1509724 (Migration)

[2016] AATA 3574

1509724 (Migration) [2016] AATA 3574 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Matteo Marco Cieri

CASE NUMBER:  1509724

DIBP REFERENCE(S):  BCC2015/671581

MEMBER:Fraser Syme

DATE:18 March 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 18 March 2016 at 11:23am

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 2 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.

3. The delegate refused to grant the visa on 30 June 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nomination occupation of management consultant.

4. The applicant appeared before the Tribunal on 2 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Alessandri. She is a director of Sale e Pepe Consulting Pty Ltd (“SPC”), the sponsoring employer seeking to nominate the applicant as a management consultant.

5. The applicant was represented in relation to the review by his registered migration agent who attended the hearing in person. The migration agent provided submissions prior to the hearing attaching a large bundle of documents. It is convenient to note here that the Tribunal agreed to the migration agent’s request to provide post hearing submissions on or before 8 January 2016 with a view to the Tribunal determining whether or not it would request the applicant to obtain a formal skills assessment to demonstrate his skills pursuant to cl.457(4)(e). The migration agent provided a bundle of additional documents on 23 December 2015, including business plans prepared by the applicant and reference letters from his former clients.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant has demonstrated that he has the skills, that are necessary to perform the occupation, in the manner specified by the Tribunal.

   Skills, qualification and employment background of the applicant

8. Clause 457.223(4)(e) states, 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. As noted above, in this case the nominated occupation is management consultant.

9. Prior to the hearing, the applicant provided reference letters from a number of businesses in Australia and Italy at which he has worked in the past. These generally refer to him being a management consultant and were quite vague and similarly worded. He provided too contracts between him or SPC and clients at which he provided management consultant services. All of the businesses are either restaurants or coffee shops. Also provided was a business plan of SPC and promotional materials of SPC. The migration agent’s submissions provided a rough calculation of the accumulated number of years the applicant ‘worked’ at those businesses and at SPC to surmise the applicant had more than 10 years of work experience as a management consultant.

10. At the hearing, much of discussion between the applicant and the Tribunal centred on whether he met the requirements of cl.457.223(da), namely that he had the skills, qualifications and employment background necessary to perform the tasks of a management consultant. It told the applicant the Tribunal would have regard to the description of management consultant in ANZSCO. It noted ANZSCO was not part of the legislation, but it was a useful guideline. It noted too that the relevant information from ANZSCO was that the usual qualifications necessary to perform the tasks of a management consultant required a bachelor degree or in lieu of that formal qualification, at least 5 years of relevant work experience. The applicant agreed that he did not have a bachelor degree, but believed he had more than 5 years of relevant work experience.

11. The Tribunal discussed in detail the applicant’s work at each of the business in Italy and Australia. He provided a coherent and thorough account of what he did at each business. His emphasised a distinction between ‘working’ for the businesses in Italy and being ‘employed’ by the businesses in Italy. He worked, but was not employed by the businesses in Italy. The Tribunal understands the distinction he was seeking to draw, but considers his experience at the businesses in Italy is equally relevant to its assessment of whether he meets the requirements of cl.457.223(4)(da) whether he ‘worked’ or was ‘employed’. What else was very obvious to the Tribunal from his evidence was that the applicant did not work fulltime throughout the claimed periods he worked at any particular business. The nature of his work included a preliminary, intense period of contact hours where the applicant would observe the business, obtain data, communicate with the principals of the business and analyse the goals of the business and the need for changes. Next would be a period of instigating and monitoring these changes, which led to a decreasing level of contact hours with the business as those changes were instigated.

12. The Tribunal expressed the view the guidelines in ANZSCO did not require the applicant to have five years or work experience as a management consultant. Rather, the Tribunal could have regard to his work experience regardless of his actual occupation, so long as that work experience was relevant to the tasks of a management consultant. The Tribunal further commented, it was not focusing on the title of his occupation, rather, his tasks and duties of his former occupations. The Tribunal could see a relevance in all of the applicant’s past employment background in hospitality as feeding into his body of knowledge about managing hospitality businesses – that would extend too to his former work in Italy both in the kitchen, as well as his prior work as a restaurant manager. With that view, it was clear to the Tribunal that the applicant had more than 5 years of relevant work experience. However, the Tribunal had another concern regarding whether the nominated position was genuinely that of a management consultant as required by cl.457.223(4)(d)(ii), or some other occupation. The Tribunal turns its attention to an assessment of that issue.

13. The Tribunal told the applicant at the hearing, having regard to his reference letters, consulting contract and business plan, the Tribunal was unsure whether the tasks of the nominated position were genuinely that of a management consultant, or was it some other occupation. Those documents indicated to the Tribunal, the nature of the nominated position was to assist restaurants and other hospitality businesses to manage their businesses better. The Tribunal was mindful while SPC offered consulting services to its client’s about the management of its client’s businesses, that did not mean the tasks of the nominated position were that of a management consultant. Having regard to the indicative tasks of a management consultant in ANZSCO, the Tribunal was uncertain that the nature of SPC’s clients had the complexity and diversity that would usually be the type of business that required a management consultant. The ANSCO description reflects that is in generally large, complex businesses and government agencies that would engage a management consultant. The Tribunal further commented while it may be the case some management consultants specialise in specific industry types, many management consultants would engage with clients across diverse industries.

14. The applicant replied his duties involve a wide range of skills of collecting data, analysing needs, devising solutions, then implementing, monitoring and revising those solutions. He gave evidence too of once using his skills with a car repair business in Italy. Ms Alessandri’s evidence was that the applicant uses the same strategies as management consultants would use for larger, more complex businesses. The migration agent submitted it may be the case that SPC’s clients are not large, complex businesses, the tasks of the nominated position nonetheless are those of a management consultant. The migration agent requested time to provide post-hearing submissions with supporting evidence to the issue of whether the nominated position was genuinely that of a management consultant.

15. At this point in the hearing, the Tribunal discussed with the applicant its power under cl.457.223(4)(e) to invite the applicant to demonstrate he has the skills of a management consultant. The Tribunal was mindful so requesting the applicant to demonstrate his skills was only indirectly relevant to whether the applicant meets the requirements of cl.457.223(4)(d)(ii) and (da). However, were it the case the relevant skills assessing authority (VETASSESS) had regard to the applicant’s employment background with SPC since February 2015 (as well as his earlier employment background) and issued a positive skills assessment to the applicant, that would be evidence the Tribunal could take into account as weighing towards it being satisfied the nominated occupation was genuinely that of a management consultant. Conversely, a negative skills assessment would be evidence which would weigh against the Tribunal being satisfied the nominated occupation was that of a management consultant. The applicant indicated his willingness to obtain a skills assessment from VETASSESS if the Tribunal required him to do so.

16. The Tribunal concluded the hearing on the basis it would await the post hearing submission from the migration agent. If after considering that information the Tribunal remained unsatisfied the applicant met cl.457.223(4)(da) and/or cl.457.223(4)(d)(ii), it would then consider further whether to require the applicant to demonstrate his skills by way of a formal skills assessment under cl.457.223(e).

17. The Tribunal reviewed the post-hearing submissions of 23 December 2015, including the reference letters from the SPC’s clients and the sample business plans he had prepared for them. They were consistent with his evidence at the hearing and similar to material already before the Tribunal. The Tribunal was unable to reach a state of satisfaction the applicant met the requirements for the visa and on 13 January 2016, it invited the applicant to obtain a formal skills assessment of his skills as a management consultant. It requested the applicant provide evidence in writing of his doing so within 28 days. The applicant did not respond within the time allowed for him to provide evidence of applying for a skills assessment. Tribunal staff contacted the applicant’s migration agent on 14 March 2016 regarding the applicant’s intentions as to obtaining a skills assessment as required by the Tribunal. On 15 March 2016, the migration agent notified the Tribunal in writing the applicant did not intend to apply for a skills assessment and requested the Tribunal make a decision on the evidence before it.

18. The Tribunal has required the applicant to demonstrate he has the skills necessary to perform the nominated occupation by means of a skills assessment, Contrary to his indications during the hearing, the applicant has since determined not to obtain a skills assessment. The Tribunal finds the applicant has not demonstrated his skills in the method required by the Tribunal. It follows the applicant does not meet the requirement of cl.457.223(4)(e).

19. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams. As the applicant does not meet an essential criterion for the grant of the visa, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Fraser Syme
    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.