1500621 (Migration)

1500621 (Migration) [2015] AATA 3448 (6 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Shine Anna Thomas
Mr John Mathew
Miss Angela Ann John
CASE NUMBER:  1500621
DIBP REFERENCE(S):  BCC2014/2336430 EGO6MLUU90
MEMBER:Christopher Smolicz
DATE:6 October 2015
PLACE OF DECISION:  Adelaide
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)(d) and
·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 06 October 2015 at 1:43pm

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 16 September 2014.
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 visas on 9 January 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant has skills, qualification and employment background necessary to perform the tasks of the nominated position of Massage Therapist (ANZSCO 411611). The delegate was also not satisfied that the applicant’s intention to perform the occupation is genuine: cl.457.223(4)(d)(i).
The applicants appeared before the Tribunal on 29 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Lisa McPerson, Director, Total Image International Pty Ltd (TII).
The applicants were represented in relation to the review by their registered migration agent.
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 primary visa applicant meets the requirements of cl.457.223(4)(da) and cl.457.223(4)(d)(i).
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 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.
There is no threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, although in determining this question, the Tribunal may be guided by the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
The ANZSCO dictionary defines the indicative skill level for the position of Massage Therapist as follows:
MASSAGE THERAPISTS perform therapeutic massage and administer body treatments for health, fitness and remedial purposes.
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 Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

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:
omassaging the soft tissues of the body, such as muscles, tendons and ligaments, to assist healing
outilising a range of massage techniques to enhance sports performance and prevent injury
oadministering treatments to promote relaxation, improve circulation and relieve muscle tension
oassessing and treating specific soft tissue dysfunction and providing rehabilitation advice
oemploying other techniques, such as acupressure or Shiatsu, and complementary aids, such as infra-red lamps, wet compresses, ice, essential oils and herbal and mineral therapies, to assist recovery
oassessing client's physical condition and case history and advising on stretching exercises and relaxation techniques
The Tribunal acknowledges that the classifications contained within ANZSCO are intended merely as a guide and in assessing this criterion the regulations in this context do not require formal or full skills assessment. The Tribunal also notes that the determination of each application requires more than a narrow matching process between an applicant's tasks and ANZSCO occupational definition.
The applicant is a national of India. She arrived in Australia in February 2014 as the holder subclass 573 student visa. In August 2014 she enrolled in a Master of Public Health at Curtin University, Western Australia. She did not complete the course and withdrew in August 2014. In March 2015 the applicant enrolled in a Certificate IV in Massage Therapy Practice. She successfully completed the course in August 2015.
Prior to arriving in Australia the applicant obtained a Bachelor of Science (Nursing) Degree from Tamil Nadu DR MGR Medical University, Chennai. She is registered in India to practice as a Nurse and Midwife. The applicant has had the following relevant work experience prior to arriving in Australia:
· February 2009 to November 2009: full-time employment as maternity ward nurse, including pre and post natal care, NRR Hospital Bangalore in India; and
· September 2010 to June 2011: full-time rehabilitation nurse, including use of massage techniques and soft tissue handling procedures as part of hands on care, Al Matrook Conductive Rehabilitation Centre, Kingdom of Bahrain[1].
[1] >
It was submitted that while the applicant does not have formal qualifications equivalent to AQF Associate Degree, Advanced Diploma or a Diploma in massage therapy she has over three years of relevant experience in massage therapy having performed prenatal and postpartum massage to the patients of the maternity ward while working as a registered nurse in the maternity ward of the NRR Hospital Bangalore in India from February 2009 to November 2009.
It was submitted that in the period September 2010 to June 2011 the applicant carried out extensive rehabilitative massage therapy while working as a registered nurse at Al Matrook Conductive Rehabilitation Centre, Kingdom of Bahrain. The applicant said that she worked with young children who have mental and motor disability providing massage therapy. She worked under the guidance of a physio therapist and occupation therapist who would provide her with training and information on the needs and requirements of individual of patients.
The Tribunal was also provided with a copy of the curriculum of the nursing degree from the Tamil Nadu DR MGR Medical University, India. According to the curriculum the applicant has undertaken the study of human anatomy and physiology as part of her nursing degree. For example, in the physiology unit, the applicant studied muscle movements, muscle tone, physiology of muscle contraction, levels and maintenance of posture. It was submitted that the applicant’s overall nursing studies enabled her to gain an in-depth knowledge of the muscular, circulatory and endocrine system of the human body which has given her with an insight and background to massage therapy.
In March 2014 the applicant commenced working as a Massage Therapist for TII.
The Tribunal noted that the delegate had regard to the reference provide by Ms McPherson and noted that many of the duties performed by the applicant do not relate to massage therapy. For example, the delegate found that applicant performs various skin rejuvenation procedures such as acne treatments, IPL procedures, wrinkle removal and pigmentation removal. Ms McPherson said that a large part of TII’s work involved massage therapy and she employed four staff with the applicant and another staff member specialising in soft tissue relaxation massage. The Tribunal was provided with TII’s advertising and promotional material which supports the Ms McPherson’s evidence.
Ms McPherson said that the applicant would see about 3 to 4 clients a day for one and half to two hour sessions. The Tribunal was provided with the applicant’s booking schedule in support of the evidence. Ms McPherson said that the applicant would only assist her with skin treatment therapy only when she was not working as a Massage Therapist.
According to Ms McPherson’s evidence the applicant has now worked as a Massage Therapist for TII for about 18 months.
On the basis of the evidence before the Tribunal finds, the applicant possesses some 43 months of specific employment experience relevant to the occupation of Massage Therapist in lieu of formal qualifications.
The Tribunal is satisfied that the nominated occupation is commensurate with that of a Massage Therapist as described in ANZSCO. Taking into consideration the indicative skill levels detailed within ANZSCO and assessing the applicant’s background by reference to a combination of her nursing qualifications, Certificate IV studies and practical work experience in India, Bahrain and Australia, the Tribunal find that the applicant does possess the necessary combination of skills qualification and employment background necessary to perform the tasks of Massage Therapist. The Tribunal is also satisfied the applicant’s intention to perform the occupation is genuine and that the position associated with the nomination occupation is genuine. For these reasons the applicant satisfies the requirements of cl.457.223(4)(d) and cl.457.223(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 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)(d) and
·cl.457.223(4)(da) of Schedule 2 to the Regulations.
Christopher Smolicz
Senior Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)
457.223 Criteria to be satisfied at time of decision
…
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 3448

6 October 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction