1407890 (Migration)

1407890 (Migration) [2016] AATA 4871 (8 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Diaa Alyas
Mrs Shaimaa Basel Josef
Mr Steven Diaa Amma-Noil
Miss Sandra Diaa Amma-Noil
Miss Sally Diaa Amma-Noil
Miss Stine Diaa Alyas
Mr Simon Diaa Alyas
CASE NUMBER:  1407890
DIBP REFERENCE(S):  BCC2013/1533217 OSF2007/013770 OSF2011/002526 OSF2012/003993
MEMBER:Rania Skaros
DATE:8 April 2016
PLACE OF DECISION:  Sydney
DECISION:  Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 08 April 2016 at 9:21am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Intention to perform nominated occupation – Skill requirement for nominated profession – Witness credibility - Adverse migration history – Information submitted conflicts with information in previous visa applications
LEGISLATION
Migration Act 1958, ss 65, 359A
Migration Regulations 1994, Schedule 2, cl 457.223(4)(da)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicants applied for the visa on 25 September 2013.
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.
The delegate refused to grant the visas on 11 April 2014 on the basis that cl.457.223(4)(d) was not met because the delegate was not satisfied that the applicant’s intention to perform the occupation is genuine.
The applicants appeared before the Tribunal on 26 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case turned on whether the primary visa applicant meets the requirements of cl.457.223(4)(da).
Evidence before the Tribunal
At the time of application the applicant was nominated by Prestige Bricks and Pavers in the occupation of Quality Assurance Manager. The applicant provided a number of documents with the application, relevantly including, employment references and his resume. The applicant indicated that he was employed as a Quality Control Manager from February 2001 to January 2009 and as a Painter/Supervisor from January 2010 to January 2013.
The Department’s overseas post had difficulty verifying the applicant’s employment as a Quality Control Manager as there was no one in the business that could speak with the officer in English. The post however advised that the business is a small vehicle repair shop in a residential area and queried whether such a business would require a Quality Assurance Manager. The post was also concerned that the letter was written in English but that no one in the business could communicate in English.
The delegate in this case was not satisfied that the applicant’s intention to perform the occupation is genuine. The decision record, a copy of which was provided to the Tribunal, detailed the applicant’s immigration history and previous unsuccessful applications for family visas. The delegate was concerned about the discrepancies in dates relating to the applicant’s employment history and the overseas post’s inability to verify the employment claims. On the basis of these concerns, the delegate formed the view that the applicant had an intention to remain permanently in Australia and was not satisfied that the applicant intention is to perform the nominated occupation.
On review, the Tribunal was advised that the company that had agreed to sponsor the applicant had gone into bankruptcy and that the applicant was seeking to obtain a new nomination from the company that took over the work of the original sponsor.
At the hearing the Tribunal discussed with the applicant the requirement that he must be the subject of a current approved nomination. The Tribunal also expressed its concern that was unable to assess other requirements for the visa, such as his skills, employment background and genuineness of the position until a nomination of an occupation in relation to him was approved.
On 15 December 2015 the Tribunal received evidence of an approved nomination by JD Concrete Pty Ltd in respect of the applicant issued by the Department on 15 December 2015 for the occupation Quality Assurance Manager (139914).
It is against the occupation of Quality Assurance Manager (139914) that the Tribunal assesses the applicant’s skills, qualifications and employment background.
Skills, qualification and employment background of the applicant
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, which in this case is Quality Assurance Manager.
The Tribunal has had regard to the ANZSCO which provides some guidance on the skills required and tasks associated with this occupation. It provides:
139914 QUALITY ASSURANCE MANAGER

Alternative Title:
Quality Facilitator

Plans, organises, directs, controls and coordinates the deployment of quality systems and certification processes within an organisation.
The occupation is a skill level 1 and forms part of the major group of Managers who normally hold at least a bachelor degree qualification or the equivalent of at least five years relevant experience.
As detailed above, the decision record indicates that there were discrepancies before the delegate in relation of the applicant’s claimed employment experience.
During the course of the review, the Tribunal had access to the applicant’s previous applications for visas, in which information was provided regarding his employment background, which were not consistent with the claims made in the application before the Tribunal. Accordingly, the Tribunal wrote to the applicant, pursuant to s.359A of the Act, inviting the applicant to comment on the adverse information, which is set out below, which, the Tribunal explained was inconsistent with other evidence before the Tribunal and if relied upon, may lead the Tribunal not to be satisfied that the applicant has the skills, qualifications and experience considered necessary to perform the tasks of the nominated occupation.
The particulars of the information, as set out in the invitation to comment, is as follows:
·You applied for a Remaining Relative visa, Subclass 115, on 23 May 2007. As part of that application you provided a completed and signed Form 80 dated 4 April 2008. On that form you indicated that you worked as a Cars Painter. You also provided a Form 1221 signed and dated 4 April 2008 and indicated on that form that you worked as a Cars Painter/Painting for Tager from 2001 to 2008 (up to the date of application).
·You applied for a Carer visa, Subclass 116, on 12 December 2011. As part of that application you provided a completed and signed Form 1221 dated 19 December 2012. On that form you indicated that you worked as a Car Painter for Bang and Olufsen Denmark from 2001 to current. You also provided a Personal Background form signed and dated 25 November 2012 and indicated on that form that you worked as a Car Painter for Stuer Auto Lakerer, Struer Denmark from 2002 to 2009.
The comments were due to be provided in writing by 24 March 2016, however, not comments were received by the due date and the applicant did not seek an extension of time. On 29 March 2016, on instructions from the member, an officer of the Tribunal contacted the authorised representative, who was not available, and left a message for the representative to contact the Tribunal regarding the information that was due on 24 March 2016. On the same day the Tribunal received an email from the representative advising that the applicant did not wish to make any comments and wanted the Tribunal to proceed to a decision on the information before it. As the applicants have not provided the comments by the due date, they lost their right to a further hearing in relation to the requirements in cl.457.223(4)(da). In the circumstances, the Tribunal will proceed to a decision on the evidence before it.
The Tribunal is not satisfied, for the reasons that follow, that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Quality Assurance Manager.
The Tribunal gives weight to the information in the ANZSCO, as detailed above, regarding the skill level and tasks of the occupation. There is no evidence before the Tribunal to indicate that the applicant has the formal qualifications as set out in the ANZSCO, which is at least a bachelor degree.
The ANZSCO provides that at least five years of relevant experience may substitute for the formal qualifications. Although the applicant claimed in the visa application that he was employed as a Quality Control Manager with Byen Karosseri Vaeksted from 1 February 2001 to 1 January 2009, other information before the Tribunal indicates that he worked as a car painter during that period. The inconsistent information, in addition to the concerns raised in the delegate’s decision, cast doubt in the Tribunal’s mind about the applicant’s claim of employment as a Quality Assurance Manager.
The applicant was invited to comment on the inconsistent information regarding his claimed employment experience but he indicated that he did not wish to comment. In the absence of a satisfactory explanation regarding the inconsistences in the evidence, the Tribunal is unable to be satisfied that the applicant has at least five years of relevant experience.
Given the above, the Tribunal is not satisfied that the applicant has the skills, qualifications and employment background it considers necessary to perform the tasks of the occupation of Quality Assurance Manager.
Given the above findings, the applicant does not meet cl.457.223(4)(da).
There is no evidence before the Tribunal to indicate that any of the secondary applicants meet the primary criteria for the grant of the visa. Consequently, the Tribunal affirms the decision in respect of the secondary applicants.
For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Rania Skaros
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
(ea)if:
(i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)     subclause (6) does not apply to the applicant; and
(iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;
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.

[2016] AATA 4871

8 April 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice