1514716 (Migration)

[2016] AATA 4212

1514716 (Migration) [2016] AATA 4212 (21 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jian Li

CASE NUMBER:  1514716

DIBP REFERENCE(S):  BCC2015/555115

MEMBER:Christopher Smolicz

DATE:21 July 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 21 July 2016 at 3:17pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 October 2015 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 19 February 2015. At the time the 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).

3. The delegate refused to grant the visa on the basis that cl.457.223(4)(e) was not met.

4. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(da) or (e).

   Skills, qualification and employment background of the applicant

7. 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.

8. In this case the nominated occupation is Customer Service Manager (ANZSCO 149212).

9. The delegate required the applicant to demonstrate that he has the skills that are necessary to perform the occupation by providing evidence of a 457 visa skills assessment. The applicant did not respond to the request and the Department was not provided with the required skills assessment outcome. However, it should be noted that the Regulations in this context do not require formal or full skills assessment, as is required for other skilled permanent visa subclasses.

10. It is open to the Tribunal upon review to consider for itself whether the applicant should be required to demonstrate that he or she has the necessary skills.

11. On 23 June 2016 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act and invited him to provide information relevant to assessing whether he has the skills, qualifications and employment background that are necessary to perform the occupation for which you have been nominated. The letter advised the applicant that this may include, but is not limited to, evidence of formal skills assessment, evidence of qualifications that you hold, courses you have undertaken, employment contracts and detailed employment references.

12. The applicant’s agent responded to the request and provided the Tribunal with the applicant’s PAYG Payment Summary for the financial years ending 2014 and 2015, employment contract and job description. It was submitted by the agent that it was open to the Tribunal to be satisfied that the applicant has the skills, qualifications and employment background to perform the tasks of the nominated occupation based on the evidence before the Tribunal.

    Findings

13. The applicant 28 year old single male. He is a citizen of China who first arrived in Australia on 6 May 2009. Since arriving in Australia the applicant has held a series of student visas the last of which ceased on 30 November 2014. The applicant was approved for a 457 visa on 24 February 2014 and has worked as a customer service manager on a full time basis.

14. The applicant’s agent referred the Tribunal to the Department’s policy guidelines PAM 3 which states that in some circumstances, officers may exercise their discretion and not require a TRA 457 skills assessment from a visa applicant who would otherwise have been required under policy to do so. Officers may consider exercising this discretion if the visa applicant currently holds a 457 visa as a primary sponsored person and is currently employed in the nominated occupation in Australia.

15. 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.

16. 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).

17. According to ANZSCO a customer service manager comes within unit group 1492 Call or Contact Centre and Customer Service Manager. In Australia most occupations in this unit group have a level of skill commensurate with the following qualifications:

    ·AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) or

    ·At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

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

    odeveloping and reviewing policies, programs and procedures concerning customer relations and goods and services provided

    oensuring operational efficiency within a call centre

    oproviding direction and feedback to team members and assisting with recruitment

    omanaging, motivating and developing staff providing customer services

    oplanning and implementing after-sales services to follow up customer satisfaction, ensure performance of goods purchased, and modify and improve services provided

    oliaising with other organisational units, service agents and customers to identify and respond to customer expectations

    omay work in a call centre

19. The Tribunal has had regard to the Department’s file and notes that, at time of application, the applicant provided evidence that he obtained a Diploma of Management.

20. The applicant also provided the Department with a work reference and resume. According to the resume and reference the applicant has worked in the position of Customer Service Manager since arriving in Australia for the sponsoring employer. The applicant also provided an employment contract with Evershine Property Services dated 15 September 2013.

21. The Tribunal notes that in the period 24 February 2014 to 24 February 2015 the applicant has held a 457 and worked in the nominated occupation of Customer Service Manager. The applicant is now seeking approval of a 457 visa with the same sponsoring employer and for the same occupation.

22. Based on the material provided to the Tribunal, it is satisfied that the applicant has a Diploma of Management issued to him in 2013.  He therefore holds one of the qualifications listed in ANZSCO.  The Tribunal is satisfied that this is relevant to the nominated occupation.

23. The Tribunal is therefore satisfied that he has the skills, qualifications and employment background to perform the tasks of the nominated occupation, and finds that he satisfies cl.457.223(4)(da).

24. Given this finding, the Tribunal considers it unnecessary to require the applicant to demonstrate he has the required skills, and therefore considers that he is not required to satisfy cl.457.223(4)(e).

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

26. 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

27. The Tribunal remits the application for Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(da) of Schedule 2 to the Regulations.

    Christopher Smolicz
    Member