Filippo Silva (Migration)

[2023] AATA 164

Filippo Silva (Migration) [2023] AATA 164 (20 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nuno Filippo Silva
Miss Taissa Vianna Brasil Dos Santos

CASE NUMBER:  2006529

HOME AFFAIRS REFERENCE(S):          BCC2019/5796664

MEMBER:Wan Shum

DATE:20 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 20 January 2023 at 1:43pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Office Manager – skill requirements – occupation not exempt – office-based business with office personnel – business’s primary service providing cleaning services – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.234; r 1.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 15 November 2019. At the time of application, Class RN contained Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Office Manager for Impeccable Group Pty Limited.

5. The delegate refused to grant the visa finding that the skill requirements for the Direct Entry nomination stream were not met and cl 187.234 of Schedule 2 to the Regulations was not satisfied.

6. The applicant appeared before the Tribunal by videoconference using Microsoft Teams on 13 December 2022 to give evidence and present arguments.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the skill and qualifications requirements for the visa in the Direct Entry stream. Clause 187.234 requires that at the time of application:

   ·     the applicant is in a specified class of persons (exempt persons), or

   ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

   ·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation and was employed in the occupation for at least 3 years on a full time basis and at the level of skill required for the occupation.

9. For this criterion, the relevant classes of exempt persons have been specified in IMMI 18/045, and the occupations and relevant assessing authorities have been specified in IMMI 12/096. For the skills assessment, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa and the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

10. In this case, the applicant did not hold a Subclass 444 visa or a Subclass 461 visa so was not in the exempt class of persons specified and cl 187.234(a) does not apply.

11. For the second alternative, the applicant’s occupation of Office Manager is not specified in IMMI 12/096 for the purposes of cl 187.234(b). Therefore, he cannot meet cl 187.234(b) but does meet one of the requirements for cl 187.234(c), specifically cl 187.234(c)(i).

12. In order to meet the other requirements of cl 187.234(c), the applicant must, at the time of visa application, have the qualifications listed in ANZSCO as necessary to perform the occupation of Office Manager and been employed in the occupation for at least three years, on a full time basis, at the skill level required for the occupation as set out in cl 187.234(c).

13. The Tribunal will now consider whether the applicant had been employed as an Office Manager and if so, whether he had the qualifications listed in ANZSCO as being necessary to perform the occupation by reference to the description of ‘Office Manager’ in ANZSCO, which is extracted below:

    UNIT GROUP 5121 OFFICE MANAGERS

    OFFICE MANAGERS organise and control the functions and resources of offices such as administrative systems and office personnel.

    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 Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    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:

    ·contributing to the planning and review of office services, and setting priorities and office service standards

    ·allocating human resources, space and equipment

    ·assigning work to and monitoring work performance of staff

    ·managing records and accounts of the office

    ·liaising with Professionals to coordinate office business and to facilitate resolution of problems

    ·ensuring office equipment and supplies are maintained

    ·ensuring compliance with occupational health and safety regulations

    ·ensuring work complies with relevant government legislation, policies and procedures

    ·coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision

    Occupation:

    512111 Office Manager

    512111 OFFICE MANAGER

    Organises and controls the functions and resources of an office such as administrative systems and office personnel.

    Skill Level: 2

14. The Tribunal discussed with the applicant the issue of whether he had been carrying out the occupation of Office Manager, noting that an Office Manager is described in ANZSCO as a person who “[o]rganises and controls the functions and resources of an office such as administrative systems and office personnel”. It did not appear, based on the applicant’s description of the business, that the nominator operates an office-based business with office personnel. The business delivers cleaning services and, while it is claimed that the business has recently expanded its services to include facility management, the applicant confirmed that there are no office personnel. The applicant claimed that previously he had leased an office space for about 1 year, but revenue decreased significantly due to COVID-19 and the office was transferred to his residential premises. The employees of the business are engaged in cleaning and maintaining buildings in and around the Byron shire and there is no evidence that they carry out office-based tasks or carry out their duties in an office, whether that was a remote or traditional office location. The applicant explained that he was carrying out various duties to run the business, which he submitted aligned with the definition and tasks set out in ANZSCO for Office Manager. The applicant claimed that he organises the administrative systems of the business and, that since starting the business, he has been the sole person responsible for tasks including recording of invoices, making jobs, submitting BAS, client contact, giving quotes for clients, recruiting staff, sending out emails and invoices to clients, with over 1,000 invoices issued since the business began.

15. While some of these tasks appear to reflect those listed in the Unit Group description of Office Manager, in assessing whether an applicant is employed in a particular occupation as required by cl 187.234(c)(iii), the Tribunal notes that ANZSCO gives a description of the occupation, referred to as a ‘lead statement’, and not simply a list of tasks. In order to understand how occupations are classified in ANZSCO, which is a skill-based classification used to classify all occupations and jobs in the Australian and New Zealand labour markets by identifying a set of occupations covering all jobs in the Australian and New Zealand labour markets, the Tribunal has referred to the section in ANZSCO outlining the conceptual model of ANZSCO.[1] This explains that occupations are defined according to their attributes and grouped on the basis of their similarity into successively broader categories for statistical and other types of analysis. The individual objects classified in ANZSCO are jobs.

    [1] >

    The conceptual model adopted for ANZSCO uses a combination of skill level and skill specialisation as criteria to design major groups with occupations organised into progressively larger groups on the basis of their similarities in terms of both skill level and skill specialisation. There are eight major groups formed by grouping together sub-major groups using aspects of both skill level and skill specialisation. Each sub-major group is made up of a number of minor groups, and these are distinguished from each other mainly on the basis of a finer application of skill specialisation. Within minor groups, unit groups are distinguished from each other on the basis of skill specialisation and, where necessary, skill level. Within unit groups, the distinction between occupations relates to differences between tasks performed in occupations and in most unit groups all occupations are at one skill level.

16. On the above information set out under the heading ‘Conceptual basis of ANZSCO’, the grouping of similar occupations into a unit group reflects common skills and skill level with tasks performed. Under the heading ‘Definitions’,[2] an explanation is provided on interpreting ANZSCO occupation definitions. ANZSCO occupation definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively.

    [2] >

    There are limitations of ANZSCO for migration purposes as the definitional material describing each occupation is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO. The Tribunal acknowledges that the descriptions are, therefore, only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required. Notwithstanding this, the adoption of ANZSCO for sponsored worker visas enables an objective definition by which decision makers can make an assessment as to whether a certain job meets the legislative requirements.

17. The definitions for each unit group are formatted in a consistent manner with a lead statement which describes the main activities undertaken in the group and, indirectly, the group's boundaries, and the task list, which is a representative list of the principal or indicative tasks undertaken in the group. The Skill level statement specifies the requirements for competent performance of occupations in the group, expressed in terms of the amount of formal education and training, previous experience and on-the-job training.

18. The elements of occupation definitions are the code, the principal title, Alternative title, Lead statement and Skill level. The principal title used in ANZSCO is considered to be the title that best describes the particular occupation. It is generally the most commonly used title, although there are exceptions in cases where the most commonly used title is too broad or too narrow in meaning for the purposes of the ANZSCO occupation, or where occupations of different content are usually known by the same title. Any commonly used alternative title (or titles) for the occupation have the same meaning as the principal title but may be less commonly used.

19. The lead statement, which summarises the main activities and the boundaries of the occupation, indicates that an Office Manager organises and controls the functions and resources of an office such as administrative systems and office personnel (emphasis added). In the Tribunal’s view this means that the applicant needs to demonstrate that the tasks he has been carrying out in managing the business involve office functions and resources and officer personnel. The applicant’s evidence is that he has been carrying out the tasks listed in ANZSCO for the Unit Group of Office Manager, but the business does not involve office functions and office personnel. The nature of the nominator’s business is not office based as the primary service is to provide cleaning services for residential and non-residential buildings. Furthermore, the size of the business is such that only the applicant carries out work in an office based at home and there are no office personnel.

20. The applicant argued that other job advertisements for Office Managers do not mention office personnel but did not bring to the Tribunal’s attention any specific advertisements. Even if this was the case, the Tribunal’s view is that the description of the occupation should be taken from ANZSCO, noting the express reference to ANZSCO in cl 187.234(c), albeit for the skill level. The applicant added that ANZSCO is only a guide for skills not a definitive statement of what was required. The Tribunal accepts that ANZSCO provides an indication of the qualifications or experience that is typically required to competently perform the duties and in that sense is a guide and is not a definitive statement of the formal qualification or years of experience required to carry out the occupation. But in this case, it is not whether the applicant holds any of the listed qualifications that is in issue on review but whether the applicant has been carrying out the occupation. It is not, in the Tribunal’s view, sufficient to claim that his duties and responsibilities are the same as the tasks listed in ANZSCO without consideration of the lead statement for the occupation nominated and approved. The lead statement gives context by summarising the main activities and the boundaries of the occupation. In considering the applicant’s evidence of his duties and responsibilities, the Tribunal’s view is that his management of the cleaning and facility management business would not be in the occupation of ‘Office Manager’ as it does not properly align with the ANZSCO definition of management of an office with office personnel (whether home based or other). Given this, the Tribunal has not proceeded to consider whether the applicant had the skill level and whether his period of employment was on a full-time basis for at least 3 years.

21. While noting that the applicant has demonstrated entrepreneurial skills in starting and then expanding a business during a difficult period of time, the Tribunal does not accept on the evidence provided that he has been employed as an Office Manager for at least 3 years on a full-time basis. Therefore, cl 187.234(c)(iii) is not met and, having regard to the findings above in respect of the other subparagraphs, cl 187.234 is not satisfied.

22. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Wan Shum
    Member