1413927 (Migration)

[2015] AATA 3831

1413927 (Migration) [2015] AATA 3831 (11 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurvinder Singh

CASE NUMBER:  1413927

DIBP REFERENCE(S):  BCC2014/754245

MEMBER:Don Lucas

DATE:11 December 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; and

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

Statement made on 11 December 2015 at 12:06pm

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 15 March 2014.

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 visa on 25 July 2014 on the basis that cl.457.223(4)(da) was not met because based upon the evidence submitted by the applicant of the delegate was not satisfied that the applicant had the skills, qualifications and employment background necessary to successfully perform the tasks of the nominated occupation of Cook, ANZSCO[1] 351411.

   [1] The Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary

5. The applicant appeared before the Tribunal on 28 August 2015 to give evidence and present arguments.  

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).

   Skills, qualification and employment background of the applicant

9. 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 Cook.

10. ANZSCO specifies the the following in relation to the skilled entry level for the occupation of Cook:

    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 Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)…

    
    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.

11. The evidence before the delegate consisted of a Certificate III in Commercial Cookery from Metro College of Technology in Queensland which indicated that all subjects were credit transfers and that a Certificate IV in Hospitality (Commercial Cookery) from the same institution further stated that all subjects (except First Aid) were credit transfers. Furthermore, the resume provided by the applicant did not specify any previous employment details.

12. In the absence of any refereed employment history, the delegate determined that the applicant had not demonstrated the requisite skill level either by reference to formal qualification or by reference to equivalent work experience as a Cook.

13. The applicant has provided additional documents to the Tribunal, the significance of which the applicant explained to the Tribunal at the hearing. These consisted of interim academic transcripts from Holmes Institute concerning a Diploma of Hospitality Management (Commercial Cookery) which the applicant commenced in 2008. The applicant did not complete this qualification at Holmes Institute, but it was on the basis of the applicant’s completed units in this diploma in a field relevant to the occupation of Cook which formed the basis of the applicant’s credit transfers in the certificate III and certificate IV qualification completed at Metro College of technology. It is evident to the Tribunal that a substantial number of completed units in the applicant’s Diploma of Hospitality Management (Commercial Cookery) contain practical components directly relevant to the skills required in the occupation of Cook.

14. Accordingly, when viewed holistically, the Tribunal considers that the applicant has demonstrated he possesses the requisite formal qualification which alone under ANZSCO meets the minimum skill level entry level for the occupation of Cook.

15. Accordingly, the Tribunal finds that the applicant possesses the skills, qualifications and employment background necessary for the occupation of Cook and accordingly finds that the applicant meets cl.457.223(4)(da).

16. In the primary application, on 16 April 2014 the applicant was requested to demonstrate he possessed the skills publication and employment background necessary to perform the tasks in the nominated occupation. Having viewed the detailed letter of request sent by the Department, seeking evidence of the applicant skills by reference to either formal qualification or equivalent employment experience or a combination of both, having regard to the further documentation provided to the Tribunal the Tribunal is satisfied that the applicant has demonstrated he possesses the relevant skills in the manner originally specified by the delegate. For these reasons, the Tribunal further finds that the applicant meets cl.457.223(4)(e).

17. Accordingly, the Tribunal finds that the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).

    Related nomination

18. At the hearing, the Tribunal identified to the applicant that the original nomination made by T and A Khan Group Pty Ltd relating to him was approved on 16 June 2014 and pursuant to the operation of r.2.75 that nomination had since expired on 16 June 2015.

19. The applicant has subsequently provided evidence that on 29 October 2015 a nomination application was again made to the Department by T and A Khan Group Pty Ltd. The current information before the Tribunal indicates that this nomination has not yet been finalised, with records indicating that an approval of the entity’s application for standard business sponsorship remains pending to the present date.

20. The Tribunal accordingly proposes to make no findings in relation to the nomination criteria in cl.457.223(4)(a), and this will be a matter for the Department to consider upon remittal.

    CONCLUSIONS

21. 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

22. 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; and

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

    Don Lucas
    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.