1505003 (Migration)

1505003 (Migration) [2015] AATA 3374 (8 September 2015)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Puneet Vats
Mrs Sudesh Kumari
CASE NUMBER:  1505003
DIBP REFERENCE(S):  BCC2014/1890039
MEMBER:Karen Synon
DATE:8 September 2015
PLACE OF DECISION:  Melbourne
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)(da) and cl.457.223(4)(e) of Schedule 2 to the Regulations.

APPLICANT: Miss Hannah Vats
DECISION:The Tribunal does not have jurisdiction in relation to Miss Hannah Vats.
Statement made on 08 September 2015 at 5:13pm

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 3 August 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 26 March 2015 on the basis that cl.457.223(4)(e) was not met because the first named applicant (‘the applicant’) did not provide evidence of a successful skills assessment from VETASSESS as requested by the delegate.
On 13 April 2015 the applicants applied for review of the primary decision and provided a copy of the department’s decision.
The applicants were represented in relation to the review by their registered migration agent.
On 27 May 2015 a tribunal officer wrote to the applicants advising that it had formed the preliminary view that the application was not valid because at the time the review application was lodged there was no nomination of an occupation approved and in force as required by s.338(2)(d)(i) and nor was there a pending application for review of a decision not to approve the sponsor as a standard business sponsor as required by s.338(2)(d)(ii). Comments on whether a valid application had been made were invited by 10 June 2015.
On 27 May 2015 the applicant’s representative responded to the Tribunal’s letter attaching an approved notification of sponsorship and nomination for the applicant. The Business Sponsorship in relation to Persaud’s Enterprises Pty Ltd was approved on 24 October 2013 and the nomination in respect of the applicant was approved on 29 September 2014. As the application for review was lodged on 13 April 2015, once constituted, the Presiding Member was satisfied that a valid application for review was made.
Further, on 30 July 2015 the Tribunal wrote to the applicants in accordance with section 359(2) of the Migration Act inviting the applicant to provided additional information concerning his skills, qualifications and employment experience indicating that he possess the skills necessary to perform the nominated occupation of Program or Project Administrator. This information was invited by 13 August 2015.
The applicants were advised that if the Tribunal did not receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain his views on the information. The applicants were further specifically advised (in bold): [y]ou will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments. The Tribunal notes that the invitation to provide information was sent to the applicants’ authorised representative and registered migration agent via email on 30 July 2015 at 10.32am.
The applicants did not provide the information within the prescribed period and no extension was sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. In these circumstances the Tribunal has therefore proceeded to make a decision without inviting the applicants to appear before it at a hearing
Notwithstanding this the applicant’s representative did, on 22 August 2015, that is after the prescribed period for providing information had passed, provide a brief email apologising for the delay in providing information to the Tribunal as the applicant was overseas. A number of documents were provided. The Tribunal has considered these documents in making its decision.
Further, on 18 August 2015 the Tribunal again wrote to the applicants via their authorised representative and registered migration agent inviting comment on the validity of the application made in respect of Miss Hannah Vats. The Tribunal noted that in order to have made a valid application, Miss Hannah Vats must have been in Australia at the time the applications were lodged on 13 April 2015. As it appeared she was not in Australia on that date her application was not valid. Comments on the issue of the validity of the application in relation to Miss Hannah Vats were invited by 1 September 2015. No response or comments on the validity of the application of Miss Hannah Vats have been received at the date of this decision.
For the following reasons, the Tribunal has concluded that it has no jurisdiction in relation to the third named applicant, Miss Hannah Vats and that the decision under review should be remitted for reconsideration in relation to the first and second named applicants.
CONSIDERATION OF CLAIMS AND EVIDENCE
Jurisdiction and Miss Hannah Vats
Section 347(2) of the act specifies who has the right to apply for review of an MRT-reviewable decision. In the case of an MIT reviewable decision described in s.338(2), an application for review may only be made by the noncitizen who is the subject of the decision and who is physically present in the migration zone when the application for review is made: s.347(3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.
The Tribunal formed the preliminary view that it did not have jurisdiction in this matter because in order to make a valid application the visa applicant must have been in the Australian migration zone at the time the application for review was lodged on 13 April 2015.
As advised to the applicants by letter dated 18 August 2015, Miss Hannah Vats was not in Australia at the time the application for review was lodged. Comments on whether a valid application had been made in respect of Miss Hannah Vats were invited in writing by 1 September 2015. At the date of this decision no comments on the validity of the application in relation to Miss Hannah Vats have been received.
As such, the application for review made in respect of Miss Hannah Vats is not an application properly made under section 347 and it follows that the Tribunal does not have jurisdiction in this matter.
Consideration of the substantive issues
The substantive issues in the present case are whether the applicant meets the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).
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. In this case the nominated occupation is ‘Program or Project Administrator’.
As noted above on 22 August 2015 a number of documents were provided to the Tribunal. These are:
·Certification that the applicant had completed the requirements for the award of an Advanced Diploma of Hospitality and supporting documentation;
·Certification that the applicant has successfully completed a Diploma of Hospitality and supporting documentation;
·A Certificate V in Project Management Practice completed 9 September 2014; and
·A copy of the ANZSCO description in relation to the Unit Group 5111 ‘Contract, Program and Project Administrators’ in which the indicative skill level was identified as “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).
The delegate refused the visa because the applicant had not provided evidence of either the commencement of a VETASSESS Skills Assessment or the successful completion of a VETASSESS Skills Assessment. These skills assessments are an element of the formal 457 skills assessment policy contained in PAM3. While the Tribunal may be guided by this policy is not bound by it. Relevantly, the Tribunal notes that the Regulations, which it is required to apply, do not specify any particular manner in which an applicant’s skills and experience are to be demonstrated.
However in making its decision the Tribunal has had regard to the the ANZSCO Classification of Occupations which indicates an indicative skills level of an AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2). The Tribunal considers that the applicant’s qualifications met this basic indicative skill level.
The Tribunal has also had regard to the department’s policy guidelines and notes the following relevant information in PAM3 in relation to skills assessments:
Qualifications and experience
110 Assessment against the nominated occupation in ANZSCO
…110.2 For nominations made on or after 1 July 2010
Under regulation 2.72(10)(e)(iv), the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified:
·for the occupation in the relevant ANZSCO code or…
Demonstration of skills
116 May be required
Clause 457.223(4)(e) provides that officers may require the applicant to demonstrate that they have the skills and experience that are necessary to perform the nominated occupation. If an applicant is required to demonstrate these skills and experience, officers are to specify the manner in which this is to occur…
It is also departmental policy that all applicants nominated in the occupations of Program and Project Administrator (ANZSCO 511112) and Specialist Managers nec (ANZSCO 139999) will be required to demonstrate that they meet 457.223(4)(e) by providing evidence of having completed a skills assessment for migration purposes conducted by VETASSESS (Skills Recognition – General Occupations) - a VETASSESS 485 skills assessment is not acceptable for this purpose.
Exemptions
In some circumstances, officers may exercise their discretion to not require a TRA 457 skills assessment from a visa applicant who would otherwise have been required under policy to do so. Officers may consider exercising this discretion if the visa applicant…
· holds the relevant Australian qualification (Certificate IV or above) for the nominated occupation, gained by studying in Australia or
· holds a relevant qualification that is commensurate with the level indicated in ANZSCO for the nominated occupation and was gained by studying in a country that would not be subject to a TRA 457 skills assessment normally or…
Having regard to the applicant’s qualifications, evidence of which has been provided to the Tribunal and his previous employment, as detailed in his visa application, the Tribunal is satisfied that the applicants meets the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).
The Tribunal notes that it has no information before it about the particular nominated position of Program or Project Administrator in the sponsoring employer, Persaud’s Enterprises Pty Ltd, and is therefore not able to make any findings on the genuineness or otherwise of the position.
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.
DECISIONS
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)(da) and cl.457.223(4)(e) of Schedule 2 to the Regulations.
The Tribunal does not have jurisdiction in relation to Miss Hannah Vats.
Karen Synon
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.

[2015] AATA 3374

8 September 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction

Remedies