1413216 (Migration) [2015] AATA 3364 (27 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Miss Michaela King
CASE NUMBER: 1413216
DIBP REFERENCE(S): BCC2014/1052870
MEMBER:Karen Synon
DATE:27 August 2015
PLACE OF DECISION: Melbourne
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 27 August 2015 at 12:17pm
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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 24 April 2014.
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 visa on 15 July 2014 on the basis that cl.457.223(4)(da) was not met because she was not satisfied the applicant had the skills, qualifications and employment background necessary for the nominated position.
An application for review of the primary decision was lodged on 30 July 2014. A copy of the department’s decision was provided to the Tribunal.
The applicant was represented in relation to the review by her registered migration agent.
On 21 May 2015 the Tribunal wrote to the applicant, via her authorised representative, in accordance with the provisions of s.359(2) of the Migration Act. The applicant was invited to provide the following information in writing by 15 June 2015:
Additional information concerning your qualifications and/or your employment experience indicating that you possess the skills necessary to perform the nominated occupation of ‘Construction Project Manager’
On 21 May 2015 the Tribunal received advice that the applicant is subject to a new nomination approved by the department on 21 April 2015. On 9 June 2015 the applicant appointed a new authorised representative and registered migration agent. He requested additional time in which to respond to the Tribunal’s s.359A letter. This was granted until 29 June 2015.
On 29 June 2015 a submission was received in response to the Tribunal’s letter making the following relevant points:
·The applicant’s bachelor’s degree in Economics with Accountancy Studies is particularly relevant to four of…
Details
AGLC
1413216 (Migration) [2015] AATA 3364
Case
[2015] AATA 3364
Decision Date
CaseChat Overview and Summary
The Tribunal was tasked with deciding whether the primary visa applicant met the requirements of cl.457.223(4)(da) of the Migration Regulations, specifically regarding the skills, qualifications, and employment background necessary to perform the tasks of the nominated occupation of ‘Construction Project Manager’. The Tribunal had to assess whether the applicant's experience and qualifications aligned with the standards set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO). ANZSCO was used as a reference to understand the skill level and tasks associated with the occupation, but the Tribunal noted that ANZSCO is not binding and does not provide a comprehensive analysis of the role.
The Tribunal determined that the assessment of the applicant's qualifications and experience required more than a strict comparison with the ANZSCO definition. Instead, it was necessary to ascertain the applicant's attributes and skills and how these are applied in the workplace for remuneration, as per the approach outlined in Joshi v MIMIA. The Tribunal found that the delegate's assessment did not sufficiently consider the applicant's skills and experience in relation to the specific tasks of a Construction Project Manager. Consequently, the Tribunal concluded that the application should be remitted for reconsideration by the Minister to properly assess the remaining criteria for a Subclass 457 visa.
The Tribunal remitted the application for a Temporary Business Entry (Class UC) visa to the Minister for reconsideration, directing that the Minister consider whether the visa applicant meets the criteria under cl.457.223(4)(da) of the Regulations. This includes ensuring that the applicant has the necessary skills, qualifications, and employment background to perform the tasks of a Construction Project Manager. The Tribunal emphasized that the Minister should undertake a thorough assessment of the applicant's qualifications and experience, taking into account the specific requirements of the nominated occupation as outlined in ANZSCO and the broader responsibilities of the role.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da). 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 this case the nominated occupation is ‘Construction Project Manager’. In the present case, the delegate assessed the applicant’s relevant qualifications and experience with that specified for the occupation of Construction Project Manager in the Australian and New Zealand Standard Classification of Occupations (ANZSCO). ANZSCO is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Construction Project Manager’. However the Tribunal has referred to ANZSCO to inform its consideration of whether the applicant has the skills necessary to perform the nominated occupation. In considering the ANZSCO definition and tasks for the occupation of ‘Construction Project Manager’ (Code 133111), which is part of the Unit Group 1331 Construction Managers, it records the indicative skill level in Australia as:Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1)Construction Managers “plan, organise, direct, control and coordinate the construction of civil engineering projects, buildings and dwellings, and the physical and human resources involved in building and construction”. The tasks of the occupations within this Unit Group are listed in ANZSCO as including:·interpreting architectural drawings and specifications ·coordinating labour resources, and procurement and delivery of materials, plant and equipment ·consulting with Architects, Engineering Professionals and other professionals, and Technical and Trades Workers ·negotiating with building owners, property developers and subcontractors involved in the construction process to ensure projects are completed on time and within budget ·preparing tenders and contract bids ·operating and implementing coordinated work programs for sites ·ensuring adherence to building legislation and standards of performance, quality, cost and safety ·arranging submission of plans to local authorities ·building under contract, or subcontracting specialised building services ·overseeing the standard and progress of subcontractors' work ·arranging building inspections by local authorities 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).
Decision
Reasons for decision
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.DECISION31.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.Karen SynonMemberATTACHMENT - 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.