1500176 (Migration)

[2016] AATA 3256

1500176 (Migration) [2016] AATA 3256 (16 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tomas Priecko
Ms Lucia Polomska

CASE NUMBER:  1500176

DIBP REFERENCE(S):  BCC2014/2271976

MEMBER:Rania Skaros

DATE:16 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

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

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

Statement made on 16 February 2016 at 8:40am

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 10 September 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 visas on 18 December 2014 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant demonstrated that he has the skills, qualifications and employment background necessary to successfully perform the tasks of the nominated occupation.

5. On review, the Tribunal received evidence of a current approved nomination, and further information in support of the applicant’s employment background and suitability for the nominated position.

6. The applicants were represented in relation to the review by their registered migration agent.

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)(a) and (da).

   Requirement for an approved nomination

9. 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.

10. The Tribunal has received a copy of an approved nomination in respect of the visa applicant, dated 31 December 2015, in the nominated occupation of Conference and Event Organiser (149311).

11. The Tribunal is satisfied on the basis of this that there is an approved nomination in respect of the applicant that has not ceased.

12. For these reasons the requirements of cl.457.223(4)(a) are met.

    Skills, qualification and employment background of the applicant

13. 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 Conference and Event Organiser (149311).

14. Like the delegate, the Tribunal has also had regard to the indicative skill level and duties of the nomination occupation as set out in the ANZSCO, which indicates that an occupation in the until group 1493-11 has a level of skill commensurate with the qualification of an AQF associate degree, advanced diploma, or diploma (Skill Level 2). ANZSCO indicates that at least three years of relevant experience may substitute for formal qualifications.

15. There is no evidence before the Tribunal to suggest, and the applicant has not claimed, that he has at least a diploma qualification. In the circumstances, the Tribunal has considered his employment background.

16. The applicant claims to have been relevantly employed as and Events and Brand Manager for Sport Ex in Slovakia from 2007 to May 2011. He claims to have worked for the same company as a Warehouse Manager and Sales Manager from 2001 to 2007. He has also been employed with his sponsoring employer as an Events Organiser since February 2014. The Tribunal received a letter from the sponsoring employer, dated 25 January 2016, confirming the applicant’s continued employment for them.

17. In relation to his overseas employment, a number of concerns arose out of a verification check conducted by the Department’s overseas post. The delegate had concerns that the personnel officer who provided the reference was not able to provide detailed information about the applicant’s duties and responsibilities, stating only that he was in charge of advertising campaigns on the internet and billboards. There was also concern that the website for Sport Ex indicated that it was an online shop with no evidence of activities organised. Other evidence provided by the personnel officer included that the applicant was in charge of selecting and receiving goods and equipment for the wholesale operations, that no events had been organised by the company since 2010, which is when the referee claimed to have joined the company, and that the referee does not know exactly what the applicant did as they did not overlap for a long period of time and he relied on personnel records to provide the reference. 

18. In response to an invitation to comment on the information the applicant then provided a letter from the owner of Sport Ex which provided other information that appeared inconsistent, including that the applicant worked with the Company until September 2011,not May 2011, as claimed by the applicant and as indicated in the earlier employment reference. It noted that the personnel officer only joined the company in September 2013 and would not have known about events organised during the time the applicant was employed with the company, and this was inconsistent with information that the personnel officer commenced in 2010 just as the applicant was finishing up his employment there. The delegate was also concerned that there were no other supporting documents to substantiate the exact period of the applicant’s employment with Sport Ex and queried the reliability of the references and the applicant’s claimed employment as an Events and Brand Manager. The delegate considered the applicant’s employment as a Warehouse Manager and Sales to be more consistent with the business of Sport Ex. The delegate was ultimately not satisfied that the applicant had three years of relevant experience in the nominated occupation.

19. On review, the Tribunal received a number of documents including payslips and taxation documents in relation to the applicant which support his claim to have been employed by Sport Ex. In relation to his claimed employment as an Events and Brand Manager, he provided various documents and photographs as evidence of the events and promotions organised by him for the various brands distributed by Sport Ex.  Also provided was a letter from Femipleasure, a client of Sports Ex, detailing their business relationship with Sport Ex, the promotions of their product at events and trade shows organised by Sport Ex, and indicating that between 2008 and 2011 they liaised with the applicant in relation to planning events to promote their products. The Tribunal has also had regard to the letter from the sponsoring employer attesting to the applicant’s employment background and experience and indicating that he has the skills to undertake the duties of the occupation.

20. While the Tribunal has some concerns about the information obtained during the verification checks and the inconsistent information provided by the owner of Sport Ex, which in combination cast some doubt about the applicant’s claimed employment as the Events and Brand Manager for Sport Ex, it did not consider it sufficient to conclude that the applicant did not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

21. Given the passage of time, the applicant now has two years of relevant experience with his sponsoring employer. The Tribunal is also satisfied on the evidence that the applicant was employed with Sport Ex in Slovakia from 2001 until 2011, and that for part of that time he was involved in organising promotions of brands sold by Sport Ex. While the Tribunal is not entirely convinced, given the concerns raised above, that the applicant undertook the duties claimed with Sport Ex on a full time basis for the period claimed, it nevertheless considers the totality of his employment with Sport Ex, including as a Warehouse Manager and Sales, to be relevant to the types of tasks typically performed by Conference and Event organisers, including dealing with customers, meeting customer needs, responding to enquiries, arranging, co-ordinating, negotiating and supervising. On this basis, the Tribunal is satisfied that the applicant as at least three years of relevant experience.

22. Given the above, the Tribunal finds that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

23. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

24. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the Subclass 457 visas.

    DECISION

25. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

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

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

    Rania Skaros
    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.