1419311 (Migration)

[2016] AATA 3410

1419311 (Migration) [2016] AATA 3410 (19 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JUDE RUSEL SADEEPA SAPARAMADU PONNAVILA VIDANELAGE DON

CASE NUMBER:  1419311

DIBP REFERENCE(S):  bcc2014/1973680

MEMBER:Antonio Dronjic

DATE OF DECISION:  19 February 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) and (e) of Schedule 2 to the Regulations.

Statement made on 19 February 2016 at 11:00am

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 12 August 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 7 November 2014 on the basis that that cl.457.223 (4)(da) was not met because the delegate was not satisfied that the applicant have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of an ICT Business Analyst (ANZSCO261111).

5. The applicant applied to the Tribunal on 26 November 2014 for review of the delegate’s decision. With the review application, the applicant provided a copy of the primary decision record.

6. On 16 November 2015, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act  inviting the applicant to provide information in writing that demonstrate that the applicant meets the requirements of cl.457.223(4) (a) or at the very least, evidence that his prospective employer lodged a new nomination application with the department. In addition,   the tribunal invited the applicant to provide information in writing that demonstrate that the applicant meets the requirements of cl.457.223(4) (da) and (e) to the Regulations.

7. On 30 November 2015, the applicant’s representative submitted:

   ·DIBP acknowledgment letter dated 30 November 2015 as evidence that on the same day the applicant’s prospective employer lodged a new nomination application with the department;

   ·IELTS test results for the applicant evidencing the overall score of 7.5;

   ·Copy Diploma in Information Technology from Sri Lanka awarded to the applicant on 2 February 2009;

   ·Skill Assessment letter dated 18 October 2012 issued by the Australian Computer Society as evidence that the applicant’s skills have been assessed as suitable for migration under ICT Business Analyst (ANZSCO 261111);

   ·Letter from RMIT University dated 27 July 2011 as evidence that the applicant has completed Bachelor of Information Technology at this University from July 2009 to June 2011;

   ·Letter from RMIT University dated 20 September 2012 as evidence that the applicant has completed an approved course and satisfies requirements for admission to the degree of Masters in Information Technology.

8. On 3 December 2015, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 11 February 2016.

9. The applicant appeared before the Tribunal on 11 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicant was represented in relation to the review by his registered migration agent.

10. I welcomed the applicant and his representative and explained the issues that are before the Tribunal. The applicant’s representative confirmed that the nomination application was lodged with the DIBP by the prospective employer on 30 November 2015 and that decision is still pending. The applicant was nominated for the same position of an ICT Business Analyst (ANZSCO 261111).

11. I indicated that the issue before the Tribunal arising out of the primary decision is whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. I explained that, if the tribunal finds that the applicant meets cl. 457.223(4)(da) and (e), the matter will be remitted to the DIBP for further processing.

12. This is the summary of the applicant’s oral evidence.

13. He came to Australia in 2009 as a holder of a Student visa subclass 573. In Australia he had completed both Bachelor of Information Technology Degree and Masters in Information Technology Degree at RMIT University. He is and has been working on a part time basis as a General IT Maintenance officer for the nominating company since 2009.

14. I indicated that, based on the evidence before me, including the applicant’s educational certificates, I accept that he has the qualifications necessary to perform the tasks of the nominated occupation.

15. However, I requested additional evidence from his employer that will confirm that he has skills and employment background necessary to perform the tasks of the nominated occupation.

16. I noted that his employer did not provide reference letter in support of this application. The applicant and his representative have undertaken to provide this evidence on or before 18 February 2016.   

17. On18 February 2016, the applicant’s representative submitted the following documents:

    ·Letter from the sponsoring employer dated 1 February 2016 explaining the reasons for employing the ICT Business Analyst;

    ·Applicant’s updated VC; and

    ·Letter from the sponsoring employer dated 16 February 2016 attesting to the applicant’s ability to perform the nominated occupation.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Skills, qualification and employment background of the applicant

19. 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 ICT Business Analyst (ANZSCO 261111).

20. The Tribunal accepts that the determination of the application requires more than a narrow matching process between an applicant’s tasks and an ANZSCO occupational definition. Instead, it is preferable to approach the matter by ascertaining the applicant’s skills and how these skills are to be applied in the nominated occupation: Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116.

21. I considered the tasks, duties and the indicative skill level for the occupation of an ICT Business Analyst and I regard these ANZSCO indications as important considerations. However, I approached my task of assessing the applicant’s skills by reference to all of the available evidence relating to the applicant.

22. Based on the evidence before me, including the applicant’s educational certificates indicating that he had completed both bachelor degree and Masters in IT and the skills assessment letter from the Australian Computer Society,  I am satisfied that the Applicant’s studies have provided him with the necessary qualifications and skills to perform the nominated role. I am satisfied that the Applicant, with his bachelor degree and Masters in IT, has the requisite level of education commensurate with the nominated position and has acquired skills that have direct correlation and application to the nominated position.

23. In addition, I am satisfied that the applicant has also developed the skills necessary to perform the role of ICT Business Analyst through his employment history. Based on the work reference letters submitted by the applicant, I am satisfied that he has accumulated more than the required three years of relevant work experience.

24. The Applicant has been working for the sponsoring employer since 2009. The letter from his current employer is evidence that he has proven his ability to effectively perform the tasks assigned. This evidence was not before the delegate at the time of primary decision.

25. Accordingly, on the evidence before it, the Tribunal is satisfied that the applicant has the skills and employment background necessary to perform the tasks of the nominated occupation, and thus finds that he satisfies cl.457.223(4)(da) and (e) at the time of the Tribunal’s decision.

26. 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

27. 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) and (e) of Schedule 2 to the Regulations.

    Antonio Dronjic
    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.