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

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 8 May 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 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.

5. 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.

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 Recruitment Consultant.

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. 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).

13. The tasks for this unit group listed in ANZSCO include:

UNIT GROUP 2231 HUMAN RESOURCE PROFESSIONALS

HUMAN RESOURCE PROFESSIONALS plan, develop, implement and evaluate staff recruitment, assist in resolving disputes by advising on workplace matters, and represent industrial, commercial, union, employer and other parties in negotiations on issues such as enterprise bargaining, rates of pay and conditions of employment.

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).

Tasks Include:

o    arranging for advertising of job vacancies, interviewing and testing of applicants, and selection of staff

o    maintaining personnel records and associated human resource information systems

o    providing advice and information to management on workplace relations policies and procedures, staff performance and disciplinary matters

o    arranging the induction of staff and providing information on conditions of service, salaries and promotional opportunities

o    receiving and recording job vacancy information from employers such as details about job description, wages and conditions of employment

o    providing information on current job vacancies in the organisation to employers and job seekers

o    undertaking negotiations on terms and conditions of employment, and examining and resolving disputes and grievances

o    studying and interpreting legislation, awards, collective agreements and employment contracts, wage payment systems and dispute settlement procedures

o    developing, planning and formulating enterprise agreements or collective contracts such as productivity-based wage adjustment procedures, workplace relations policies and programs, and procedures for their implementation

o    overseeing the formation and conduct of workplace consultative committees and employee participation initiatives

Occupations:

223111 Human Resource Adviser
223112 Recruitment Consultant
223113 Workplace Relations Adviser

223112 RECRUITMENT CONSULTANT

Alternative Title:

Employment Consultant (Aus)

Interviews applicants to determine their job requirements and suitability for particular jobs, and assists employers to find suitable staff.

Skill Level: 1

1. 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.

2. 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).

3. Prior to the hearing the applicant, her agent and her current employer provided written submissions to the tribunal. Most relevantly, her current employer advised that the applicant had been working with the organisation, a recruitment agency, as a recruitment consultant, for 20 months.

4. At the hearing the applicant outlined her relevant experience and her current role. She claimed that her experience in the UK, as confirmed by her references, involved a degree of recruitment and building up the businesses of the firms for which she worked.  Since coming to Australia she said she had worked in the retail sector, six months for Myer and then a further 4 months with Elizabeth Arden. She claimed her retail experience in these roles, in combination with her UK experience, was responsible for her recruitment into the nominated position. She said she started her employment with Quest (the nominating employer) as a Recruitment Consultant in February 2015 and has been there since. Addressing the ANZSCO task list, she outlined how she undertook many of the duties such as advertising of job vacancies, maintaining records, providing advice and information to clients and negotiating new business for the organisation. She said she uses her retail experience every day in her work insofar as she has a full understanding of what retail work requires and because of this has credibility with the clients. In conducting interviews and assessing and sourcing candidates for her employer she claimed she has built up a database of over 1000 contacts. While some of the tasks on the ANZSCO list are clearly irrelevant to the role undertaken, the tribunal is satisfied that overall the applicant has gained relevant experience in the role consistent with that of a Recruitment Consultant as listed in ANZSCO.

5. The applicant’s evidence in this regard was strongly supported by her employer. She told the tribunal that she had been in the recruitment field since 1987 and explained the difficulties she had with attracting and retaining a consultant with the requisite background and knowledge in retailing. She gave evidence of high turnovers in such roles and the high level of competition between agencies (over 4000 competitors/recruitment agencies in Victoria). She claimed that graduates are of little value in the role because they frequently did not have the communication and marketing skills or the industry and recruitment knowledge required. She maintained that the applicant, because of her experience, had all these qualities. She outlined a typical day for the applicant which included some of the tasks listed in ANZSCO but, in relation to the Recruitment Consultant description specifically, insisted that it involved much more than this, also requiring an ability to network and find and retain the clients. She was obviously impressed with the network of contacts developed and maintained by the applicant, largely through her past experience in the field. She said the applicant has one report and reports directly to her, the business owner/manager. She emphasised the high cost to her business if she was required to recruit someone to replace the applicant and that she doubted she would find someone with her level of experience, knowledge and commitment to the role.

6. The applicant does not have a bachelor degree and in this context the tribunal has considered her relevant experience in assessing whether she meets cl.457.223(4)(da). The  tribunal accepts, as did the delegate, that the applicant’s role over the period March 2008 to June 2010 was relevant to her experience as a Recruitment Consultant. While her reference for the period from 2011 to 2014 demonstrates a relatively small role in recruitment and staff management, the tribunal notes that it is a large department store, and therefore did contribute to the applicant’s knowledge and skills in the retailing industry. On this basis, and given her current employer’s strong endorsement of the applicant’s UK network and its value to her current role, the tribunal accepts that this position was also relevant to the assessment of her skills and experience in her current nominated position. Further, on the basis of the strong and credible oral evidence provided, it also accepts that her retail experience in Australia, at Myer and Elizabeth Arden, equipped her with skills and experience relevant to the role. Combining these periods of time, with her current experience with her nominating employer, the tribunal accepts that the applicant has in excess of 5 years of relevant experience as indicated by the ANZSCO skill level.

7. It follows that the tribunal is satisfied that, although the applicant does not hold directly relevant formal qualifications in this area, she has developed skills and knowledge to an equivalent level through her substantial work experience.

8. This being the case, the tribunal finds that the applicant has the skills, qualifications and employment background which it considers necessary to perform the occupation of Recruitment Consultant. This means she meets the provision at cl.457.223(4)(da).

9. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

   CONCLUSION

10. 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

11. 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.