to the contracts and project briefs. It is satisfied he deals with inquiries and resolves problems regarding issues arising during the course of each project. The Tribunal has seen reports and templates, email exchanges between the applicant and Total Access Solution’s clients. It is satisfied he manages some of the paperwork for each contract. Having regard to the email exchanges, letters of support from various customers and the oral evidence the Tribunal is satisfied the applicant works with other professionals such as architects and engineers. It accepts that he advises Mr White on issues arising. It accepts that he oversees work carried out by scaffolders to ensure the contract’s terms and OH&S requirements are being met. Having regard to samples of various working documents, it accepts the applicant prepares and reviews reports, and collects data relevant to the work being undertaken. The applicant has also provided work references confirming he has the skills to perform the above tasks. Having regard to all of the duties which the applicant has performed, from November 2014 to May 2015, and since November 2015 to date, the Tribunal is satisfied the applicant has the relevant skills to perform the duties of a Program or Project Administrator.

32.      The applicant has been working for the sponsor in the nominated occupation from November 2014 to May 2015, and since November 2015 to date. The Department has now approved the nomination application for the position, Program or Project Administrator, in which the applicant is employed. The Tribunal is satisfied on this basis that the applicant has the relevant employment background to perform the position’s duties.

33. Overall the Tribunal is satisfied the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. He therefore satisfies cl.457.223(4)(da).

34. The Tribunal has considered the delegate’s requirement that the applicant demonstrate he has the skills that are necessary to perform the occupation by specifying that the applicant provide a skills assessment from VETASSESS. The applicant has twice attempted to obtain a skills assessment but in the first instance the outcome was negative because VETASSESS formed the view his relevant work experience was achieved before he was awarded his Diploma and therefore did not meet the requirements. His second skills assessment application was unsuccessful because the decision maker did not consider his employment to be relevant to the nominated occupation. The Tribunal notes however that the Department has approved the nomination for the position and has formed the view that it can rely on the Department’s assessment of the position as genuinely being that of a Program or Project Administrator. The Tribunal notes the applicant has been successfully performing this role since November 2015. It gives this factor significant weight. For these reasons, having taken into account its assessment of his skills, qualifications and employment background the Tribunal does not consider it necessary to specify the manner in the same way as the delegate. The Tribunal does not consider it is necessary for the applicant to demonstrate that he has the skills to perform the occupation by providing a VETASSESS skills assessment. It is satisfied he has the skills necessary because he has demonstrated he undertakes a number of the tasks in the ANZSCO description for the occupation, for which he is academically qualified. Accordingly the Tribunal is satisfied that the requirements of cl.457.223(4)(e) are met.

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

36.      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

37.      The Tribunal remits the applications 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

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

Denise Connolly
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.