1510835 (Migration)

[2016] AATA 3572

1510835 (Migration) [2016] AATA 3572 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Lien Huong Nguyen
Mr Minh Quan Ngo

CASE NUMBER:  1510835

DIBP REFERENCE(S):  BCC2014/3420206

MEMBER:Glen Cranwell

DATE:18 March 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 18 March 2016 at 11:05am

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 12 December 2014.

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 visas on 23 July 2015 on the basis that cl.457.223(4)(e) was not met.

5. The applicants appeared before the Tribunal on 18 March 2016 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent.  The representative did not attend the hearing.  The Tribunal notes that the representative is a director of the sponsor/nominator.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant (the applicant) meets the requirements of cl.457.223(4)(e).

   Skills, qualification and employment background of the applicant

9. 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 Program or Project Administrator (ANZSCO 5111-12).

10. The delegate required the applicant to demonstrate that she has the skills that are necessary to perform the occupation by providing evidence of a 457 visa skills assessment.

11. On 1 June 2015, the applicant provided the Department with an assessment from Vetassess which stated that she received a negative skills assessment outcome.

12. At the hearing, the applicant confirmed that she did not have a positive skills assessment.

13. The Tribunal asked the applicant why it should not require her to demonstrate that she has the skills that are necessary to perform the occupation by providing evidence of a 457 visa skills assessment.  The applicant stated that “even though a skills assessment is the most objective way of assessing skills …”  She then paused, and explained that she did not think it would be this complicated.  She and her family want to stay in Australia for a few years to obtain work experience after completing her education here.  She wants a job, her sponsor/nominator wants her to work for him.  They satisfy each other’s needs.  She did not think about the legalities.

14. The Tribunal asked the applicant whether she thought she should not be required to demonstrate that she has the skills that are necessary to perform the nominated occupation.  The applicant answered, “no”.

15. The Tribunal asked the applicant how she thought she should be required to demonstrate that she has the skills that are necessary to perform the nominated occupation, if not by a skills assessment.  The applicant stated that she was not sure.  She obtained her Diploma of Project Management in August 2014.  She has pre-qualification experience in Vietnam, which is detailed in her resume.  She has post-qualification experience of about 10 months, which has been limited due to her visa conditions.

16. The representative’s written  quoted the following except from the Department’s Procedure and Advice Manual in his submissions dated 7 December 2015:

    Applicants would not meet 457.223(2)(d) or 457.223(4)(e) if they:

    ·Have been requested to demonstrate they have the skills to perform the nominated occupation

    ·Have been given a specified manner in which to demonstrate their skills (for example, a TRA 457 skills assessment) and

    ·Do not provide evidence of having completed this assessment.

    Applicants would also not meet 457.223(2)(d) or 457.223(4)(e) if they provide the outcome of a TRA 457 skills assessment or a skilled migration skills assessment but:

    ·The skills assessment outcome finds the applicant does not have the skills consistent with the nominated occupation or

    ·The skills assessment outcome finds that the applicant has skills in an occupation less-skilled than the nominated occupation or

    ·The applicant's skills are clearly inconsistent with the nominated occupation.

    Officers should have regard to all the information provided by the applicant in their visa application in regard to their abilities, including formal qualifications, training, experience, special skills and other personal attributes.

17. He also noted that:

    It is Departmental policy that all applicants nominated in the occupations of Program and Project Administrator and Specialist Managers nec will be required to demonstrate that they meet Regulation 457.223(2)(d) or 457.223(4)(e) by providing evidence of having completed a skills assessment for migration purposes. [footnote omitted]

18. Given:

    ·     that the Department requires all Program and Project Administrators to satisfy cl.457.224(4)(e) by providing a skills assessment; and

    ·     the applicant’s acknowledgement that a skills assessment is the most objective way of assessing skills,

    the Tribunal considers that the applicant should be required to demonstrate that she has the skills that are necessary to perform the occupation by providing a positive skills assessment in the present case.

19. The applicant has not provided a positive skills assessment.  Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of cl.457.223(4)(e).

20. The Tribunal notes that the representative submitted that the applicant’s skills should be assessed on the basis of her “formal qualifications, training, experience and personal attributes”.  Obviously, the representative has put forward a basis which he thinks would be satisfied by the applicant.  The Tribunal observes that c.457.223(4)(e) requires the applicant to demonstrate her skills “in the manner specified by the Minister [or, in his place, the Tribunal]”, not the representative.  For the reasons set out above, the Tribunal has decided to specify that the applicant’s skills be demonstrated in a way other than as suggested by the representative.

21. 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.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Glen Cranwell
    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.