1508156 (Migration)

[2016] AATA 4712

1508156 (Migration) [2016] AATA 4712 (25 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gerald Roland SMITH
Mrs Gurianna Doris SMITH
Mr Jayden Jermaine Andrew SMITH

CASE NUMBER:  1508156

DIBP REFERENCE(S):  BCC2015/76645

MEMBER:Hugh Sanderson

DATE:25 November 2016

PLACE OF DECISION:  Sydney

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) of Schedule 2 to the Regulations; and

·cl.457.223(4)(e) of Schedule 2 to the Regulations.

Statement made on 25 November 2016 at 1:10pm

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 8 January 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 visas on 10 June 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 first named applicant (hereinafter “the applicant”) is a citizen of the United States of America. The second named visa applicants are his wife and child. Their applications are based on the applicant meeting the primary criteria for the grant of the visa.

6. The applicant applied for the visa on the basis of his sponsorship by Safe Places Community Services Limited 1 for the position of a youth worker. He stated that he had worked with this organisation since 26 May 2014 and had attended various short training courses. He did not disclose that he had any trade or professional qualifications.

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

   ·For the occupation of youth worker (ANZSCO Code 411716) the indicative skill level specified requires in Australia an equivalent qualification of an Associate Degree, Advanced Diploma or Diploma or, in the absence of formal qualification, at least three years of relevant experience;

   ·The applicant had provided certificates for attendance at short courses which did not amount to the required formal qualification;

   ·The applicant had provided a letter of enrolment for a Certificate IV in Child Youth and Family Intervention, but no evidence that he had completed this course and if he had graduated from this course it would not meet the required formal qualification;

   ·The applicant’s resume indicated that he had been working for Safe Places for Children since May 2014 which was (at the time of the department’s decision) a period of 13 months which was well short of the three years of relevant experience required; and

   ·The applicant’s prior stated work history included employment as a labourer, chef and submariner in the United States Navy which was not relevant work experience to the occupation of youth worker.

8. Taking these factors into account, the delegate found that the applicant did not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of youth worker. Accordingly, the delegate found the applicant did not meet the criteria in cl.457.223(4)(da) and refused the application. As the applicant did not meet the criteria for the grant of the visa the secondary applicants also did not meet the criteria in cl.457.321 and refused their applications.

   Information to the Tribunal

9. The applicant and his wife appeared before the Tribunal on 19 September 2016 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.

10. The applicant claimed that he had done voluntary work in Australia since October 2013. He said that this involved working every Friday for two hours with the Living Like Gospel Church. The applicant said that he was still doing this. He said that he had only been in paid employment as a youth worker since May 2014. The Tribunal indicated that working two hours a week on a voluntary basis did not appear to meet the criteria of necessary employment background and, in any event, it was still less than three years. The applicant agreed with this.

11. The applicant said that he had completed his certificate IV and was likely to be granted a Diploma in November 2016. He said that he had started studying for the diploma three weeks prior to the hearing in Community Services and that he should be awarded the diploma of November 2016. He said that he was also studying for a Diploma in Leadership Management which he anticipates he will complete in early 2017.

12. The applicant acknowledged that at the time the hearing he did not hold qualifications or necessary work experience is specified under the ANSCO Code.

13. The applicant provided a copy of his Diploma of Community Services from TAFE dated 18 November 2016.

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 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 Youth Worker.

17. At the time of the Department’s decision, the applicant did not have the necessary qualifications or work experience to meet the criteria. The applicant has since provided to the Tribunal a certificate of a Diploma of Community Services awarded to him on 18 November 2016.

18. The Tribunal has had regard to the indicative skill level and duties of the nominated occupation is set out in the ANZSCO which indicates that the occupation is a skill level 2 requiring a qualification of an Associate Degree, Advanced Diploma or Diploma. The applicant has now provided evidence that he has been granted a Diploma of Community Services

19. The Tribunal is satisfied that this Diploma indicates the applicant has the required skill level as suggested by ANZSCO. For these reasons, the Tribunal is satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation and satisfies the requirements of cl.457.223(4)(da).

20. The applicant has provided a number of references from his employers. These have praised his capacity to undertake the work as a youth worker. The Tribunal has also taken into account the evidence given by the applicant at the hearing. Although the applicant has not been working this area for more than three years, the Tribunal is satisfied the applicant has demonstrated the skills necessary to perform the work of a youth worker. Accordingly, the Tribunal finds the applicant meets the criteria in cl.457.223(4)(e).

21. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).

22. As the Tribunal has found that the applicant meets the above criteria for the grant of the visa, the applications for the second and third named visa applicants are remitted for reconsideration in full.

23. 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

24. 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) of Schedule 2 to the Regulations; and

    ·cl.457.223(4)(e) 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.