1414982 (Migration)

[2016] AATA 3026

1414982 (Migration) [2016] AATA 3026 (14 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aiden James McElroy

CASE NUMBER:  1414982

DIBP REFERENCE(S):  BCC2014/986005

MEMBER:Alison Mercer

DATE:14 January 2016

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 14 January 2016 at 11:37am

.

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 14 April 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 21 August 2014 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had the required skills, qualifications and/or employment background for his nominated occupation of Computer Network and Systems Engineer (Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 263111).  The delegate found that the applicant’s qualifications (a BTEC National Diploma and BTEC Higher National Diploma in Electrical/Electronic Engineering) were not at the level required by ANZSCO, which specified a Bachelor degree for this occupation.  Alternatively, ANZSCO required at least 5 years of relevant experience.  The delegate considered the applicant’s 7 years of work experience as an IT Manager (October 2005 to October 2012) but was not satisfied that this met the requirement as the applicant had not provided an employment reference from his employer in relation to this period.

5. The Tribunal received a review application from the applicant on 3 September 2014.  It was accompanied by a copy of the delegate’s decision.

6. On 7 April 2015, the applicant provided ‘evidence of seven years experience of configuring, maintaining and installing IT networks’, noting that when he resigned from his overseas employer, Dawson Whyte, it was in the process of being taken over by another company, Towergate.  The applicant stated that this had caused delays in being able to obtain a work reference for his previous employment with Dawson White.  However, he had now been able to do so, and he attached a copy of the reference, together with a chain of email correspondence demonstrating the number of requests that had had to be made within Towergate in order for the reference to be provided to the applicant.

7. The reference provided by the applicant is dated 30 March 2015, and is from Paul Dale, Director of Towergate Dawson White, Derry, Northern Ireland.  Mr Dale states:

   I can confirm:

   ·[the applicant] worked for Dawson Whyte for 7 years (October 2005 to October 2013);

   ·He was employed as the IT Manager;

   ·A fundamental part of his role was configuring and managing the networks

   And as such, meets the criteria of:

   ‘Plans, develops, deploys, tests and optimises network and system services, taking responsibility for configuration management and overall operational readiness of network systems, especially environments with multiple operating systems and configurations, and provides troubleshooting and fault-finding services for network problems.’

   …

8. The matter was constituted to a Tribunal Member on 25 June 2015.  On 2 September 2015, the matter was reconstituted to a new Tribunal Member as the original Tribunal Member was unable to complete the review.

9. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Skills, qualification and employment background of the applicant

12. 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 Computer Network & Systems Engineer (ANZSCO code 263111).

13. As noted by the delegate, the ANZSCO occupational description for a Computer Network & Systems Engineer lists the following skills, qualifications and employment background expected of the occupation (emphasis added by Tribunal):

    UNIT GROUP 2631 COMPUTER NETWORK PROFESSIONALS

    COMPUTER NETWORK PROFESSIONALS research, analyse and recommend strategies for network architecture and development, implement, manage, maintain and configure network hardware and software, and monitor and optimise performance, and troubleshoot and provide user support.

    Indicative Skill Level:
    In Australia and New Zealand:

    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 and/or relevant vendor certification 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).

    
    Tasks Include:

    ·analysing, developing, interpreting and evaluating complex system design and architecture specifications, data models and diagrams in the development, configuration and integration of computer systems

    ·researching, analysing, evaluating and monitoring network infrastructure to ensure networks are configured to operate at optimal performance

    ·assessing and recommending improvements to network operations and integrated hardware, software, communications and operating systems

    ·providing specialist skills in supporting and troubleshooting network problems and emergencies

    ·installing, configuring, testing, maintaining and administering new and upgraded networks, software database applications, servers and workstations

    ·providing network programming in support of specific business needs and requirements

    ·preparing and maintaining procedures and documentation for network inventory, and recording diagnosis and resolution of network faults, enhancements and modifications to networks, and maintenance instructions

    ·monitoring network traffic, and activity, capacity and usage to ensure continued integrity and optimal network performance

    
    Occupations:

    263111 Computer Network and Systems Engineer
    263112 Network Administrator
    263113 Network Analyst

    
    263111 COMPUTER NETWORK AND SYSTEMS ENGINEER

    
    Plans, develops, deploys, tests and optimises network and system services, taking responsibility for configuration management and overall operational readiness of network systems, especially environments with multiple operating systems and configurations, and provides troubleshooting and fault-finding services for network problems.

    Skill Level: 1

    Specialisations:

    Computer Network Engineer
    Computer Systems Integrator

    …

14. The applicant has provided evidence of the following qualifications and employment experience:

    ·BTEC National Diploma in Engineering (Electrical/Electronic) from Belfast Institute of Further and Higher Education, awarded in June 2000;

    ·RSA Integrated Business Technology Stage II certification, awarded by Oxford, Cambridge and RSA (OCR) Examinations in June 2001; and

    ·BTEC Higher National Diploma (Electrical/Electronic Engineering) from Belfast Institute of Further and Higher Education, awarded in June 2002; and

    ·IT Manager, Dawson Whyte, Northern Ireland, October 2005 to October 2012.

15. The Tribunal is satisfied from its research that the Business and Technician Education Council (BTEC) is a provider of secondary school leaving qualifications and further education qualifications in England, Wales and Northern Ireland: >

    The most recent Department of Education and Training Country Education Profile for the United Kingdom indicates that a BTEC National Diploma is equivalent to a Certificate IV under the Australian Qualifications Framework (AQF), and that a BTEC national Higher Diploma is equivalent to an AQF Diploma or Advanced Diploma: >

    Information accessed by the Tribunal indicates that the applicant’s RSA Integrated Business Technology Stage II certification issued by OCR is a vocational level qualification: >

    Having considered the applicant’s qualifications, the Tribunal is not satisfied that they are equivalent (singly or taken together), to an Australian bachelor degree, which is the qualification skill level required by ANZSCO for the nominated occupation.

16. Accordingly, the Tribunal has considered whether the applicant has at least 5 years of relevant employment experience, as ANZSCO indicates that this may substitute for formal qualifications.

17. The delegate noted that although the applicant stated that he had 7 years of relevant overseas employment experience as an IT Manager with Dawson White between 2005 and 2012, he did not provide a reference to substantiate this. 

18. The applicant has now provided an employment reference from Mr Paul Dale, a director of Towergate Dawson Whyte (previously Dawson Whyte), which confirms that the applicant was employed there as an IT Manager for the period claimed. Mr Dale further states that the applicant performed duties there consistent with the ANZSCO position description tasks for a Computer Network & Systems Engineer. The Tribunal finds that this employment experience was gained after the applicant completed his BTEC and OCR vocational qualifications.  The Tribunal is satisfied from this that the applicant has at least 5 years of relevant employment experience and is further satisfied that this can be appropriately substituted in ANZSCO for a relevant bachelor degree.

19. Based on this, the Tribunal is satisfied that the applicant does have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.  The Tribunal does not consider it necessary to require that the applicant demonstrate his skills pursuant to cl.457.223(4)(e).

20. For these reasons, the Tribunal is satisfied that the applicant satisfies the requirements of cl.457.223(4)(da).

21. The Tribunal notes that it has not been provided with information by the applicant as to whether his proposed employer is still an approved standard business sponsor, nor whether the nominated position remains approved or has ceased.  These will be matters for the Department to consider upon its reconsideration of whether the applicant meets the remaining criteria for the visa.

22. 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

23. 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.

    Alison Mercer
    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.