Bowles (Migration) - [2020] AATA 4896

Bowles (Migration) [2020] AATA 4896 (3 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Charis Patience Bowles
CASE NUMBER:  1806557
DIBP REFERENCE(S):  BCC2017/1379437
MEMBER:Alan McMurran
DATE:3 November 2020
PLACE OF DECISION:  Sydney
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)(da) of Schedule 2 to the Regulations.

Statement made on 3 November 2020 at 2:57pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Recruitment Consultant – necessary skills, qualifications and experience – work history and experience – sales account manager in the investment and finance industry – ANZSCO role description – tasks to be performed for nominated occupation – skills required to perform the identified tasks – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223
CASES
Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1708

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application lodged 12 March 2018 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, a 27-year-old citizen of the United Kingdom, applied for the visa on 13 April 2017. The applicant was seeking the visa to work in the nominated occupation of Recruitment Consultant (ANZSCO 223112). The nomination, by Stirling Andersen Pty Ltd (the nominator) to employ the applicant in the position, was approved on 31 July 2017 and a new nomination approved on 8 December 2018.
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.
Delegate’s decision
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 delegate was not satisfied the applicant had the skills, qualifications and experience necessary.
The delegate examined the applicant’s employment background before deciding that her experience was inconsistent with the level of qualifications and/or experience specified in ANZSCO for the nominated occupation. The delegate also found that the applicant did not have a relevant formal qualification at bachelor degree or higher.
The applicant appeared before the Tribunal by telephone, in accordance with the Tribunal’s pandemic protocol on 3 November 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent, who also attended the hearing.
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)(da). A copy of the relevant clause from the Regulations is attached with this decision.
The issue being considered by the Tribunal is the applicant’s skill level, measured against the applicant’s work history and experience, and whether the visa applicant has a minimum period of 5 years’ relevant experience for the nominated occupation.[1]
[1]ANZSCO UNIT GROUP 2231 HUMAN RESOURCE PROFESSIONALS
There is no issue in this application as to whether the applicant has any formal qualifications for the role, which she does not.
The Tribunal has available for consideration the electronic file records from the Tribunal and the Department, together with the applicant’s written submissions and documents, and the evidence obtained at hearing.
The information and documents include:
·The oral evidence;
·General submission made 7 Sep 2020, including employment references and the applicant’s CV;
·Correspondence including s.359(2) invitation for information and responses;
·Written submission from EPG Migration to the AAT, dated 7 September 2020, relying upon relevant work experience;
·Applicant’s statement dated 9 June 2020 describing her prior role at Partnership Assurance in the UK, from 2012 – 2014; reference confirming her role in that organisation as “Sales Account Manager”, selling enhanced annuities;
·Description of business of nominator, Stirling Andersen, from a slide presentation, and describing applicant as “Superannuation Consultant”, who recruits “at all levels”;
·Reference from TAP Andersen partnership;
·Reference for employment as Human Resource Assistant from 2010 – 2012 for Banco Internacional Do Funchai, a Portuguese retail and investment bank outlet operating in the UK;
·Media extracts relevant to recruiting practices and skillsets;
·Documents submitted 27 October 2020 – pension scheme and payslip evidence of prior employment;
The Hearing
The Tribunal explained the hearing process to the applicant who was present by telephone. The representative appearing indicated there was a further referee available by telephone if called upon. No statement was provided by this person prior to the hearing and the witness was not called upon.
No adjournment request was sought to provide further relevant or other information or documents. The agent indicated that some documentation requested from the UK had not arrived, and which related to evidence of prior employment. The applicant however did not seek to defer the process for that reason. The Tribunal indicated it was of the view there was sufficient information to deal with the matter already before the Tribunal.
The Tribunal discussed the decision from the Department and why it was necessary for the applicant to demonstrate she has the requisite skills, experience and employment background to meet the criterion for the nominated occupation.
The applicant gave evidence about arriving in Australia on a working holiday visa on 30 April 2015. The visa was valid for 2 years. On arrival, the applicant obtained a temporary position as a recruitment consultant for the ARES Staffing Group. The Tribunal asked questions about this experience which the applicant describes as “end to end recruitment”, working in a small agency (a two-man team) from an office in Victoria. The applicant said the work involved finding temporary staff for marketing roles across Australia for clients who needed staff for attending trade shows, handing out leaflets and flyers, and on a “constant flow” basis. She said she would upload resumes which she would read and classify, check against client databases for availability and make recommendations for recruitment. The role did not involve face-to-face interviews and continued for approximately 3 months from April 2015.
The applicant then spent 4 months working in regional Australia as required by her working visa. Towards the end of 2015, the applicant found temporary work via an agency at Hornsby, working for the most part as a receptionist for Mercedes-Benz until about August 2016 when the applicant returned to the UK for a holiday, towards the end of her working holiday visa.
At that point, the applicant decided to return to Australia to look for sponsorship. She was referred to her employer, Stirling Andersen, and following interviews, was employed to start on 18 October 2016 as a recruitment consultant. The contract was initially on 6 months’ probation, following which sponsorship would be sought. The sponsor is a large specialist recruitment organisation in the insurance and finance sector, and following successful completion of her probation period, obtained approval for the nomination of the applicant on 31 July 2017. The nomination application was renewed on 8 December 2018, the initial application having expired 12 months from first approval.
The applicant said that her sponsorship for the position in 2017 was based on her experience not only as a recruiter, where she had worked in the UK from 2010 to 2012, but also due to her knowledge of the insurance and investment industry obtained while working at Partnership Life Assurance in London from December 2012 until December 2014.
The Tribunal asked questions about the applicant’s prior experience. The applicant said that she had left school at age 16. After a short period working in hairdressing, in 2010 the applicant was introduced to Banco Internacional Do Funchai, a Portuguese bank operating in London and servicing primarily the Portuguese community, and where she was employed in her first role in HR.
The applicant said she was 1 of 2 staff working in human resources. She said the bank had a head office in London and a retail outlet in Victoria. She said she worked in the head office with another HR manager who supervised her, and an office administrator. She said her work involved managing leave entitlements, recruitment and related advertising, dealing with other agency recruiters and attending interviews. The applicant said she worked full-time in the role for 2 years from October 2010 until September 2012. She said she was made redundant at that time when the bank outlet closed.
The applicant then commenced a role at Partnership Life Assurance. The applicant said her role was principally account management, where she learnt to work with dealer groups, financial brokers and advisers. The applicant said she learnt about financial products, negotiating margins and rates with advisers, dealer group panels and approved products, attended seminars and working face-to-face with dealer groups and advisers. She said she developed sales skills working closely with account managers and financial advisers. She said this experience and industry knowledge was invaluable and assisted her in gaining her current role.
The Tribunal asked about her current role at Stirling Andersen. The applicant said that until the pandemic it was a full-time role but now has slightly reduced hours, working from home. She said her role is to recruit financial and fund management staff including client service managers, BDM’s, accounts staff and superannuation advisers. She said her clients include Local Government, retail superannuation funds (MLC and Colonial First State) and some smaller funds, in addition to the industry funds.
She said without her background and experience in financial products, superannuation and the marketing of those products, it would be difficult to recruit accurately for the specialised superannuation and insurance industry where she now consults on recruitment. She said the role involves her sourcing, investigating and reviewing candidates for wealth management firms, financial planners and advisers and engagement with clients on their products in order to align candidates suitably experienced in the industry with those products. She said she has been doing the role on a full-time basis for the past 4 years since October 2016.
The representative was asked if she had any additional submissions, and in respect of which the representative referred the Tribunal to the written summaries provided. That included a reference from Jan Baker dated 9 April 2020, who had formerly worked with the applicant at the Portuguese bank. In that reference, Ms Baker describes the applicant’s role of Human Resources Assistant, and the applicant’s tasks and duties in the period from October 2010 to September 2012.
The applicant’s written submissions include a letter of 10 April 2017 from Simon Wateridge, senior sales account manager at Partnership Life Assurance Group PLC. The reference describes the tasks and duties of the applicant’s role of Sales Account Manager in that business, and which corroborates in large part the explanation provided by the applicant at the hearing.
The applicant sets out in some detail in her written submission made 9 June 2020 a description of the tasks and responsibilities at Partnership Life Assurance Group PLC. The applicant says in her submission that “my previous insurance experience was particularly essential in my current recruitment position when working on a recruitment project with my CEO and director, partnered with insurance company Allianz on the launch of the new retirement income product”. The applicant gives examples of clients in that role and how her knowledge of dealing with financial adviser firms and dealer groups and their related industry products has provided the basis of her knowledge used in her recruitment role in her current employment.
The applicant submitted in summary that the Tribunal should take into account her experience as an account manager in the investment and finance industry as relevant experience, together with her employment past and present as a recruitment consultant, and which in total amounts to approximately 8 years’ experience.
Skills, qualification and employment background of the applicant – cl. 457.223(4)(da)
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 Recruitment Consultant.
The Regulations do not provide a mandated formula or legislative threshold as to how the described occupation should be assessed against an applicant’s given history and work experience.
It is well settled however, and in accordance with Department policy, that ANZSCO as a guide may be the best starting point, and which provides a useful generic role description of a nominated occupation with a particular skillset, to be measured against the evidence demonstrating the facts and circumstances of an applicant’s particular experience and work history.
In Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [ 2019] FCA 1708, the court refers to the proper construction of the clause as having three elements[2]:
(1) Identification of the tasks to be performed;
(2) Consideration and determination of the skills, qualifications and employment background necessary to perform the tasks; and
(3) An assessment of whether the visa applicant has the skills, qualifications and employment background considered necessary.
[2] [2019] FCA 1708 at par 27 per Charlesworth J
The court further notes that the first element involves “an objective factual question”, whereas the “second and third elements involve evaluative assessments as to factual matters in respect of which reasonable minds may differ”[3].
[3] Ibid at par 28;
It is not necessary in every case for the visa applicant to satisfy the decision-maker s/he has relevant work experience, or on the job training, or “that it was necessary for all visa applicants to possess formal qualifications”[4]. The criterion may be satisfied if one or other of the alternatives can be met, taking account of the particular context and circumstances of the applicant.
[4] Ibid at par 29
The Tribunal has regard to the description of the occupation as set out in ANZSCO, and which describes the role as those who “plan, develop, implement and evaluate staff recruitment, assist in resolving disputes by advising on workplace matters, and represent industrial, commercial, union, employer and other parties in negotiations on issues such as enterprise bargaining, rates of pay and conditions of employment”. The description continues as to the required skill level:
“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).”
The issue firstly for the Tribunal is to determine what are the tasks required for the occupation, against the demonstrated experience of the visa applicant on the evidence.
In that regard, the tasks as described in ANZSCO include:
oarranging for advertising of job vacancies, interviewing and testing of applicants, and selection of staff
omaintaining personnel records and associated human resource information systems
oproviding advice and information to management on workplace relations policies and procedures, staff performance and disciplinary matters
oarranging the induction of staff and providing information on conditions of service, salaries and promotional opportunities
oreceiving and recording job vacancy information from employers such as details about job description, wages and conditions of employment
oproviding information on current job vacancies in the organisation to employers and job seekers
oundertaking negotiations on terms and conditions of employment, and examining and resolving disputes and grievances
ostudying and interpreting legislation, awards, collective agreements and employment contracts, wage payment systems and dispute settlement procedures
odeveloping, planning and formulating enterprise agreements or collective contracts such as productivity-based wage adjustment procedures, workplace relations policies and programs, and procedures for their implementation
ooverseeing the formation and conduct of workplace consultative committees and employee participation initiatives
A Recruitment Consultant according to ANZSCO 223112 interviews applicants to determine their job requirements and suitability for particular jobs, and assists employers to find suitable staff.
The question arises here as to what skillset is required of the visa applicant to perform the identified tasks in her role, and whether this is an instance where 5 years’ relevant experience may substitute for the absence a formal qualification at bachelor level or higher.
What are the relevant tasks?
The Tribunal accepts that the outline of the tasks provided by ANZSC0 provides an objective measure for skills to be performed and required for the occupation nominated.
In this instance, the Tribunal finds it is satisfied that the applicant is performing a majority of those relevant tasks as referred to above. The identified tasks in the evidence include that the applicant is:
·arranging for advertising of job vacancies, interviewing and testing of applicants, and selection of staff
·providing advice and information to management
·providing information on conditions of service, salaries and promotional opportunities
·receiving and recording job vacancy information from employers such as details about job description, wages and conditions of employment
·providing information on current job vacancies in the organisation to employers and job seekers
·undertaking negotiations on terms and conditions of employment
·interviews applicants to determine their job requirements and suitability for particular jobs and assists employers to find suitable staff
Findings for the skills necessary in this instance?

The skills in this instance are measured objectively by an assessment of the applicant’s workplace history and performance to date, carrying out the tasks identified for the role.
The Tribunal is satisfied on the evidence that the applicant has developed the necessary skills and expertise in financial products and management in the superannuation and insurance industry, obtained through working for 2 years in the period 2012 to 2014 as set out above[5].
[5] At par 29
The Tribunal is further satisfied that the applicant has obtained recruitment skills through her employment, initially as a HR Assistant from 2010 to 2012, again for 3 months in 2015 as a recruitment consultant, and then in her current role recruiting specifically for the insurance and financial industry since October 2016 and continuing.
Assessment whether the visa applicant has the skills and necessary employment background?
Applying the threshold proposed by the ANZSCO guide, and in accordance with Department policy, the Tribunal is satisfied that a minimum 5 years of experience in the role for an occupation at Skill Level I is the appropriate benchmark.
In assessing whether the visa applicant has the necessary experience, skills and employment background, the Tribunal has carefully reviewed the work descriptions provided by the applicant in evidence, together with the supporting submissions and the documentation with the references from the previous employers. The Tribunal has also listened carefully to the applicant’s descriptions in her evidence.
The Tribunal finds it is satisfied that the applicant’s background and experience, including her time with Partnership Life Assurance Group PLC has cumulatively contributed to the experience necessary for the applicant to achieve the minimum benchmark of 5 years. The Tribunal finds the total of the applicant’s experience as a Recruitment Consultant, including her relevant industry experience outside that role, as at the time of decision, is close to 8 years’ total experience.
As a result, the Tribunal finds it is satisfied that the applicant has the commensurate level of employment experience suitable for the role of Recruitment Consultant as the nominated occupation.
For these reasons the applicant satisfies 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) (da) of Schedule 2 to the Regulations.
Alan McMurran
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.