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

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).
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).
The delegate refused to grant the visa on the basis that cl.457.223(4)(e) was not met.
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.
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 applicant meets the requirements of cl.457.223(4)(da) or (e).
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 Customer Service Manager (ANZSCO 149212).
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.
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.
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…

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.

Continue reading 1514716 (Migration)

Details

AGLC: 1514716 (Migration) [2016] AATA 4212
Case: [2016] AATA 4212
Decision Date: 21 July 2016

CaseChat Overview and Summary

This matter concerned an application for a Subclass 457 visa, where the central dispute revolved around whether the applicant met the requirements of clause 457.223(4)(da) or (e) of the Regulations, pertaining to the applicant's skills, qualifications, and employment background for the nominated occupation of Customer Service Manager (ANZSCO 149212). The case was heard by Christopher Smolicz.

The legal issues before the court were whether the applicant possessed the necessary skills, qualifications, and employment background to perform the tasks of a Customer Service Manager, as required by cl.457.223(4)(da), and whether, if required by the Minister, the applicant could demonstrate the skills necessary to perform the occupation in the manner specified, as per cl.457.223(4)(e). The delegate had initially requested a 457 visa skills assessment, which the applicant did not provide. However, the Tribunal noted that the Regulations did not mandate a formal or full skills assessment in this context and that it was open to the Tribunal to consider the applicant's skills independently.

The Tribunal, having invited the applicant to provide further information under s.359(2) of the Act, received evidence including PAYG Payment Summaries, an employment contract, and a job description. The applicant's agent argued that this evidence was sufficient for the Tribunal to be satisfied of the applicant's suitability. The Tribunal acknowledged that departmental policy (PAM 3) allowed for discretion in not requiring a formal skills assessment in certain circumstances, such as when the applicant already held a 457 visa and was employed in the nominated occupation in Australia.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria under cl.457.223(4)(da) of Schedule 2 to the Regulations, and the application for a Temporary Business Entry (Class UC) visa was remitted for reconsideration by the Minister to consider 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 applicant meets the requirements of cl.457.223(4)(da) or (e).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 Customer Service Manager (ANZSCO 149212). 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. 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. 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. 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 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. 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.

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 applicant meets the requirements of cl.457.223(4)(da) or (e).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 Customer Service Manager (ANZSCO 149212). 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. 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. 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. 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 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. 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.

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 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 SmoliczMember

Ratio Decidendi

Legal Principle Established

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