Cummins (Migration)

[2019] AATA 4577

Cummins (Migration) [2019] AATA 4577 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Marianne Cummins

CASE NUMBER:  1725661

DIBP REFERENCE(S):  BCC2017/2318244

MEMBER:Jennifer Cripps Watts

DATE:26 September 2019

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; and

·cl.457.223(4)(e) of Schedule 2 to the Regulations

Statement made on 26 September 2019 at 12:04pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – necessary skills, qualification and experience – Technical Sales Representative – continued working after visa refusal – relevant work experience at the time of Tribunal’s decision – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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 (the delegate) 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 29 June 2017.

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 9 October 2017 on the basis that cl.457.223(4)(da) was not met because they were not satisfied that the applicant demonstrated that she had the skills, qualifications and employment background necessary to successfully perform the tasks of the nominated occupation or Technical Sales Representative, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 225499.

5. On 20 October 2017, the applicant applied for review, within time, and provided the Tribunal with a copy of the delegate’s notification and decision.

6. The applicant was invited to attend a Tribunal hearing scheduled on 30 September 2019 and provided additional documents and information prior to the hearing.  Upon review of the applicant’s matter, having regard to documents on both the Tribunal and Department file, including written submissions from the applicant’s migration agent, the Tribunal was able to make a positive decision ‘on the papers’.  The applicant was notified and the hearing cancelled, as it was no longer required.

7. The applicant was represented in relation to the review by her registered migration agent, Ingrid Meskin.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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

10. 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.

11. The company that has nominated the applicant, Centre for Asia Pacific Aviation Pty Ltd (CAPA), had their nomination approved on 11 December 2018. 

12. The nominated occupation of Technical Sales Representative (ANZSCO 225499) has an indicative skill level commensurate with a bachelor degree or higher education or, in the alternative, at least five years of relevant experience may substitute.  The applicant has not claimed that she has a suitable tertiary qualification.  However, she does claim, at the time of this decision, to have at least five years relevant work experience in a technical sales role.

13. It was accepted by the delegate and, on review, the Tribunal accepts, that the applicant worked up until her visa was refused, in roles consistent with that of a Technical Sales Representative as described in the ANZSCO:

    a.January 2017 to October 2017 - CAPA, Senior Account Manager

    b.December 2015 to October 2016 - JB Roche, Technical Account Executive

    c.August 2014 to September 2015 – AlienVault, Technical Account Executive

14. The applicant has provided the following additional documentary evidence to the Tribunal since the visa was refused, relevant to her technical sales experience, most recently and continuing with Centre for Asia Pacific Aviation Pty Ltd (CAPA):

    a.Ms Cummins’ resume

    b.Letter of support, dated 18 September 2019 and signed by Derek Sadubin, CAPA Managing Director

    c.Confirmation of Employment letter, dated 23 September 2019 and signed by Derek Sadubin, CAPA Managing Director

    d.Letter of support, dated 20 September 2019 and signed by Rowan Lanser, CAPA Sales Director

    e.Written submissions, dated 23 September 2019, from Ms Meskin

15. When the visa was refused on 9 October 2017, it is noted in the delegate’s decision that the applicant had technical sales experience totalling about three years and two months, from working at CAPA, J B Roche and AlienVault.  At the time of the visa refusal, the applicant had been working for CAPA since January 2017.  She continues to work for CAPA, in the role of Senior Account Manager, which the Tribunal is satisfied has added another year and 11 months to her technical sales experience at the time of this decision.

16. The Tribunal has relied on the applicant’s evidence addressing the indicative skill level in the ANZSCO and, on review and having regard to additional documentary evidence, the Tribunal is satisfied, that the applicant has:

    a.the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation and whether the applicant possesses them (cl.457.223(4)(da)); and

    b.when required by the Tribunal, has demonstrated that she has the necessary skills (from her five years plus work experience in a technical sales role):  cl.457.223(4)(e).

17. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).

18. 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

19. 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; and

    ·cl.457.223(4)(e) of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    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.