1509942 (Migration) - [2016] AATA 4675

1509942 (Migration) [2016] AATA 4675 (18 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Scarlet Isabella Harris
CASE NUMBER:  1509942
DIBP REFERENCE(S):  BCC2015/1337037
MEMBER:Mary-Ann Cooper
DATE:18 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 18 November 2016 at 4:55pm

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 8 May 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 6 July 2015 on the basis that cl.457.223(4)(da) was not met because he was not satisfied that the applicant had the skills, qualifications and employment background to perform the tasks of the nominated position.
The applicant appeared before the Tribunal on 8 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from her nominating employer.
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 Recruitment Consultant.
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…

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.

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Details

AGLC: 1509942 (Migration) [2016] AATA 4675
Case: [2016] AATA 4675
Decision Date: 18 November 2016

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant against the refusal of a Subclass 457 visa. The central dispute revolved around whether the applicant possessed the requisite skills, qualifications, and employment background to perform the tasks of a nominated occupation, specifically that of a Recruitment Consultant, as required by clause 457.223(4)(da) of the relevant regulations. The Tribunal was tasked with determining if the applicant's prior work experience met the criteria for this nominated occupation.

The legal issues before the Tribunal were twofold: firstly, whether the applicant's employment as an Account Manager/Recruitment Adviser between September 2011 and January 2014, and as a Personal Assistant/HR Advisor from March 2008 to June 2010, constituted sufficient relevant experience for the nominated role of Recruitment Consultant. Secondly, the Tribunal had to consider the guidance provided by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for the nominated occupation, which generally requires a Bachelor degree or higher qualification, or at least five years of relevant experience. The Tribunal was also guided by the principle established in *Joshi v MIMIA*, which mandates an assessment of an applicant's attributes and skills and their application in the workplace for remuneration, rather than a narrow matching exercise.

The Tribunal reasoned that while ANZSCO indicated a Bachelor degree or five years of relevant experience was typically required for a Recruitment Consultant, the determination of an application necessitates more than a simple comparison with the ANZSCO definition. The delegate had found the applicant's experience between 2011 and 2014 insufficient and her earlier experience, though relevant, fell short of the minimum five-year period. However, the Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant be considered to meet the criteria under clause 457.223(4)(da). The Tribunal's decision was to remit the application for the visa to the Minister for reconsideration of the remaining criteria for a Subclass 457 visa.

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 Recruitment Consultant. 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 Recruitment Consultant comes within Unit group 2231 “Human resource Professionals”. In Australia most occupations in this unit group have a level of skill commensurate with the following qualifications:Indicative Skill Level:In Australia and New Zealand: Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1). The tasks for this unit group listed in ANZSCO include: The tribunal has had regard to the Department’s file and notes that, at time of application, the applicant provided work references confirming that she had worked as an Account Manager/Recruitment Adviser from September 2011 to January 2014 and a Personal Assistant/HR Advisor from March 2008 to June 2010. As recorded in the delegate’s decision, a copy of which was provided with the review application, ANZSCO indicates that the role of Recruitment Consultant requires a Bachelor degree or higher qualification or at least 5 years relevant experience. The delegate was not satisfied that the role performed by the applicant between 2011 and 2014 provided her with the relevant experience for the nominated role of Recruitment Consultant. While accepting that her experience in her employment from 2008 to 2010 was relevant experience, it was below the minimum required period ( i.e. less than 5 years). In this context the delegate refused the visa application on the basis that the applicant did not meet cl.457.223(4)(da).

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 Recruitment Consultant. 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 Recruitment Consultant comes within Unit group 2231 “Human resource Professionals”. In Australia most occupations in this unit group have a level of skill commensurate with the following qualifications:Indicative Skill Level:In Australia and New Zealand: Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1). The tasks for this unit group listed in ANZSCO include: The tribunal has had regard to the Department’s file and notes that, at time of application, the applicant provided work references confirming that she had worked as an Account Manager/Recruitment Adviser from September 2011 to January 2014 and a Personal Assistant/HR Advisor from March 2008 to June 2010. As recorded in the delegate’s decision, a copy of which was provided with the review application, ANZSCO indicates that the role of Recruitment Consultant requires a Bachelor degree or higher qualification or at least 5 years relevant experience. The delegate was not satisfied that the role performed by the applicant between 2011 and 2014 provided her with the relevant experience for the nominated role of Recruitment Consultant. While accepting that her experience in her employment from 2008 to 2010 was relevant experience, it was below the minimum required period ( i.e. less than 5 years). In this context the delegate refused the visa application on the basis that the applicant did not meet cl.457.223(4)(da).

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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