1516345 (Migration)

[2016] AATA 4513

1516345 (Migration) [2016] AATA 4513 (6 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aria Vahabzadeh

CASE NUMBER:  1516345

DIBP REFERENCE(S):  BCC2015/2366353

MEMBER:Glen Cranwell

DATE:6 October 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 06 October 2016 at 11:22am

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 17 August 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 November 2015 on the basis that cl.457.223(4)(da) was not met.

5. The applicant appeared before the Tribunal on 6 October 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. 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 this case the nominated occupation is Accommodation and Hospitality Manager nec.

9. The Tribunal has considered the indicative skill level and duties description for a Accommodation and Hospitality Manager nec as set out in ANZSCO which states:

   Indicative Skill Level:
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
   In Australia:

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

   
   In New Zealand:

   NZ Register Diploma (ANZSCO Skill Level 2)

   
   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.

   Registration or licensing may be required.

10. It is not in dispute that the applicant does not have an AQF diploma level qualification or higher.

11. The applicant provided the Tribunal with a copy of his curriculum vitae.  The Tribunal accepts that the following aspects of his work experience are relevant to the occupation of Accommodation and Hospitality Manager nec:

    ·Receptionist and Onsite Night Manager at Mainbeach Backpackers from October 2013 to January 2014, and April 2014 to June 2014;

    ·Accommodation and Hospitality Manager at Backpackers Inn from December 2014 to the present.

12. This work experience totals 28 months.

13. The applicant did not dispute that his experience as a cucumber picker, travel agent and weekend assistant manager at his father’s business (MV Krawatten) were not relevant to the nominated occupation.

14. The issue for the Tribunal to consider is whether his apprenticeship in Germany as a Human Resources Service Management Assistant from September 2011 to July 2013 is relevant experience.  His training reference stated that his apprenticeship entailed the following tasks:

    ·handling of the administrative tasks connected with the provision of employees,

    ·acquisition of open jobs and new hiring companies,

    ·selection of human resources to occupy open jobs,

    ·consultancy discussions with hiring companies and unemployed,

    ·bringing about and maintaining contact to hirers for work administration and other authorities,

    ·support and management of the external workers from the job application discussion through to take-over.

15. The applicant’s submission at the hearing is that running a hostel involves managing staff and workplace health and safety responsibilities, both of which he was trained in during his apprenticeship.

16. At the hearing, the Tribunal explained that a Sales and Marketing Manager might claim his or her experience was relevant to the occupation of Accommodation and Hospitality Manager nec, on the basis that it was necessary to promote and market the accommodation venue.  Alternatively, a Finance Manager might claim his or her experience was relevant on the basis that the accommodation venue needs to set rates and receives money.  In the same way that the Tribunal considers such experience would be of only peripheral relevance to the occupation of Accommodation and Hospitality Manager nec, the Tribunal considers the applicant’s training as a Human Resource Manager is also of only peripheral relevance to the nominated occupation.  While there is some overlap, the focus of the position is materially different.  To put it another way, the applicant’s experience in human resources can be contrasted with his positions in accommodation and hospitality management at Mainbeach Backpackers and Backpackers Inn as set out above; on their face the latter are clearly relevant while the former is only of peripheral relevant.  There is nothing in the applicant’s training reference letter relating specifically to accommodation and/or hospitality.

17. Bearing in mind that ANZSCO is only a guide, the Tribunal has considered whether the applicant’s 28 months of relevant experience is sufficient.  However, the Tribunal considers that this falls too far short of the 36 month guideline to be sufficient to substitute for a formal qualification.

18. For these reasons the applicant does not satisfy the requirements of cl.457.223(4)(da).

19. 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

20. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    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

    (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.