1414061 (Migration)

1414061 (Migration) [2015] AATA 3183 (29 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Khawaja Farhan Bashir
CASE NUMBER:  1414061
DIBP REFERENCE(S):  BCC2013/1955078
MEMBER:Denise Connolly
DATE:29 July 2015
PLACE OF DECISION:  Sydney
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)(a) and cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 29 July 2015 at 4:19pm

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 27 November 2013 on the basis that he had been nominated for the occupation Graphic Designer (ANZSCO 232411) by his sponsor, Grafix Pty Ltd.
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 1 August 2014 on the basis that cl.457.223(4)(da) was not met because the applicant had not demonstrated that he had the skills, qualifications and employment background to perform the tasks of the nominated occupation.
The applicant appeared before the Tribunal on 12 May 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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 applicant meets the requirements of cl.457.223(4)(a) and cl.457.223(4)(da).
The nominated occupation in this case, at the time of application, was Graphic Designer. The applicant was sponsored by Grafix Pty Ltd. A nomination of which the applicant was the subject had been approved on 3 December 2013.
When making the visa application the applicant claimed he has a Diploma of Printing and Graphic Arts (Printing) and a Certificate III in Printing and Graphic Arts (Graphic Pre-press) from the Australian Institute of Commerce and Language and he provided documents from AICL. He claimed he worked as a Graphic Designer for Systronic IT Group (Australia) from January 2010 to October 2010, and as a Junior Graphic Designer for U-Need Printing Services (Pakistan) from February 2004 to April 2009. He claimed he was working as a freelance Graphic Designer in Australia since October 2010.
The applicant provided a letter from Systronic stating he had worked voluntarily as an internee graphic designer in the period January 2010 to October 2010.
The applicant also provided a letter dated 2 September 2013 from U-Need Printing Services claiming he had work there from February 2004 to April 2009, commencing as a Junior Graphic Designer and that his last job title was Senior Graphic Designer.
The delegate’s decision record, provided to the Tribunal by the applicant, indicates that the employment reference from U-Need Printing Services was submitted to the Department’s Islamabad post for verification. On 24 February 2014 the post advised the delegate that the employment reference raised concerns because the landline and mobile contact numbers listed were not contactable. The applicant was given an opportunity to comment on this information. He replied and provided different telephone numbers. He said the landline was unanswered because of roadworks in the area which disrupted services. He recommended the Department contact the Managing Director of U-Need Printing Services using his direct mobile number which has changed since the employment reference was issued. The delegate noted that the applicant had provided 3 different mobile numbers for the referee.
The delegate also noted the applicant had completed only a Diploma, awarded in 2011 and was granted a Subclass 485 visa on the basis his having the skills to perform the skilled occupation of Graphic Pre-press Trades Worker, a lower skill level occupation. The delegate accepted the applicant may have worked at U-Need Printing Services but she was not satisfied he had five years’ work experience as a Graphic Designer. She noted that the employment reference issued in October 2010 from Systronic IT Group indicates the applicant completed 915 hours during his tenure with the business. She noted he then acquired his Diploma after his work with that company. She noted he claims to have worked as a freelancer since October 2010 but formed the view this work was at the skill level of a Graphic Pre-press Trades Worker. She took into account the duties of a Graphic Designer as described in ANZSCO. She was not satisfied he had demonstrated he has the skills, qualifications and employment background to perform the duties of a Graphic Designer.
On 6 March 2015 the Tribunal invited the applicant to a hearing on 12 May 2015. He was asked to provide information confirming he is the subject of an approved business nomination that has not ceased as required by cl.457.223(4)(a). He was also asked to provide current evidence to confirm that he is employed by Grafix Pty Ltd and details of that employment and the business. He was asked to provide additional documents or information in support of the claim that he has the skills, qualifications and employment background necessary to perform the duties of a Graphic Designer.
On 6 May 2015 the representative wrote to the Tribunal and advised that a new nomination application had been lodged by another sponsor Knight Merchants Pty Ltd. He provided an employment agreement with the new sponsor indicating the applicant commenced employment as a Graphic Pre-press Trades Worker in May 2015. He provided a copy of an acknowledgement of the lodgement by the sponsor, dated 6 May 2015. He asked if the applicant was required to attend the hearing. On 7 May 2015 a case officer telephoned the representative and informed him that the applicant was required to attend the hearing on 12 May 2015.
At the hearing the Tribunal explained that it needed to be satisfied the applicant meets cl.457.223(4)(a) and cl.457.223(4)(da). The applicant indicated that his new sponsor, Knight Merchants Pty Ltd, had made a nomination application of which he is the subject in the nominated occupation of Graphic Pre-press Trades Worker (ANZSCO 392211). The applicant indicated he has the relevant skills, qualifications and employment background as he holds a relevant Diploma and has been employed in the industry. The Tribunal agreed to wait for the Department’s decision with respect to the new sponsor’s nomination application.
On 28 July 2015 the applicant provided to the Tribunal evidence that a nomination application made by Knight Merchants Pty Ltd in the occupation Graphic Pre-press Trades Worker (392211), of which the applicant is the nominee, has been approved by the Department.
Requirement for an approved nomination
Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
At the time of application for review the applicant was the subject of an approved nomination. His then sponsor was Grafix Pty Ltd. He has since been sponsored and employed by Knight Merchants Pty Ltd.
The applicant provided to the Tribunal evidence that the nomination application made by Knight Merchants Pty Ltd in the occupation Graphic Pre-press Trades Worker (392211), of which the applicant is the nominee, was approved by the Department on 28 July 2015.
For these reasons the requirements of cl.457.223(4)(a) are met.
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. In this case the nominated occupation is now Graphic Pre-press Trades Worker.
The Tribunal has considered information from ANZSCO regarding the duties and indicative skill level for the nominated occupation. It states in part as follows:
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.
Tasks Include:
ooperating graphic cameras and other photographic equipment to reproduce camera-ready copy onto films, plates and digital output devices
ousing computer applications to generate images, text, layouts and impositions for print and other visual media displays
ooperating plate making equipment to reproduce images from film to printing plates, digital output devices and presses
ooperating computer screen-based equipment for scanning, colour separation, colour correction, masking, creative design, combining, imposing, retouching, and other processes used to transfer copy to film and produce film for plate, digital output and cylinder productions
ocarrying out digital and chemical proofing from digital systems, and negative and positive films
oevaluating printed proofs, checking and correcting them for quality
opreparing and exposing carbon tissue for laying on cylinders by transfer method, and developing images

392211 GRAPHIC PRE-PRESS TRADES WORKER

Manipulates, sets and composes text and graphics into a format suitable for printing and other visual media.
On the basis of the education documents provided with the visa application the Tribunal is satisfied the applicant has a Diploma of Printing and Graphic Arts (Printing) and a Certificate III in Printing and Graphic Arts (Graphic Prepress) from the Australian Institute of Commerce and Language. Having regard to the description of the subjects studied by the applicant in his Certificate III and Diploma the Tribunal is satisfied the applicant has learned the skills required to undertake the various tasks set out in ANZSCO for the occupation.
On the basis of the employment reference issued in October 2010 from Systronic IT Group the Tribunal is satisfied the applicant completed 915 hours of relevant employment with the business. The Tribunal has considered the assertions by the applicant that he has worked as a freelance graphic designer in Australia. There is no other independent evidence to support this claim. It also has some concerns about the reliability of the employment reference from U-Need Printing Services for the reasons identified in the delegate’s decision record. However considering the evidence overall, and in particular the applicant’s qualifications and subjects studied, the ANZSCO definition for the occupation, and his current sponsorship and employment with Knight Merchants Pty Ltd as a Graphic Pre-press Trades Worker, the Tribunal is satisfied the applicant has skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).
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
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)(a) and cl.457.223(4)(da) 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
(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.

[2015] AATA 3183

29 July 2015

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Immigration

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