1508891 (Migration)

[2016] AATA 4590

1508891 (Migration) [2016] AATA 4590 (2 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yunjung Jung

CASE NUMBER:  1508891

DIBP REFERENCE(S):  BCC2015/834363

MEMBER:Mary-Ann Cooper

DATE:2 November 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 02 November 2016 at 9:19am

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 14 March 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 17 June 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that applicant had the skills, qualifications and employment background that the Minister considers necessary for the nominated occupation.  

5. The applicant appeared before the Tribunal on 25 October 2016 to give evidence and present arguments.

6. The applicant was represented in relation to the review by her registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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

9. 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 Property Manager.

10. 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.

11. 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).

12. As recorded in the delegate’s decision a copy of which was provided with the review application, the skill level for the applicant’s nominated occupation of Property Manager, as indicated in Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary for this occupation, is an AQF Certificate III including at least 2 years of on-the-job training, or an AQF Certificate IV or at least 3 years of relevant experience. The delegate found that the applicant did not have a Certificate III and, although she had undertaken some units of a Certificate IV, she had not completed it. Further, she did not have 3 years’ experience in the nominated occupation. Consequently the delegate found cl.457.223(4)(da) was not satisfied and the visa was refused.

13. Prior to the hearing the applicant provided a submission in which it was claimed that she did have the necessary skills by virtue of her completion of the REIV Agent’s representative course. As confirmed by the REIV website, the skills acquired through that course reflected those listed in ANZSCO for a Property Manager role. It was further submitted that the applicant’s Bachelor of Business Administration studies in subjects such as finance, investment, trade and economics equipped her with valuable skills transferrable to the role of Property Manager.

14. The submission noted that the applicant’s employment as an Assistant Property Manager with her nominating employer commenced on 1 November 2013 and her skills have developed throughout this employment such that she possesses the requisite skills, qualifications and employment background necessary to fill the role. The following documents were attached to the submission 

    ·Applicant’s Position Description.

    ·Academic transcript for her Bachelor of Business Administration.

    ·Agent’s Representative’s certificate from REIV and associated excerpt from its website.

    ·The applicant’s profile on her nominating employer’s website.

    ·The applicant’s business card.

    ·Exclusive leasing and managing authority.

    ·The applicant’s leased and current property listings.

    ·Her profile and current listings from the website realestate.com.au.

    ·Her ATO Notices of Assessment for 2014 and 2015.

15. The tribunal also later received documents evidencing the applicant’s attendance at various conferences and other training, as well as a letter of support from her nominating employer. That letter of support confirmed her employment as an Assistant Property Manager from 1 November 2013 and as a Property Manager from 1 July 2015. He duties in her role as an Assistant Property Manager are listed as follows: 

    ·Sourcing and securing tenants for properties – which included advertising and filling vacancies, processing applications, negotiating and completing leases, and securing deposits.

    ·Preparing properties for tenancy – inspecting vacant units, ensuring properties are ready for tenancy, preparing condition reports, co-ordinating tenants.

    ·Managing tenant relations – maintaining the property by investigating and resolving tenant complaints, enforcing rules of occupancy, completing repairs, conducting inspections.

    ·Managing the financial and administrative  leasing processes

16. As Property Manager her duties were  enlarged to include managing landlord and tenant relations which included the completion of rent reviews, preparing documents for and attending VCAT hearings, and co-ordinating , meeting and negotiating with new clients.

17. The reference also recommends the applicant as an employee who has demonstrated, among other things, continued high performance and a high level of customer service, has grown their client base, achieves her KPI’s every month, and is a top performer.

18. The ANZSCO occupational description for a Property Manager is as follows:

    UNIT GROUP 6121 REAL ESTATE SALES AGENTS

    
    REAL ESTATE SALES AGENTS sell, lease and manage commercial and private properties, and broker the buying and selling of businesses.

    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 Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    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.
    The occupation Real Estate Agency Principal (Aus) / Real Estate Agency Licensee (NZ) has 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)

    
    In New Zealand:

    NZ Register 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.

    Tasks Include:

    oaccepting and listing properties and businesses for sale and lease, conducting inspections, and advising buyers on the merits of properties and businesses and the terms of sale or lease

    oadvising vendors of sales and marketing options such as sale by auction and open house inspections

    ocataloguing and detailing land, buildings and businesses for sale or lease and arranging advertising

    oassessing buyers' needs and locating properties and businesses for their consideration

    ooffering valuations and advice for buying and selling properties and businesses, and structuring the terms of settlement

    ocollecting and holding rent monies from tenants, and remitting to owner on agreed basis

    omonitoring and addressing non-compliance with terms and conditions of tenancy and pursuing rental arrears

    odeveloping and implementing business plans, budgets, policies and procedures for the agency

    omay arrange finance, land brokerage, conveyancing and maintenance of premises

    
    Occupations:

    612111 Business Broker
    612112 Property Manager
    612113 Real Estate Agency Principal (Aus) / Real Estate Agency Licensee (NZ)
    612114 Real Estate Agent
    612115 Real Estate Representative

    
    ….

    
    612112 PROPERTY MANAGER

    
    Supervises the leasing of rental properties on behalf of owners. Registration or licensing may be required.

    Skill Level: 3
    Specialisation:

    Body Corporate Manager

19. It is not disputed that at the time of the delegate’s decision, the applicant did not have the relevant formal qualifications, and the delegate did not accept that there was adequate evidence that she had 3 years of relevant experience as a Property Manager.

20. Since that time, and as confirmed at the hearing, the applicant has continued to work in the role of Assistant Property Manager/Property Manager with the same nominating employer. As the tribunal understands the evidence, her duties throughout this time have not materially changed other than to have been expanded on her assuming the formal role of Property Manager.

21. Given the large amount of supporting documentation, and the applicant’s evidence at hearing, which the tribunal found to be credible and consistent, the tribunal is satisfied that the duties she performed in her role as Assistant Property Manager were entirely consistent with those indicated in the above ANZSCO description and commensurate with the role of a Property Manager. The tribunal also accepts that the applicant has undertaken these tasks for the period 1 November 2013 to 1 November 2016, that is, for three years.

22. On this basis, and having regard to the overall evidence before it, the tribunal is satisfied that the applicant’s additional experience, since the delegate’s decision, means that she now has at least three year’s relevant experience and consequently meets the required skill level for the role of Property Manager. 

23. For the above reasons it follows that the tribunal accepts that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of ‘Property Manager’.

24. The applicant therefore satisfies the requirements of cl.457.223(4)(da).

    CONCLUSION

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.

    Mary-Ann Cooper
    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.