Davidson (Migration)

Davidson (Migration) [2019] AATA 5141 (13 November 2019)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Allison Davidson
CASE NUMBER:  1710204
DIBP REFERENCE(S):  BCC2016/3158902
MEMBER:Jennifer Cripps Watts
DATE:13 November 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 13 November 2019 at 5:02pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – necessary skills, qualification and experience – Dance Teacher (Private Tuition) – minimum five years’ relevant work experience – 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

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).
The visa applicant applied for the visa on 22 September 2016.
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 April 2017 on the basis that cl.457.223(4)(da) was not met because they were not satisfied the applicant demonstrated that she possessed the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. On 12 May 2017, the applicant applied for review of her visa refusal and provided the Tribunal with a copy of the delegate’s decision.
The applicant appeared before the Tribunal on 12 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr and Mrs Barr, owners of the company nominating the applicant, Dance Sensations.
The applicant was represented in relation to the review by her registered migration agent. He did not attend 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) and cl.457.223(4)(e).
The applicant applied for the Subclass 457 visa that is the subject of this review on the basis of an approved nomination of an approved standard business sponsor (from 2016 to 2021), DSSOE Pty Ltd (Dance Sensations). Their most recent nomination was approved on 8 December 2018.
It is important to note that the nomination by Dance Sensations will expire on 7 December 2019 unless the applicant is granted the Subclass 457 visa to which the approved nomination relates before 8 December 2019.
In this case, the nominated occupation is Dance Teacher, Australian and New Zealand Standard Classification of Occupations (ANZSCO) Unit Group 2492 Private Tutors and Teachers, which includes Dance Teacher (Private Tuition) ANZSCO 249212.
The Tribunal has had regard to the documentary evidence provided at the time of application and the oral evidence given at the hearing, together with additional documents provided to the Tribunal. References from Anjuli O’Rourke of The Dream Centre Inc in Amityville, and Jennifer Napolitano’s School of Performing Arts Inc in Seaford, both in New York, indicate that the applicant worked as a dance teacher for them between September 2010 and December 2015. In addition, the applicant worked at summer camps for Ocean Beach Play Group as a Dance Head Counsellor in the northern summers of 2010, 2011 and 2012, on a full-time basis for three months in each year. The applicant also provided the Tribunal with a copy of her Employment Agreement with Dance Sensations and PAYG statements for 2016, 2017 and 2018. Oral evidence was given by the applicant and Mr & Mrs Barr at the hearing confirming that the applicant has worked full-time for Dance Sensations during the relevant periods claimed.
The applicant has provided letters and other documents to the Tribunal confirming her employment background as a dance teacher in the USA between 2010 and 2015, including descriptions of her duties:
a.Ocean Beach Play Group (summer camp) 2010, 2011 and 2012
i.Director of Dance for three months in each of the three years
b.The Dream Centre, 2010 to 2015
i.Dance teacher, full-time
c.Jennifer Napolitano’s School of Performing Arts Inc in Seaford, New York
i.October 2013 to December 2015
ii.Dance teacher and choreographer for competitive and non-competitive dancers, full-time 40-45 hours per week
The applicant explained that she was variously working full-time, attending high school, studying in New York City and that she worked for these three employers during the period 2010 to 2015 at different times, not throughout the whole period for each one.
The applicant provided her Australian PAYG statements for financial years ending 2016, 2017 and 2018 when she worked for Dance Sensations that satisfy the Tribunal she worked there full-time.
The applicant has provided a number of personal references, from people who know the applicant through her work at Dance Sensations in Shell Harbour. They speak highly of her character and abilities as a dance teacher. Written references from Mr Nathan Barr, the owner of Dance Sensations, who attests to the applicant’s value as an employee and the positive impact she has on co-workers and students.
Both Mr and Mrs Barr, owners of the nominating business, attended the Tribunal hearing to give oral evidence. They also provided written references attesting to the applicant’s value as an employee and the positive impact she has on co-workers and students with her ability to inspire, motivate and help them to grow and develop.
The Tribunal conducted its own online searches, including the Dance Sensations website and basic information in the applicant’s social media accounts. The applicant is featured on the Dance Sensation’s website as ‘Head of Creative’ and in photographs with students and other teachers.
The applicant presented as a credible person who gave spontaneous and cogent evidence at the Tribunal hearing. She came across as passionate about her work as a dance teacher, evidence corroborated by her current employer, co-workers and students at Dance Sensations in Shell Harbour.
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. In this case the nominated occupation is Dance Teacher, ANZSCO 249212. The ANZSCO specifies a Skill Level 1 and indicates that most occupations in the unit group have a level of skill commensurate with a bachelor degree or higher qualification, or that at least five years of relevant experience may substitute for the formal qualification.
The specific description for Dance Teacher (Private Tuition) in the ANZSCO is that they teach students in the practice, theory and performance of dance in private training establishments.
The tasks listed in the ANZSCO for the nominated occupation include:
a.planning programs of study for individual students and groups
b.preparing and presenting material on the theory of the subject area
c.instructing and demonstrating practical aspects of the subject area assigning problems and exercises relative to students' training needs and talents
d.assessing students and offering advice, criticism and encouragement
e.revising curricula, course content, course materials and methods of instruction
f.preparing students for examinations, performance and assessments
g.keeping abreast of developments in the subject area by attending professional conferences, seminars and courses, reading current literature, and talking with colleagues
h.may arrange visits and tours to professional exhibitions and performances
i.may organise for exhibitions or performances of students' work
The applicant does not claim to have a formal qualification to meet the indicative Skill Level 1 academic qualification requirement, but is relying, in the alternative, on having more than five years’ relevant work experience working as a Dance Teacher, during the period 2010 to 2019.
In the letters, references and employment contract provided, and in the oral evidence given at the hearing, the Tribunal was informed in detail of the duties and tasks that the applicant has undertaken during her employment, both in Australia and the USA, as a dance teacher (private tuition), commensurate with those described in the ANZSCO.
Having carefully considered the evidence, including a very detailed discussion at the hearing with the applicant about her work as a dance teacher in the USA, the Tribunal accepts that the applicant worked casually on a full-time basis during the period 2010-2015 in the USA and has calculated the whole of the period, taking off four weeks each year as an estimate to allow for holidays, and is satisfied that the applicant worked full-time as a dance teacher in the USA for about 52 months (four years and four months).
In addition, the Tribunal is satisfied, on the evidence, that the applicant has worked full-time as a dance teacher in Australia at Dance Sensations in Shell Harbour from January to June 2016 (six months) and October 2016 to November 2019/continuing for 40 months (three years and four months).
In total, the Tribunal is satisfied that since 2010 the applicant has worked full-time as a dance teacher, in the USA and Australia, for a total of approximately 92 months (seven years and eight months).
Additional comments
While not material to the question of whether the applicant has a bachelor level qualification, it is relevant to mention, to give context to the applicant’s career and work experience as a dance teacher, that during high school in 2010, 2011 and 2012, the applicant worked as a dance teacher after school and full-time as a dance teacher at summer camps. Then, straight from high school she went to Manhattan to do a professional semester with the Broadway Dance Center, from September 2012 to May 2013, and was certified by the institution as having trained in a variety of styles including Jazz, Contemporary, Lyrical, Hip Hop, Tap, Ballet, Floor Barre, Modern, Jazz Funk and Heels. The applicant completed several other training or certification courses in New York from 2013 to 2016 while she worked for The Dream Center and Jennifer Napolitano, including Creative Movement, Floor Barre certification, Body Alignment/Injury Prevention Analysis. The applicant has a current Working with Children Check as required under NSW Law, valid to 2021.
The Tribunal notes that since graduating high school in Massapequa in New York (and for 2 years before graduation) the applicant has worked as a dance teacher (as detailed above) and in no other area or field of employment, which in the Tribunal’s view demonstrates an extraordinary commitment to her chosen career in the arts for someone who is 25 years of age.
The Tribunal is satisfied, on the evidence, that the applicant has demonstrated that she possesses the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Dance Teacher (Private Tuition).
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).
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. As mentioned earlier, the Tribunal advocates that as a matter of procedural fairness the remaining 457 visa criteria be assessed and a decision made whether to grant the visa before 8 December 2019 when the nomination will cease.
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
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.

[2019] AATA 5141

13 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Procedural Fairness

Judicial Review

Statutory Construction

Remedies

Jurisdiction