1508200 (Migration) - [2016] AATA 4588

1508200 (Migration) [2016] AATA 4588 (27 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jason Williams
CASE NUMBER:  1508200
DIBP REFERENCE(S):  BCC2014/3387371
MEMBER:Mary-Ann Cooper
DATE:27 October 2016
PLACE OF DECISION:  Melbourne
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 October 2016 at 8:46am

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 10 December 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 visa on 29 May 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.
The applicant appeared before the tribunal on 25 October 2016 to give evidence and present arguments. The tribunal also received oral evidence from his employer’s General Manager.
The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
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 Customer Service Manager.
There is no threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, although in determining this question, the tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1508200 (Migration)

Details

AGLC: 1508200 (Migration) [2016] AATA 4588
Case: [2016] AATA 4588
Decision Date: 27 October 2016

CaseChat Overview and Summary

This matter concerned an application for a Subclass 457 visa, where the primary dispute revolved around whether the applicant possessed the requisite skills, qualifications, and employment background to perform the nominated occupation of Customer Service Manager, as stipulated by clause 457.223(4)(da) of the relevant regulations. The case was heard by the Tribunal.

The central legal issue before the Tribunal was to determine if the applicant met the criteria outlined in clause 457.223(4)(da), which requires the applicant to demonstrate that they have the necessary skills, qualifications, and employment background for the nominated occupation. Additionally, the Tribunal considered clause 457.223(4)(e), which mandates that if required by the Minister, the applicant must prove they possess the skills necessary to perform the occupation in the manner specified by the Minister. The Tribunal was guided by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for Customer Service Managers, noting that a narrow matching process with ANZSCO definitions was insufficient, and that the approach should ascertain the applicant's attributes and how they are applied in the workplace for remuneration, as established in *Joshi v MIMIA*.

The Tribunal acknowledged that while ANZSCO provides guidance for the Customer Service Manager occupation, indicating a skill level commensurate with an AQF Associate Degree, Advanced Diploma, or Diploma, or at least three years of relevant experience, the determination required more than a simple comparison. The applicant had provided work references confirming employment as a Customer Service Manager in England for periods between September 2009 and August 2011, and April 2012 to September 2013. Despite this evidence, the Tribunal concluded that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant meets the criteria under clause 457.223(4)(da) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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 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 Customer Service Manager. There is no threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, although in determining this question, the tribunal may be guided by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for occupations nominated on or after 1 July 2010. The tribunal notes, however, that the determination of each application requires more than a narrow matching process between an applicant's tasks and ANZSCO occupational definition. In an earlier version of this clause, the Court in Joshi v MIMIA held the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[1] [1] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005). According to ANZSCO a Customer Service Manager comes within Unit group 1492 “Call or Contact Centre and Customer Service Manager”. In Australia most occupations in this unit group have a level of skill commensurate with the following qualifications:·AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) or·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. The tasks for this unit group listed in ANZSCO include:odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided oensuring operational efficiency within a call centre oproviding direction and feedback to team members and assisting with recruitment omanaging, motivating and developing staff providing customer services oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided oliaising with other organisational units, service agents and customers to identify and respond to customer expectations omay work in a call centre The Tribunal has had regard to the Department’s file and notes that, at time of application, the applicant provided work references confirming that he had worked as a Customer Service Manager in two organisations in England for the period covering September 2009 to August 2011 and April 2012 to September 2013.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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 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 Customer Service Manager. There is no threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, although in determining this question, the tribunal may be guided by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for occupations nominated on or after 1 July 2010. The tribunal notes, however, that the determination of each application requires more than a narrow matching process between an applicant's tasks and ANZSCO occupational definition. In an earlier version of this clause, the Court in Joshi v MIMIA held the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[1] [1] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005). According to ANZSCO a Customer Service Manager comes within Unit group 1492 “Call or Contact Centre and Customer Service Manager”. In Australia most occupations in this unit group have a level of skill commensurate with the following qualifications:·AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) or·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. The tasks for this unit group listed in ANZSCO include:odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided oensuring operational efficiency within a call centre oproviding direction and feedback to team members and assisting with recruitment omanaging, motivating and developing staff providing customer services oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided oliaising with other organisational units, service agents and customers to identify and respond to customer expectations omay work in a call centre The Tribunal has had regard to the Department’s file and notes that, at time of application, the applicant provided work references confirming that he had worked as a Customer Service Manager in two organisations in England for the period covering September 2009 to August 2011 and April 2012 to September 2013.

Decision

Reasons for decision

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 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.Mary-Ann CooperMemberATTACHMENT - 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.

Ratio Decidendi

Legal Principle Established

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