BLYTH (Migration) - [2020] AATA 4001

BLYTH (Migration) [2020] AATA 4001 (3 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Stuart Blyth
CASE NUMBER:  1806989
DIBP REFERENCE(S):  BCC2017/1360408
MEMBER:Alison Mercer
DATE:3 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a subclass 457 visa:
·cl.457.223(4)(a); and
·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 03 September 2020 at 4:27pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – subject of an approved nomination – 457 visa program closed – saving provision – Marketing Specialist – necessary skills, qualifications and experience – no Bachelor degree or higher qualification – at least 5 years of relevant experience – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms ) Regulations 2018
Migration Regulations 1994 (Cth), r 2.75; Schedule 2, cl 457.223; Schedule 13, cl 6704
CASES
Mangat v MHA [2019] FCCA 2227
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 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 12 April 2017.
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 visa on 28 February 2018 on the basis that cl.457.223(4)(da) was not met because the applicant had not demonstrated that he had skills, qualifications and employment background that the Minister considered necessary to perform the tasks of the nominated occupation of Marketing Specialist. The delegate noted that the Australian and New Zealand Standard Classification of Occupations (ANZSCO) online dictionary required a Bachelor degree or higher qualification, or at least 5 years of relevant experience, for the occupation of Marketing Specialist (ANZSCO code 225113). The delegate found that the applicant had completed secondary education and vocational qualifications in motor vehicle maintenance in the UK, but was not satisfied that these were at the level of a Bachelor degree or higher qualification. Further, the delegate was not satisfied that the applicant had at least 5 years of relevant work experience, as a number of the applicant’s claimed periods of employment had not been substantiated. The work experience that had been substantiated did not amount to at least 5 years.
The Tribunal received an application for review on 15 March 2018, which was accompanied by a copy of the delegate’s decision, and an authority by which the applicant appointed a registered migration agent, Mr Edward Francis, as his representative and authorised recipient for correspondence.
The matter was constituted to a Tribunal Member on 28 July 2020.
On 6 August 2020, the Tribunal sent a letter to the applicant, via his agent, pursuant to s.359(2) of the Act, inviting him to provide information that:
(i) he remained the subject of a current, approved nomination by an approved Standard Business Sponsor (SBS), as required by cl.457.223(4)(a), as normally, an nomination approval expired after 12 months; and
(ii) he had the necessary skills, qualifications and employment background to perform the tasks of the nominated occupation of Marketing Specialist, as required by cl.457.223(4)(da).
The Tribunal requested that this information be provided by 20 August 2020, noting that unless the applicant provided the information by the due date (or requested an extension of time to do so), he would lose his right to a Tribunal hearing, and the Tribunal might make its decision on the available evidence.
On 20 August 2020, the Tribunal received the following information from the applicant and his agent:
·legal submissions from the agent dated 19 August 2020;
·Nomination Grant letter for the applicant’s nominating employer, Green Home Green Planet Pty Ltd (GHGP)) issued 27 July 2017;
·IMMI Approval of Sponsorship Notification for GHGP, valid from 21 February 2016 to 21 February 2021;
·case law – previous Tribunal decision in LAMPROPOULOU (Migration) [2020] AATA 2603;
·Marketing Specialist ANZSCO definition;
·work reference letter dated 11 August 2020 (GHGP) for the applicant;
·applicant’s payslips (GHGP);
·applicant’s PAYG summary statements for financial years from 2016/17 to 2019/2020 (GHGP);
·work reference letter undated (Reach Services Group) for the applicant;
·work reference letter dated 30 March 2017 (Aussie Farmers Direct) for the applicant;
·applicant’s payslips (Aussie Farmers Direct);
·work reference letter dated 14 August 2020 (Heaven & Hell) for the applicant;
·applicant’s P60 End of Year Certificate (Heaven & Hell);
·applicant’s resume;
·applicant’s Diploma in Marketing, issued 1 May 2017 from Della International College Pty Ltd, Melbourne.
In summary, the applicant’s agent made the following legal submissions:
·the applicant made his original application for a subclass 457 visa on 12th April 2017 and it was refused on 28th February 2018. Subsequently, as noted in paragraphs 12 and 14 of the Tribunal’s decision in LAMPROPOULOU (Migration) [2020] AATA 2603 (29 May 2020) [Attachment 3], Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 replaced subclass 457 visas with subclass 482 visas and it was no longer possible to lodge a subclass 457 visa application, or for related nomination application to be made; but “saving” provisions were put in place for applicants awaiting decisions on subclass 457 visa applications at time of commencement of these amendments until the Tribunal had reviewed a decision to refuse the visa application;
·these savings provisions are contained in Part 67 of the Schedule to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018. Their effect is to preserve for the purposes of this application the provisions of Compilation/ Version No: 187 of the Migration Regulations 19941. The applicable provisions of that saved version of the Regulations thus provide:
othe nomination was approved on 27 July 2017 under visa subclass 457 and has not ceased as provided for in regulation 2.75. To support this claim, reference is again made to the successful application in LAMPROPOULOU [2020] AATA 2603, which was remitted to the DHA on 29th May 2020 by the AAT. In particular, paragraph 12 of the Decision indicates that “from 18th March 2018, the subclass 457 visa program was replaced, effectively, with the Subclass 482 visa program and it was no longer possible to lodge a visa Subclass 457 or for a related nomination application to be made. However, saving provisions for an approved nomination were put in place for applicants still awaiting a decision on a related Subclass 457 visa application”. At paragraph 14 of its Decision, the Tribunal more specifically noted that: “Subclause 6704(15) of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms ) Regulations 2018 ‘saves’ the nomination linked to a Subclass 457 visa application until such time as the Tribunal has reviewed the decision to refuse the visa”. The nomination application of Green Home Green Planet Pty Ltd under visa subclass 457 consequently has not ceased as provided for in regulation 2.75;
·the applicant was therefore identified in an approved and current business nomination by a standard business sponsor, in accordance with cl. 457.223(4)(a);
·in relation to cl.457.223(4)(da), the applicant meets the requirements of this subclause if he had the skills, qualifications and employment background that the Minister considered necessary to perform the tasks of the nominated occupation;
·the employment background requirement of the occupation of Marketing Specialist 225113 as specified by ANZSCO is at least at least 5 years of relevant experience. At the time of visa refusal on 28 Feb 2018, the applicant had 2 years and 9 months of relevant experience with the following employers approved by the Department of Home Affairs.
1. Green Home Green Planet: 1 YEAR
Marketing Officer: March 2016 - Current – Reference Letter Provided by Financial Controller
2. Reach Services Group Marketing: 9 MONTHS
Marketing Officer: February 2016 – October 2016 – Reference Letter Provided by C.E.O
3. Aussie Farmers Direct: 6 MONTHS
Sales and Marketing Team Manager: July 2010 – December 2010 – Reference Letter Provided by Director
4. Aussie Farmers Direct: 6 MONTHS
Sales and Marketing Team Manager: August 2009 – January 2010 – Reference Letter Provided by Director
·given cl.457.223(4)(da) stated that the criteria is to be satisfied at time of decision, it was submitted that the applicant now had sufficient (5) years of relevant experience that might substitute for the formal qualifications required for the nominated occupation as specified by ANZSCO [ Attachment 4 – Marketing Specialist ANZSCO 225113 ) Definition ], considering the number of years working for Green Home Green Planet – one of the above employers - as a Marketing Officer had increased from 1 year to 4 years and 5 months. In particular:
1. Green Home Green Planet: 4 YEAR AND 5 MONTHS
Marketing Officer: March 2016 - Current – Reference Letter Provided by Financial Controller– [ Attachment 5 – Reference letter – Green Home Green Planet], [Attachment 6 – Payslips – Green Home Green Planet] and [ Attachment 7 – PAYG – Green Home Green Planet]
2. Reach Services Group Marketing: 9 MONTHS
Marketing Officer: February 2016 to October 2016 – Reference Letter Provided by C.E.O [ Attachment 8 – Reference letter - Reach Services Group Marketing]
3. Aussie Farmers Direct: 6 MONTHS
Sales and Marketing Team Manager: July 2010 to December 2010 – Reference Letter Provided by Director [ Attachment 9 – Reference letter - Aussie Farmers Direct], [ Attachment 10 – Few payslips - Aussie Farmers Direct]
4. Aussie Farmers Direct: 6 MONTHS
Sales and Marketing Team Manager: August 2009 to January 2010 – Reference Letter Provided by Director [ Attachment 9 – Reference letter - Aussie Farmers Direct], [ Attachment 10 – Few payslips - Aussie Farmers Direct]
5. Club Heaven & Hell: 2 YEARS & 7 MONTHS
Marketing and Promotion Manager: November 2002 to June 2005 – Reference Letter Provided by Director [ Attachment 11 - Reference letter - Heaven & Hell], [Attachment 12 - P60 End of Year Certificate - Heaven & Hell], [ Attachment 13 - Resume - Stuart Blyth] and [ Attachment 14 - Diploma of Marketing - Stuart Blyth]
·the applicant therefore met the requirements of cl.457.223(4)(da); and
·given the compliance with the Regulations, it was requested that the Tribunal remit the applicant’s case to the Department, with the direction that the visa applicant meets the following criteria for a subclass 457 visa: cl.457.223(4)(a) and cl. 457.223(4)(da) of Schedule 2 to the Regulations.
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, pursuant to section 360(2)(a) of the Act.
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 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 (SBS) that has not ceased.
In this case, the applicant has been nominated by his employer, Green Home Green Planet Pty Ltd (GHGP). The Tribunal is satisfied from the material provided by the applicant and his agent, corroborated by the Department’s records, that GHGP was approved as an SBS on 21 February 2016, and that this approval is valid until 21 February 2021.
The Tribunal is further satisfied that GHGP’s nomination of the applicant for the nominated position was lodged on 12 April 2017 and approved by the Department on 27 July 2017. As noted in the Department’s s.359(2) letter of 6 August 2020, this nomination approval normally would have ceased after 12 months (that is, 27 July 2018), assuming no earlier, specified event occurred: r.2.75 of the Regulations (as it was at the time of the nomination approval).
However, as noted by the applicant’s agent, major legislative amendments were made to the subclass 457 visa program and associated nominations on 18 March 2018, which effectively closed the subclass 457 visa program from that date (with some specified exceptions, including undecided subclass 457 visas pending at that date, which includes the applicant’s visa application).
Transitional provisions in relation to the impact of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms ) Regulations 2018 are set out in Schedule 13 to the Regulations. Relevantly, they provide:
6704 - Application and transitional provisions in relation to amendments of Part 2A
…
(14) Despite the amendments of regulation 2.75 made by the amending regulations, that regulation, as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to a nomination made before the commencement day.
(15) However, paragraph 2.75(2)(b) does not apply in relation to a nomination made before the commencement day [18 March 2018] if:
(a) before the commencement day, the person identified in the nomination applied for a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the nomination; and
(b) within 12 months after the day on which the nomination is approved, the person applies to the Tribunal for review of a decision to refuse to grant the visa.
The Explanatory Statement accompanying the Amending Regulations states that:
Clause 6704, entitled Application and transitional provisions in relation to amendments of Part 2A, has the effect that changes to regulations relating to sponsorship and nomination under Part 2A of the Migration Regulations do not affect applications and nominations made before 18 March 2018. There are 2 exceptions:
- ..
- Subclass 6704 (15) ensures that a nomination linked to a Subclass 457 visa application will not cease during AAT review of a decision to refuse the visa. This is a beneficial change to extend the validity of the nomination, which would otherwise cease 12 months after approval (paragraph 2.75(2)(b) of the Regulations) to avoid situations where the applicant is successful at the AAT but the related nomination has ceased to be in effect noting that it is not possible to mkae (sic) another Subclass 457 nomination as of 18 March 2018.
The Tribunal notes that cl.6704(15) of Schedule 13 of the Regulations did not commence until 18 March 2018 and the saving provision in that clause is not drafted in a way to that imply it would have any effect before that date: there is nothing in the language of cl.6704(15) or the accompanying Explanatory Statement to imply that cl.6704(15) has any retrospective effect. The Tribunal’s view of the operation of cl.6704(15) of Schedule 13 of the Regulations has recently been considered and confirmed in the FCCA decision of Mangat v MHA [2019] FCCA 2227 where Kendall J held that cl.6704(15) of Schedule 13 to the Regulations does not operate retrospectively to resurrect nominations that had already ceased in accordance with r.2.75(2)(b) before 18 March 2018.[1]
[1] Mangat v MHA [2019] FCCA 2227, Kendall J at [100]
However, in this case, the Tribunal is satisfied that:
·the applicant applied for his subclass 457 visa before 18 March 2018 (on 12 April 2017); and
·he applied for review of the decision to refuse this visa on 15 March 2018, within 12 months of the approval of the nomination of him on 27 July 2017.
Accordingly, the Tribunal is satisfied that the nomination falls within the saving provision and did not expire 12 month from the date of its approval, and that the applicant remains the subject of an approved nomination made by an SBS.
The Tribunal therefore finds 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 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. The Tribunal notes that the delegate did not require the applicant to demonstrate his skills under cl.457.223(4)(e).
In this case the nominated occupation is Marketing Specialist (ANZSCO code 225113). The ANZSCO occupational description for this occupation (ANZSCO being the standard reference used by the Department) provides the following guidance (Tribunal’s emphasis in bold font):
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
It was not disputed by the applicant that he does not hold a Bachelor degree or higher qualification. He relies instead on having at least 5 years of relevant experience to substitute for a formal qualification at Bachelor degree level or higher.
At the time of the primary decision on 28 February 2018, the delegate was not satisfied that the applicant had established that he had at least 5 years of relevant experience in his field.
The Tribunal concurs with the applicant’s agent that cl.457.223(4)(da) is to be assessed at the time of decision, which in this case means at the time of the Tribunal’s decision (as the Tribunal stands in the shoes of the original decision-maker). As further submitted by the applicant’s agent, the applicant has now accrued additional time in his nominated role of Marketing Specialist with GHGP, in addition to the employment experience he claimed at the time of the delegate’s consideration. Moreover, the applicant has also provided additional documentary evidence of his employment with each of his employers, which includes reference letters, payslips and PAYG summary statements issued to the applicant by the employers.
Having reviewed the material provided, the Tribunal is satisfied that the applicant has had the following work experience relevant to his nominated occupation of Marketing Specialist:
·Marketing Officer with GHGP from March 2016 to date (September 2020) – 4 years and 6 months approximately; and
·Marketing Officer with Reach Services Group Marketing from February 2016 to October 2016 (approximately 9 months).

Together, this exceeds the 5 years of relevant experience referred to in ANZSCO. The Tribunal also notes that the applicant has additional prior experience in Marketing roles, comprising approximately 3 years and 7 months between 2002 and 2010. He also has a Diploma in Marketing, issued 1 May 2017 from Della International College Pty Ltd, Melbourne. Given this, the Tribunal is satisfied that the last 5 years of relevant experience claimed by the applicant were at a suitably high level to be considered relevant to the nominated occupation, as they were undertaken after the applicant had obtained a Marketing qualification (albeit not a Bachelor degree) and had undertaken marketing roles for several previous employers, 1 of which was as a Sales and Marketing Manager.
The Tribunal is therefore satisfied that the applicant meets the requirements of cl.457.223(4)(da).
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 a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a subclass 457 visa:
·cl.457.223(4)(a); and
·cl.457.223(4)(da) of Schedule 2 to the Regulations.
Alison Mercer
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.