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

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 14 March 2015.
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 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.
The applicant appeared before the Tribunal on 25 October 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by her 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 Property 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…

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 1508891 (Migration)

Details

AGLC: 1508891 (Migration) [2016] AATA 4590
Case: [2016] AATA 4590
Decision Date: 2 November 2016

CaseChat Overview and Summary

This matter concerned an application for a Subclass 457 visa, where the primary dispute revolved around whether the applicant met the requirements of clause 457.223(4)(da) of the Regulations, which mandates that an applicant possess the necessary skills, qualifications, and employment background for the nominated occupation. The nominated occupation was Property Manager. The Tribunal was required to determine if the applicant's existing skills, qualifications, and employment history were sufficient to satisfy this criterion, particularly in light of the delegate's previous finding that she did not meet the ANZSCO skill level requirements.

The court was tasked with assessing whether the applicant's completion of the REIV Agent's Representative course, her Bachelor of Business Administration studies, and her employment as an Assistant Property Manager provided her with the requisite skills, qualifications, and employment background for the nominated role. The Tribunal was guided by the principle established in *Joshi v MIMIA*, which dictates that the assessment requires an ascertainment of the applicant's attributes and skills and how they are applied in the workplace for remuneration, rather than a narrow matching process against the ANZSCO definition.

The Tribunal concluded that the matter should be remitted for reconsideration. It found that the applicant's submission, supported by various documents including her position description, academic transcript, REIV certificate, and evidence of her property listings and employment, warranted further consideration. Consequently, the Tribunal remitted the application for a Temporary Business Entry (Class UC) visa for reconsideration, directing that the visa applicant meets the criteria under clause 457.223(4)(da).

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 Property 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). 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. 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. 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.

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 Property 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). 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. 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. 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.

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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