BERI (Migration)

BERI (Migration) [2017] AATA 860 (30 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr NITIN BERI
Mrs ADITI BERI
CASE NUMBER:  1514159
DIBP REFERENCE(S):  bcc2015/1010686
MEMBER:Miriam Holmes
DATE:30 May 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the first named applicant a Temporary Business Entry (Class UC) visa.
The Tribunal has no jurisdiction in relation to the review application made by Mrs Beri.

Statement made on 30 May 2017 at 8:43am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Nomination by standard business sponsor – Skills, qualification and employment background – Cook – Nomination expired – Sponsor no longer approved – Insufficient evidence of skills, qualifications and employment background

LEGISLATION
Migration Act 1958, ss 65, 338, 347, 348, 359AA
Migration Regulations 1994, r 2.75, r 4.02(4), r 5.02(k), Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicants applied for the visa on 1 April 2015.
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.
The delegate refused to grant the visas on 6 October 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, namely a cook.
Mr Beri (the applicant) appeared before the Tribunal on 13 February 2017 on behalf of both applicants to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) and (da).
Requirement for an approved nomination
Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
At the commencement of the hearing, the applicant provided the Tribunal with a copy of the department notice dated 10 August 2015 stating that Rao Madhukar as ATF for Mers Family Trust had been granted a nomination approval for the nominated occupation of cook (ANZSCO 351411) in respect of Mr N Beri.
At the hearing the Tribunal discussed whether the applicant was the subject of an approved nomination by an approved standard business sponsor as at the time of the Tribunal’s hearing. The applicant stated that he was the subject of an approved nomination and referred to the Department correspondence dated 10 August 2015.
The Tribunal had regard to the Department’s electronic records and notes they state as follows:
·Rao Madhukar as ATF for Mers Family Trust was approved as a standard business sponsor for the period 20 November 2013 until 20 November 2016.
·That Rao Madhukar as ATF for Mers Family Trust did received approval of a nomination application for the nominated occupation of cook in respect of the applicant on 10 August 2015.
·As at the date of hearing the applicant was not the subject of an approved nomination held by an approved standard business sponsor.
·As at the date of hearing there was no pending sponsorship application or pending nomination application in respect of the applicant.
Under the procedure in s359AA of the Act the Tribunal invited the applicant to comment on the information above, noting that under the Migration Regulations the nomination approved on 10 August 2015 would have expired on 10 August 2016 (see r.2.75). The applicant indicated he wished to respond and he did not require time to consider his response. The applicant stated that he went to the Immigration Department office in Hobart before the expiry of the nomination and they advised him that if his sponsor was not going to sponsor anyone else he did not need to renew the nomination until the review application was decided. The officer advised him that if the sponsor was going to sponsor another person then he would need a renewal. He stated that the employer was happy to give the applicant a job once he sorted out his visa.
The applicant requested additional time so that he could go to the Department and apply for a new nomination. The Tribunal noted that the employer is no longer an approved sponsor so the employer is unable to seek a nomination approval until the employer is first approved as a sponsor, and it would appear as at the date of the hearing there was no approved sponsor who could seek approval of a nomination. The applicant again requested additional time. The Tribunal notes that on 2 November 2016 the Tribunal requested in its hearing invitation letter that the applicant provide evidence of an approved nomination or a pending nomination application and queried why the applicant should be given additional time. The applicant replied that he knew it had expired but he spoke to the Immigration Department who told him there was no need to make a new application until the there was a decision on the review.
After consideration of the material, noting the Tribunal’s request for the relevant evidence on 2 November 2016, the Tribunal granted the applicant 7 days until 20 February 2017 to provide evidence in relation to the sponsorship and nomination applications in respect of the applicant.
On 19 February 2017 the Tribunal received a further submission and documents from the applicant. In the covering email he referred to his current sponsorship from my employer and that he had attached a contract of employment and nomination papers. The applicant provided a letter of engagement (contract) with The Trustees for Mers Family Trust dated 30 March 2015. The applicant also provided the Department letter and notice dated 10 August 2015 approving the nomination for the Rao Madhukar ATF Mers Family Trust. The Notice of Decision dated 10 August 2015 includes a statement that the nomination approval ceases on the earliest of the following… “12 months after the day on which the nomination is approved.”
After considering the information available, the Tribunal is not satisfied that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased as provided for in regulation 2.75. Therefore, the Tribunal is not satisfied that the requirements of cl.457.223(4)(a) are met.
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 this case the nominated occupation is cook (ANZSCO 351411).
The Departmental policy indicates that decision-makers should have regard to ANZSCO in assessing the whether the applicant meets the criteria in cl.457.223(4)(da). The Tribunal took into consideration the policy of the Department set out in PAM 3. The Tribunal observes that whilst it may be guided by policy it is not bound to follow it.[1] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. However in the interests of consistency in decision-making the Tribunal considered that it should have regard to the policy in this case.
[1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
The policy notes, amongst other things, that the qualifications and experience of the applicant should be commensurate with the qualifications and experience specified for the occupation in the relevant ANZSCO Code. It goes on to state that the ANZSCO should be referred to as the principal source of information on the normal tasks or duties and skill requirements for occupations in Australia. It notes that ANZSCO skill level references represent the entry level skill required for a particular occupation. In all cases, case officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation.
In ANZSCO the following information regarding the duties and skills are listed:

UNIT GROUP 3514 COOKS

COOKS prepare, season and cook food in dining and catering establishments.

Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.

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 Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

In New Zealand:

NZ Register Level 4 qualification (ANZSCO Skill Level 3)

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.

Tasks Include:

o    examining foodstuffs to ensure quality

o    regulating temperatures of ovens, grills and other cooking equipment

o    preparing and cooking food

o    seasoning food during cooking

o    portioning food, placing it on plates, and adding gravies, sauces and garnishes

o    storing food in temperature controlled facilities

o    preparing food to meet special dietary requirements

o    may plan menus and estimate food requirements

o    may train other kitchen staff and apprentices

Occupation:

351411 Cook

351411 COOK

Prepares, seasons and cooks food in a dining or catering establishment.

Skill Level: 3

After consideration of the following evidence the Tribunal is not satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook.
The applicant provided the following information in relation to his skills, qualifications and employment background.
The applicant was born in India and he attended primary and secondary school in India. He completed his secondary education in 2000.
The Tribunal had regard to the applicant’s qualifications.
He stated that between 2000 and 2003 he undertook and completed a Bachelor of Arts and between 2003 and 2008 he undertook and completed a Bachelor of Laws. The Tribunal notes that these educational qualifications were listed and declared at question 27 in the applicant’s Additional personal particulars information ( Form 1221) signed and dated by the applicant on 30 April 2015. In addition the applicant provided at the visa application stage various documentation regarding these courses.
In relation to the Bachelor of Arts course he provided the award from Punjab University stating that the applicant completed the course in April 2004. He also provided for the Bachelor of Arts a handwritten result card undated from Punjab University stating he accumulated 1188 points (including 792 for first and second years) and 396 marks for third year), a typed results card for examinations in April 2002 from Punjab University stating that the applicant accumulated 792 marks. The applicant also provided a handwritten results card undated from Punjab University setting out the results for 385 marks. The results cards listed the subjects for the Bachelor of Arts as English, Punjabi, History, political science and Hindi. The applicant also provided a document on letterhead from “Govt.Evening College, Ludhiana” dated 28 January 2015 certifying that the applicant was a regular student of the college in B.A.I,II & III for session 2000- 2003 and notes that he bears a good moral character. The Tribunal accepts that the applicant has completed a Bachelor of Arts between 2000 and 2003 at the Punjab University however the Tribunal is not satisfied that a Bachelor of Arts is directly related to the occupation of cook and the Tribunal is not satisfied this qualification demonstrates that that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook.
In relation to the Bachelor of Laws, the applicant stated that he studied this course because his father was not happy with the applicant’s studies in cooking and hotel management in India (see discussion below) and wanted the applicant to study law. He stated that his father forced him to study law and he completed the course in 2008. As noted above this course was disclosed in the applicant’s Additional personal particulars information ( Form 1221) signed and dated by the applicant on 30 April 2015. During the visa application process, the applicant provided documentary evidence in relation to his law course. The applicant provided a statement dated 12 January 2015 from the Hari College of Law stating that the applicant completed his LLB in 3 years 2005 – 2008. The applicant also provided a Bachelor of Laws Award stating that the Bachelor was conferred in 2008 and it was dated 30 June 2009. Further the applicant provided statements of marks issued by Ch. Charan Singh University, Meerut for 2006, 2007 and 2008. The Tribunal accepts that the applicant has completed a Bachelor of Laws between 2005 and 2008 however the Tribunal is not satisfied that a Bachelor of Laws is directly related to the occupation of cook and the Tribunal is not satisfied this qualification demonstrates that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook.
At the Tribunal hearing, the applicant produced a new educational qualification, not previously submitted during the visa application process. The applicant provided a one page document referring to the “Standard Electronics Centre &Institute of Technology” certifying that the applicant passed a Diploma course in Hotel Management (three years) at the Institute in June 2003. It is dated June 2003 and signed by an unnamed principal.
This Hotel Management qualification was not listed in the applicant’s Additional personal particulars information ( Form 1221) signed and dated by the applicant on 30 April 2015. This document was not provided with the visa application. This document was not supported by any other documents, such as a transcripts of results. The applicant stated that this Diploma was his recognised prior learning (RPL) that his latter Australia cooking qualifications were based on. He stated that he undertook this course between 2000 and 2003. The Tribunal queried why the document was not given to the Department and he replied that it was a mistake. He stated that his lawyer (former migration agent) put forward to the Department the Australian certificates as the primary evidence of his cooking qualifications. The applicant noted that the Department sent an email asking how the applicant obtained the Australian qualifications and his lawyer and the Department thought the Australian qualifications were fake. He stated that he did reply to the Department to show the authenticity of the College and how they issued the RPL. He complained that his agent may not have given this information (ie the Diploma document from Standard Electronics Centre & Institute of Technology) to the Department. He stated that he knew he needed two years work experience or his recognised prior learning but his lawyer did not provide the information to the Department. He also stated that he told his lawyer that he had already undertaken three years of study in the field. The Tribunal noted that at the hearing it was the first time the Diploma document had been produced and the applicant stated that by the time he produced the document, the Department had already decided his visa application. The Tribunal asked why the Diploma was not given to the Department and he stated that he gave the document to his lawyer and it was a mistake that it was not provided to the Department. The applicant stated this Diploma was not listed in the Additional Particulars Form because his agent completed the form and did not include it, although the applicant acknowledges that he did sign the completed form.
The Tribunal asked the applicant what subjects he studied as part of the Diploma of Hotel Management. The applicant replied that he studied 12 subjects each year. When asked again the subjects he referred to were food processing, cooking, safety processes, preservation of food, dealing with customers and he stated that he studied plenty of subjects each year.
The Tribunal noted that in the period between 2000 and 2003 he was studying a Bachelor of Arts, so queried how he also studied a Diploma of Hotel Management. The applicant stated he studied the Bachelor of Arts course at night. The applicant stated that if the Tribunal had regard to the Bachelor of Arts documents it notes that the College that he stated that it was a government evening college. The applicant could not locate the relevant document, but provided it to the Tribunal after the hearing. He stated that he also studied English at the evening college for five years and he provided that to the Department so he did not need to meet the IELTS test requirement. The Tribunal noted that the Bachelor of Arts documents, namely the award and transcript of results made no mention of an evening college. The applicant replied that the University was in a central location but he studied at the local college, but the University awarded the Bachelor degree.
The Tribunal highlighted its concern at the hearing that it may not rely on the Diploma of Hotel Management to accept that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook. The applicant stated that he would provide evidence related to his IELTS test that he did undertake the studies in the Bachelor of Arts at an evening college. The applicant was given time to provide this evidence.
After the hearing, on 19 February 2017 the applicant provided a letter and his student ID card as evidence that he did the Bachelor of Arts in the evening. The letter dated 28 January 2015 describes that the applicant was a student in BA I, II & III for session 2000 – 2003. The letterhead states “Govt. Evening College, Ludhiana”. There is no address for the College.
The Tribunal placed little weight on the Diploma of Hotel Management certificate and the Tribunal is not satisfied based on the document that the applicant has undertaken training in the occupation of cooking as part of the Diploma qualification such that it demonstrated that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook. The document has never been produced prior to the Tribunal hearing. The Diploma qualification was not referred to in the Additional Personal Particulars Form – where the applicant was asked about his qualifications, and it was not referred to in any correspondence from the applicant or his agent to the Department. In particular, this qualification and diploma document were not referred to or included in the correspondence to the Department in September 2015 in response to concerns raised about the authenticity of the Australian cooking certificates (discussed below). In other words, the applicant did not identify this qualification or Diploma document as the evidentiary basis for his claims of prior learning for the award of the Australian commercial cookery certificates. Yet at the hearing, the applicant stated that it was this Diploma which was evidence of his prior learning and the basis for the Australian Certificates. In contrast the applicant’s letter to the Department in September 2015 states that it was his work experience that helped him to gain the Australian qualifications. The applicant did not provide any documents setting out the subject matter of the Diploma course and gave vague evidence about the subjects he studied in the course. There was no evidence that he undertook any practical component in the studies. Further, this qualification was not referred to in the correspondence from Future Academy dated 24 August 2015 who awarded the applicant with Certificate III and Certificate IV cooking qualifications. Further, the Tribunal did not accept the applicant’s explanation that he studied the Bachelor of Arts during the evening and the Diploma of Hotel Management during the day. On the evidence available, the Tribunal is not satisfied that the Diploma of Hotel Management is reliable evidence that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook. The Tribunal placed no weight on the Diploma of Hotel Management certificate.

In relation to the applicant’s study history in Australia, the Tribunal had regard to the following information.
The applicant stated that in 2009 the applicant travelled to Australia as a secondary visa holder on a student visa. In 2011 he was granted a second student visa as a secondary visa holder. In March 2011 he divorced his first wife and he retained a student visa on the basis he was studying a Diploma of Business. In 2013 he was granted a further student visa on the basis of continuing to undertake a Diploma in Business. The applicant stated that he needed additional time to undertake the Diploma of Business course due to his eye condition. The Tribunal notes that there is medical evidence regarding the applicant’s eye condition. The applicant stated that he never completed the Diploma of Business course due to his eye condition.
The applicant provided with his visa application a Certificate III in Commercial Cookery dated 11 February 2015 and a Certificate IV in Commercial Cookery dated 13 March 2015 awarded by Future Academy. The applicant also provided the lists of subjects that the applicant was assessed as competent for both the Certificate III and Certificate IV courses.
After the Department received these certificates it undertook some checks on PRISMS. The PRISMS checks and department notes indicated :
·Future Academy is not registered to deliver any Certificate III or Certificate IV Commercial Cookery Courses;
·There is no course registered on PRISMS with the CRICOS number listed in the Certificate III course, namely SIT30813 as listed on the Certificate III award;
·PRISMS checks on 12 June 2015 shows SIT30813 Certificate III Commercial Cookery is NOT one of the CRICOS courses which Future Academy Pty ltd is registered to provide to overseas students.
The Department invited the applicant to comment on the authenticity of the Australian certificates for the commercial cookery courses.
On 3 September 2015 the applicant’s representative responded to the Department’s request for further information. In response the representative provided the written comments from the applicant (Attachment 1). The applicant stated in the response that the education provider Future Academy is registered under the National Vocational Education and Training Regulator Act 2011 and is approved to deliver the Certificate III and Certificate IV Commercial cookery courses and referred to a government website printout. He also noted he had a letter from Future Academy. The applicant also referred to his work experience with his employer since July 2014 and he noted that his “informal training” helped him to gain the qualification from Future Academy as his previous work experience contributed to getting him into the course of commercial cookery. He also noted during his study, he learned various new skills and his previous work experience helped me to pass the assignments and other assessment tasks. The representative provided the letter from Future Academy dated 24 August 2015, and the government print out to which the applicant referred.
The letter from Future Academy dated 24 August 2015 states that the applicant has successfully attained RPL in the Certificate III and Certificate IV in Commercial Cookery. It notes that the applicant commenced the RPL process on 27 January 2015 and completed the Certificate III on 11 February 2015 and went on to complete the Certificate IV in Commercial Cookery on 13 March 2015. The letter also notes that the Certificate III and IV were granted on the basis of RPL “which is supported by evidences provided, competency conversations, assessments and gap training.” It states that the applicant obtained his Recognition of Prior Learning for the Certificate III and Certificate IV “through proper and valid evidences provided and competencies validated and assessed which he gained through any formal or informal training and portfolio of work.” The Tribunal had some reservations regarding this document, noting a number of spelling and grammatical errors. Further, the document does not make any reference to the Diploma of Hotel Management or provide any specifics of the evaluation process. The applicant referred to the qualification being based on his work experience, however the letter makes no reference to this.
The applicant told the Tribunal that he was awarded these Certificates based on his recognised prior learning, being the Diploma of Hotel Management and not due to his attendance at classes.
The Tribunal had regard to the internet printouts from the website training.gov.au. The printouts, in the form they were provided, appear to show that Future Academy Pty Ltd was authorised to “assess only” Certificate III in Commercial Cookery (SIT30813) and Certificate IV in Commercial Cookery (SIT40413). The Tribunal did a search of the database on traning.gov.au and the website recorded that Future Academy is registered to assess for Certificate III in Commercial Cookery (SIT30813) and Certificate IV in Commercial Cookery (SIT40413).
Under the procedure ins359AA the Tribunal invited the applicant to comment on the information set out above in paragraph 38. In response the applicant stated he wished to proceed to give evidence and did not need time to consider his response. He stated that Future Academy may not be allowed to provide the course but he was awarded the certificates under recognised prior learning. He gave the Future Academy institution authentication prior to the visa being refused. He gave this to his lawyer to respond to the Department – because Future Academy are eligible to give the Certificates based on recognised prior learning in commercial cookery. He also provided evidence that that Future Academy were authorised by government to assess his recognised prior learning and those course numbers were provided as well to his lawyer to provide to the Department.
The Tribunal has considered the Australian Certificate III and Certificate IV Commercial Cookery qualifications provided. The Tribunal accepts the applicant obtained these qualifications from Future Academy and it was not from course work, or practical training but based on some form of assessment. The Tribunal accepts that Future Academy was authorised to assess persons for a Certificate III and Certificate IV in Commercial Cookery. The Tribunal was not satisfied based on these certificates that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook. The period of the course assessment as described in the letter appears to be quite brief having both been assessed and completed within two months. The applicant has stated at different times that the certificates were based on his work experience (see his letter in September 2015) and his prior Diploma in India (stated at the hearing in 2017). The Academy itself has provided a letter that is general in its terms as to the basis on which it assessed the applicant. The Tribunal has placed little weight on the Certificates. The Tribunal is not confident that the Certificates can be relied on to demonstrate that the applicant has the skills and knowledge to work in the nominated occupation of cook. The letter from Future Academy does not indicate that it had regard to the applicant’s earlier qualification in a Diploma of Hotel Management in awarding the certificates and therefore the Tribunal is not satisfied that Future Academy did have any regard to the earlier qualification in undertaking the assessment for the Certificates. In relation to the assessment by Future Academy for the Certificates, the letter from Future Academy refers to “competency conversations, assessments and gap training” and “through proper valid evidences provided and competencies validated and assessed which he gained through any formal or informal training and portfolio of work.” The Tribunal considered these statements to be vague and lacking in any specific detail as to the assessment process. Given, the short period of the two courses, and the lack of any substantive detail as to how the applicant was assessed the Tribunal placed little weight on the Certificate III and Certificate IV in Commercial Cookery in determining whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook.
The Tribunal also had regard to the applicant’s work experience.
The applicant gave evidence that he studied in India prior to 2009 and he did not work in India. He stated that after arriving in Australia in 2009 the applicant was unemployed until July 2010.
Between July 2010 until March 2012 the applicant worked as a trolley supervisor for Starlink as a casual. Between April 2012 and April 2014 the applicant worked as a casual trolley supervisor for Chrome International. This latter company provided services to Coles. The Tribunal finds this work experience as a trolley supervisor is not relevant to the work of the nominated occupation of cook.
The applicant stated that he gained work experience as a part time cook from December 2014 until the visa application was refused in October 2015. The additional personal particulars form states at question 25 that the applicant worked for Namaskar Indian Cuisine as a cook from December 2014 until April 2015 (date of the document). The applicant also provided to the Tribunal a Letter of Engagement dated 28 March 2015 in relation to the applicant to work as a cook on a full time basis for 4 years, to commence within 6 months of the grant of the visa. The Tribunal asked the applicant if there was any other evidence to show that the applicant has work experience as a cook for the former sponsor and the applicant replied that he has no other evidence. He commented that the employer was happy with his work and was willing to sponsor him. The Tribunal has no documentary evidence from any source to verify and corroborate this claimed work experience. The Tribunal placed some weight on the applicant’s account but in the absence of any other evidence to verify this work experience as a part time cook for 10 months, for example payslips, PAYG summary, superannuation or confirmation from the employer of this work experience, the Tribunal did not consider the applicant’s oral evidence was sufficient to satisfy the Tribunal that the applicant has the work experience background necessary to perform the tasks of the nominated occupation of cook. The Tribunal notes that ANZSCO indicates a person should have at least three years of relevant experience that may substitute for a formal qualification. In this context 10 months as a part time cook is well short of the ANZSCO guide.
The applicant told the Tribunal that he has been unemployed since October 2015 and he has relied on family in India to provide him with financial support in Australia and he is living at the home of a friend.
The Tribunal raised its concerns that that it may not be satisfied on the evidence that the applicant has the skills, qualifications and employment background to perform the duties of a cook. He said that he worked for the employer and the employer was satisfied with his skills and he did a trial for a month with the employer before his employer agreed to be his sponsor. His employer is satisfied he can cook. The Tribunal notes that it has no information from the employer (previous sponsor) in regards to the employer’s assessment as to the applicant’s skills to undertake the nominated occupation of cook.
After considering all the evidence above, in particular the applicant’s qualifications and the applicant’s limited work experience, the Tribunal is not satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of cook.
For these reasons, the Tribunal is not satisfied that the applicant satisfies the requirements of cl.457.223(4)(da).
Jurisdiction – secondary visa applicant – Ms A Beri
Mr Beri stated that he was attending the hearing on behalf of himself and his wife. At the hearing, Mr Beri stated that Ms A Beri is not in Australia and has never travelled to Australia. He stated that despite numerous attempts Ms A Beri has never been granted a visa to travel to Australia.
As discussed at the hearing, the Tribunal does not have jurisdiction to consider the review application lodged in respect of Ms A Beri. Ms A Beri was a secondary visa applicant on the applicant’s visa application. This visa application was made whilst Ms A Beri was offshore.
The Tribunal’s jurisdiction arises under s.348 of the Act if an application is properly made under s.347 for review of a Part 5-reviewable decision. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable and the circumstances in which they are reviewable. A decision to refuse a sub class 457 visa application made by a visa applicant is a Part 5-reviewable decision under s.338(9) if the applicant made the visa application while outside the migration zone, and the applicant was “sponsored” or “nominated” as required by a criterion for the grant of the visa (see r.4.02(4)(l)). The Tribunal notes that only the sponsor or nominator has standing to make a review application (section 347 and r.5.02(k)) in respect of a reviewable decision in r.4.02(4)(l). In this case, the only review applicants listed on the review application form are Mr Beri and Ms A Beri. The sponsor is not listed in the review application form as the review applicant. Neither Mr Bari or Ms Beri have standing to seek review of a decision to refuse Ms Beri’s offshore sc457 visa application. Therefore, the Tribunal does not have jurisdiction to review the delegate’s decision made in respect of Ms Beri.
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
The Tribunal affirms the decision not to grant the applicant (Mr Beri) a Temporary Business Entry (Class UC) visa.
The Tribunal has no jurisdiction in relation to the review application made by Mrs Beri.
Miriam Holmes
Senior 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.

[2017] AATA 860

30 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

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