1508059 (Migration)

[2016] AATA 3220

1508059 (Migration) [2016] AATA 3220 (4 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Clare Alexandra Seddon

CASE NUMBER:  1508059

DIBP REFERENCE(S):  BCC2014/3587921

MEMBER:Carolyn Wilson

DATE:4 February 2016

PLACE OF DECISION:  Adelaide

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 04 February 2016 at 10:06am

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 31 December 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 visa on 8 June 2015 on the basis that cl.457.223(4)(da) was not met because the applicant had not demonstrated she had the qualifications and employment background necessary to perform the occupation.

5. The applicant appeared before the Tribunal on 8 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsoring employer, Ms Julie Kennedy.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. 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.

9. In this case the nominated occupation is Hotel and Motel Manager (ANZSCO 141311).  The ANZSCO entry for this occupation is as follows:

   HOTEL AND MOTEL MANAGERS organise and control the operations of hotels and motels to provide guest accommodation, meals and other services.

   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)

   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.

   Registration or licensing may be required.
   Tasks Include:

   o   directing and overseeing reservation, reception, room service and housekeeping activities

   o   supervising security arrangements, and garden and property maintenance

   o   planning and supervising bar, restaurant, function and conference activities

   o   observing liquor, gaming, and other laws and regulations

   o   assessing and reviewing customer satisfaction

   o   overseeing accounting and purchasing activities

   o   ensuring compliance with occupational health and safety regulations

   o   may provide guests with local tourism information, and arrange tours and transportation

   
   Occupation:

   141311 Hotel or Motel Manager

10. There is no dispute that the applicant does not have Skill Level 2 qualifications relevant to the nominated occupation.  That is, she does not have a bachelor degree, advanced diploma or diploma qualification relevant to the occupation. However at least three years of relevant work experience may substitute for the formal qualification. The Tribunal has therefore considered whether the visa applicant’s work history contains at least three years of relevant experience that may serve as a substitute for formal qualifications.

11. The applicant claims her employment in the United Kingdom has been invaluable experience for the role she now holds at the Manager at the Bruce Rock Hotel.   The applicant worked for an insurance company for 6 years, during which time she honed her skills in administration and customer service.  Her employer gave both written and oral evidence that she would not have employed the applicant were it not for this experience. It has enabled the applicant to undertake the administrative tasks of a Hotel Manager, and her customer service experience enables her to deal with difficult customers and provide high level customer service.  The employer asserts the occupation demands high competency in skills in both areas, and this is supported by the tasks of the occupation reproduced above. 

12. The Tribunal accepts the applicant has now been in the role of Hotel Manger at the Bruce Rock Hotel since June 2014, amounting to 20 months direct experience.  She also has a further 6 months relevant experience working in hotels in remote areas in Western Australia, managing the hotel bar as well as undertaking all the duties expected of someone working in a remote country Hotel.

13. The Tribunal is satisfied the applicant’s combination of work experience, that is, the 20 months in the position of Hotel Manger, 6 months Hotel experience, and 6 years of customer service  and administrative experience in the insurance industry, are sufficient to substitute for the formal qualifications.

14. It follows the Tribunal is also satisfied the applicant has the skills and employment background necessary to perform the tasks of the nomination.  The Tribunal has given considerable weight to the persuasive written and oral evidence of the sponsoring employer, on her high level of satisfaction with the applicant’s skills and employment background.  The Tribunal has also taken into account the employer’s evidence on the difficulty she would have recruiting a similar candidate, with the skills and background of the applicant, should the applicant’s visa application be refused.

15. The Tribunal finds the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation Hotel Manager.  For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

16. 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

17. 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.

    Carolyn Wilson
    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.