1504747 (Migration)

[2015] AATA 3850

1504747 (Migration) [2015] AATA 3850 (11 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jamshad Ahmed
Ms Nealam Nazir
Miss Kainaat Ahmed
Master Musa Ahmed
Miss Zainab Ahmed

CASE NUMBER:  1504747

DIBP REFERENCE(S):  BCC2014/2364146

MEMBER:Mary-Ann Cooper

DATE:11 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.234 of Schedule 2 to the Regulations.

Statement made on 11 December 2015 at 12:03pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 March 2015 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 18 September 2014. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Importer/exporter. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.234 of Schedule 2 to the Regulations because s/he was not satisfied that he had the requisite employment experience.

6. The applicant appeared before the Tribunal on 19 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from his current employer (also his sponsor).

7. The applicants were represented in relation to the review by their registered migration agent and were represented by a barrister at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets cl.186.234.

   Skills assessment and prior employment

10. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

11. For the skills assessment, the relevant assessing authorities for each occupation have been relevantly specified in IMMI 15/091 which is specified to apply to Subclass 186 visa applications made on or after 1 July 2014 but before 1 July 2015. For visa applications made on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa (cl.186.234(2)(aa)). For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended (cl.186.234(2)(ab) and (ac)).

12. In addition, if not an exempt person, the applicant must have been employed in the occupation for three years.  Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation (cl.186.234(2)(b)).

13. The applicant confirmed at the hearing that he does not fall within any of the specified exempt classes of persons. He therefore must satisfy cl.186.234(2).

186.234(2)(a)

1. Clause 186.234(2)(a) requires the applicant to have a suitable skills assessment from the relevant assessing authority for the occupation. In this matter, the occupation is relevantly identified in the nomination and the applicant’s visa application as an ‘Importer/Exporter’.

2. Relevantly to this case, the assessing authority specified for the occupation of Importer or Exporter (ANZSCO Code 133311), is VETASSESS. As noted above, for visa applications made on or after 28 October 2013, this assessment cannot be one for a Subclass 485 (Temporary Graduate) visa.

3. The applicant has provided a successful skills assessment for the occupation of Importer or Exporter dated 20 March 2014 which is not for a subclass 485 visa. The assessment does not specify a period of validity and, self-evidently, not more than 3 years has passed since its date.

4. The applicant therefore meets the requirements of cl. 186.234(2)(a),(aa),(ab) and (ac).

186.234(2)(b)

1. In addition, the applicant must have been employed in the occupation for three years.  Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis and at the level of skill required for the occupation.

2. Documents and other materials provided indicate that the applicant has been engaged in the importing/exporting business since 2001 when he formed his own company, Jamsoh Traders Ltd., in Japan, and commenced exporting Japanese vehicles.

3. The delegate, having considered the information supplied with the applicant’s visa application, did not accept that the applicant’s previous employment as CEO and President of that company should be counted towards the three year employment requirement. In this context she calculated only 1 year and eleven months relevant experience in Australia at the time of application and was therefore not satisfied that cl.186.234(2)(b) was met. Consequently the visas were refused.

4. At the hearing the applicant acknowledged the difficulties that he had experienced with establishing his import/export business in Australia and that he had very little business activity during this period. He maintained that he had been involved in importing/exporting, seeking overseas clients and trying to get the company established but had not succeeded. The Tribunal also observed that during the period since his grant of a subclass 457 visa in 2010 and his arrival in Australia in March 2011, and the filing of this application in September 2014, he had only spent approximately 9 months in Australia. The Tribunal observed that this did not appear to be consistent with employment in, and building of, the business in Australia. He responded that he had needed to travel to different countries to find clients and conduct face to face meetings. Prior to the hearing the Tribunal had raised with the applicant, under s.359A, the circumstances of the cancellation of his Australian company’s sponsorship approval and its subsequent 5-year ban. In particular it noted the finding that the applicant had not been working in the nominated position. The applicant acknowledged this outcome, saying he had not understood Australian business culture, that he had been slow to learn and build contacts, and that arrangements around auctions and leasing were quite different to what he had expected. The Tribunal notes that his 457 visa was not cancelled subsequent to the sponsor’s cancellation however it considers that his employment during this period in Australia does not reliably demonstrate his fulltime employment as an importer or exporter.

5. The Tribunal noted the significant turnover in export earnings in the Japanese business, Jamsoh Traders Ltd., during 2011 – 2013 and queried the applicant’s involvement. He confirmed that he has had no active recent engagement with that company other than as a shareholder. Conversely, there was significant evidence on file, and provided by the applicant, of his direct engagement in the exporting functions of that business over the period 2001 to 2010, before his arrival in Australia. In his oral evidence, he demonstrated in-depth knowledge of the importing/exporting environment and was able to give concrete examples of the tasks he performed which, the Tribunal notes, were generally consistent with those tasks listed in ANZSCO for the nominated occupation. He provided documents which demonstrated his direct involvement in identifying and engaging with local and overseas business opportunities and with developing and implementing business and marketing plans. In his role as President and CEO, the evidence also demonstrated, he was active in liaising with various suppliers and clients and constantly researching new opportunities. Other documents on file demonstrate his engagement with the shipping of goods. While the company organisation chart indicated that there were several employees in the business, the Tribunal accepts as convincing the applicant’s evidence of his ‘hands-on’ role, particularly in relation to finding and maintaining the larger business clients and in shipping and other negotiations.

6. His engagement in this regard is further reinforced by correspondence from the company’s Japanese accountant which confirms the applicant’s role with the company in Japan from 2001 to 2010 and his practical involvement in its main business of exporting Japanese vehicles/trucks to various countries over this period. The Tribunal notes that the Department’s guidelines contemplate an assessment based on overseas work experience as follows:

   Work experience can be obtained in or outside Australia

   The work experience requirement can be satisfied by any combination of overseas and Australian employment.[1]

   [1] PAM3 - MIGRATION REGULATIONS - SCHEDULES > PAM - Sch2 Visa 186 - Employer Nomination Scheme > Direct entry stream Paragraph 28.6

7. The applicant’s current employer (and sponsor) also gave evidence at the hearing which supported his claims in this regard. He claimed that the applicant’s contacts and experience had “opened doors” for his business overseas because of his knowledge of the buyers and the markets and had greatly assisted the expansion of the exporting part of his business.

8. Therefore, on the basis of the applicant’s detailed and convincing oral evidence of his activity over this period, and other material provided, the Tribunal is satisfied that the was employed fulltime in the occupation of exporter over the period 2001 to 2010. The Tribunal acknowledges his titles of President and CEO, and accepts that these roles may have imposed additional functions on him, however it does not consider that these titles necessarily detract from the content or substance of the work he performed as an exporter as has been established by the evidence.

9. The Tribunal considers that this conclusion is also supported by the VETASSESS assessment. As confirmed by additional evidence provided, the applicant relied solely on his overseas experience in his skills assessment application. That VETASSESS assessment determined as follows:

   “Based on the evidence provided at least three years of employment is assessed as highly relevant to the nominated occupation and completed at an appropriate skill level in the five years before the date of applying for this Skills Assessment. The employment described above meets the minimum requirements for this occupation.”

10. The Tribunal is therefore satisfied that the applicant’s 9-years’ overseas experience  at Jamsoh Traders Ltd. in the period 2001-2010 is appropriately characterised as satisfying the requirement that, at the time of application, he has been employed in the occupation of “Importer or Exporter” for at least 3 years.

11. The Tribunal further notes that other material on file confirms the applicant’s award of a Master of Business Administration in 1996. ANZSCO relevantly indicates that the required skill level for this occupation is Skill level 1, that is, a bachelor degree or higher. The Tribunal is therefore also satisfied that the applicant was employed in the position at the requisite skill level for the occupation.

12. For the above reasons, the Tribunal is satisfied that the applicant meets the requirements of cl.186.234(2)(b).

13. It follows that the applicant meets the requirements of  cl.186.234(2) as a whole and therefore satisfies cl.186.234(1).

    CONCLUSION

14. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    Secondary applicants

15. The delegate also refused visas to the secondary applicants, the wife and children of the visa applicant and who are included in his application. The delegate refused the visas because it followed that the refusal of the primary applicant’s visa meant that the secondary applicants did not meet the secondary criteria.  As the Tribunal is remitting the application it is appropriate for the delegate to consider these secondary criteria on remittal.

    DECISION

16. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.234 of Schedule 2 to the Regulations.

    Mary-Ann Cooper
    Member