1508019 (Migration)

[2016] AATA 4442

1508019 (Migration) [2016] AATA 4442 (27 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joshua Gale Hicks

CASE NUMBER:  1508019

DIBP REFERENCE(S):  BCC2015/1014546

MEMBER:Hugh Sanderson

DATE:27 September 2016

PLACE OF DECISION:  Sydney

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) of Schedule 2 to the Regulations.

Statement made on 27 September 2016 at 11:25am

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 1 April 2015.

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 22 May 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

   Background

5. The applicant is a citizen of the United Kingdom. He was sponsored in his application by his employer, Make It Cheaper Pty Ltd, as a contract administrator.

6. The applicant provided a resume of his previous work history. This indicated that he had worked for the following organisations over the following periods:

   ·Sales agent for Sky TV – April 2002 to February 2003;

   ·Sales consultant for Phones4u – March 2003 to February 2005;

   ·Retail consultant for Specsavers – April 2005 to February 2007;

   ·Media sales executive for Infoserve Group – January 2007 to March 2013;

   ·Sales agent for Peakbound – May 2013 to November 2013;

   ·National account manager for Tattoo Studio Hunter – November 2013 to December 2013;

   ·Tractor driver for Mackay Bananas – January 2014 to April 2014;

   ·Sales agent for Peakbound – April 2014 to October 2014; and

   ·Contract administrator for Make It Cheaper – November 2014 to date.

7. The delegate who considered the application noted the following issues:

   ·The level of qualifications and/or experience for the nominated occupation of contract administrator as specified in ANZSCO requires the occupation to plan and undertake administration of contracts, organisational programs, special projects and support services;

   ·The level of qualification required for such a position requires an Associate Degree, Advanced Diploma or Diploma or in the absence of formal qualification at least three years of relevant experience;

   ·There is no evidence which would indicate the applicant holds a minimum qualifications required;

   ·Apart from his current employer which he commenced in November 2014, the only employment the applicant has had which would align with the necessary duties would be with Infoserve Group, however, the negotiating of rates and contractual terms with business clients was not a core duty during his employment and was more closely aligned to a sales representative which is not a relevant occupational experience; and

   ·The applicant’s current employment has been less than three years and therefore does not meet the necessary length of relevant experience.

8. Taking these factors into account, the delegate found the applicant did not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. Accordingly, the delegate found that the applicant did not meet the criteria in cl.457.223(4)(da) and refused the application.

   Information to the Tribunal

9. The applicant provided a report from Mary O’Keefe, director of Blue Fox Group who was described as an industry workplace assessment competency expert. She provided an opinion as to the current work of the applicant at Make It Cheaper and whether his employment there met the core competencies for a Contract Administrator. Submissions were provided by the applicant’s agent.

10. The applicant appeared before the Tribunal on 26 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s manager, a human resources officer from the firm and from Ms O’Keefe. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

11. The applicant confirmed that he had not obtained any further education after finishing high school. He provided details of his work experience. The applicant provided details of his employment with Infoserve Group and the development of his work skills while working with them. He stated that over the years that he was working for Infoserve he was involved in training new staff members and developing campaigns. He said that he did not have any workers answering to him. He said that there were about 150 other people working at his level, however, he was their senior due to his length of service, experience and success in developing contracts with clients.

12. The applicant provided further details of his work responsibilities with his current employer.

13. The applicant’s manager, human resources officer and Ms O’Keefe provided further details of the applicant’s work with his current employer and the value that is placed on him in the work he does. They were not able to provide information about the applicant’s previous work experience or duties.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).

    Skills, qualification and employment background of the applicant

16. 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 contract administrator.

17. The Tribunal has assessed the applicant’s skills with reference to the skill level specified in ANZSCO. According to the ANZSCO description of a contract administrator, most occupations in this unit group have a level of skill requiring an Associate Degree, Advanced Diploma or Diploma. At least three years of relevant experience may substitute for the formal qualifications.

18. The applicant stated that he completed high school and did not complete any tertiary studies. The Tribunal finds that the applicant does not have qualifications at least at the diploma level.

19. The Tribunal has considered the applicant’s work history and whether his experience can substitute for formal qualifications.

20. The applicant has provided further evidence as to his current responsibilities and role with his current employer. An assessment was obtained from Ms O’Keefe as to the relevance of his current employment with the described position of contract administrator. The Tribunal is satisfied that the applicant’s current employment, which he commenced in November 2014, has provided him experience in the nominated occupation of contract administrator. He has been involved in developing contracts with clients and service providers, dealing with the associated paperwork in responding to any problems in those contracts. His role includes collecting and analysing appropriate data and reporting to senior management. The Tribunal places weight on the evidence given by the applicant’s manager and Ms O’Keefe as to the current skills of the applicant required for his current employment.

21. The applicant’s employment with his current employer has been less than two years. The Tribunal has considered the previous work conducted by the applicant has provided him the skills and employment background that would be necessary to perform the tasks of a contract administrator.

22. The applicant’s primary previous employer has been with Infoserve Group with whom he was employed for over six years. His position with that employer was described as a “media sales executive”. The applicant provided evidence as to the nature of his employment there. He said that he was working out of a call centre with about 150 other employees engaged in developing contracts with clients based on their service needs. He said that over the time he was employed by Infoserve his skills and experience improved and he was called upon to do training for new employees and take on more responsibility in his role there. He confirmed that he was not required to directly supervise any other employees. He was consulted as an experienced employee when considering proposed campaigns. He said the role he had at Infoserve did not have the same degree of technical demands that his current employment has, however, without the experience that he gained when working at Infoserve he did not believe that he would have the skills that he is required to have in his current employment.

23. The Tribunal finds that the employment the applicant was engaged in with Infoserve developed over the six years he worked for them such that by the last years of his employment there his position was one of a contract administrator. He was working with project managers and owners to ensure goals were met, advising senior management of matters requiring attention and collecting and analysing data associated with projects. The Tribunal finds that the employment the applicant had at Infoserve together with his employment with Make It Cheaper has, at the time of this decision, provided him more than three years relevant experience as a contract administrator giving him the skills, qualifications and employment background that is necessary to perform the tasks of the nominated occupation.

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

25. 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

26. 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) of Schedule 2 to the Regulations.

    Hugh Sanderson
    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

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)    subclause (6) does not apply to the applicant;

    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.