Gil (Migration)

Gil (Migration) [2018] AATA 31 (5 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Alexander Eduardo Gil
CASE NUMBER:  1616144
DIBP REFERENCE(S):  BCC2016/2082072
MEMBER:Warren Stooke AM
DATE:5 January 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223 of Schedule 2 to the Regulations.

Statement made on 05 January 2018 at 11:09am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Sponsorship for employment – Genuine nominated occupation – Recruitment Consultant – Applicant highly skilled and qualified – Specialised experience – Information Technology sector
LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, r 1.13A , 1.13B Schedule 2 457.223, 457.223(4), 457.223(4)(a) , 457.223(4)(ba) , 457.223(4)(d) , 457.223(4)(da), 457.223(4)(e), 457.223(4)(f)
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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 17 June 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 visas on 13 September 2016 on the basis that cl.457.223(4) (da) was not met because the delegate assessed the applicant on the following basis:
“As the applicant does not satisfy paragraph 457(4) of the Regulations, I am not satisfied that the applicant meets the prescribed criteria for grant of a Temporary Business Entry (Class UC visa) – Subclass 457 Temporary Work (Skilled) visa.
Even, were I to accept that the primary applicant’s management experience at Reading
Cinemas and Palace Cinema Dendy Brighton contributed to his relevant experience, the total duration of his relevant experience would be approximately 28 months, which is short of the five years that the ANZSCO describes as the duration of employment experience indicative of the skill level for a Recruitment Consultant.
Therefore, based on the evidence and information submitted to date, I am not satisfied that the primary applicant has demonstrated that they have the skills, qualifications and employment background necessary to successfully perform the tasks of the nominated occupation.”
The applicant appeared before the Tribunal on 15 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Wolkowski, a Director of Rosch Group Pty Ltd (the Employer). The Tribunal hearing was conducted in the English language, as the applicant is a native English speaker.
The applicant was represented in relation to the review by his registered migration agent, Mr Petrakos of Peak Migration, who made both written and oral submissions on behalf of the applicant.
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).
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 that has not ceased.
The Tribunal was provided with evidence that the applicant has continued employment as a Recruiting Consultant with Redwolf Rosch Pty Ltd, who received a notification of approval of nomination on 28 December 2017. Since the determination of the application by the delegate on 13 September 2016 the applicant has continued his employment with the nominated sponsor.
For these reasons the Tribunal is satisfied that pending the approval of this nomination, the requirements of cl.457.223(4)(a) are met.
Requirements relating to the nomination of an occupation and employment
An applicant will meet cl.457.223(4)(ba) if either the nominated occupation is specified in an instrument; or the applicant is employed to work in the nominated occupation. In the latter case, the employment must be either in a position in the sponsor’s business or in an associated entity. The applicant may only be employed in an associated entity if the sponsor’s most recent sponsorship approval was on the basis of meeting criteria relating to the lawful operation of a business in Australia.
The applicant and the nominated employer provided both written and oral evidence that the applicant is currently engaged as a Recruitment Consultant in the highly specialised Information Technology sector. In this capacity, the applicant’s electronic media and analytical, marketing and communication skills are applied in establishing contacts with industry specific clients and matching with suitably qualified candidates for the positions offered. This requires the applicant to firstly comprehend the complexities of “digital coding” and high tech applications and to provide assessment of the future recruits against that specific technical data. In this regard, Mr Wolkowski, who is a Director of the business, gave evidence that it is very difficult to find suitable personnel, with the technical university level qualifications and the applicable personal skills to satisfy the business’s recruiting demands given the technical knowhow specificity demanded by the high technical client base. He submitted that the applicant uniquely possesses these qualities and is a significant asset to the business.
The applicant, has a first class honours degree from Kent University in the UK in Film and Media which the Tribunal accepts would enable the applicant to exercise advanced critical thinking and analysis, together with a technical base that is meaningfully applied in the current position as a Recruiting Consultant of highly skilled technicians to be deployed in the application of contemporary coding skills. The application of these skills was demonstrated in the presentation of the evidence, including a performance that exceeded set targets, relative to comparable personnel with long term employment in the field
For these reasons the requirements of cl.457.223(4)(ba) are met.
Genuine intention
Clause 457.223(4)(d) requires that the applicant’s intention to perform the occupation is genuine and the position associated with the nominated occupation is genuine.
The position held by the applicant with the nominated employer is genuine and the testimonials from the nominating employer’s clients, which were provided prior to the hearing, attest to the genuine status of the role.
For these reasons the requirements of cl.457.223(4)(d) 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. In this case the nominated occupation is Recruitment Consultant and the applicant firstly, has a Bachelor of Arts in Film Studies, with first class honours, from the internationally recognised University of Kent and has had employment experience since graduation, in various occupations, with applied managerial competencies. This has included the management in film theatres, including responsibility for maintenance of the technical equipment, supervision of staff, marketing and customer relations.
The applicant and the nominating employer provided both written and oral evidence that demonstrated that the applicant has the appropriate skills and competencies to undertake the assigned employment task required by:
·cl.457.223(4)(da): the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation and whether the applicant possesses them;
The applicant is currently employed on a permanent basis and is paid a salary in excess of $70,000 with access to additional remuneration from commissions.
The Director for the business, Mr Wolkowski, gave evidence that the business needed the applicant, as it was hard to find the inherent personal and technical skills held by the applicant. He asserted that it would be hard to replace the applicant (having advertised the position previously with limited success) and that should the Tribunal affirm the decision of the delegate it would “severely impact the business ramp-up over the next 3 to 6 months.” In this regard, he made reference to the fact that two senior recruiters had resigned in October 2017 (Copies of the resignation letters were provided to the Tribunal, post the hearing). He vouched for the applicant and his high standard of excellence, which was observed by the Tribunal during the course of the hearing.
When the delegate reviewed the applicant’s status in April 2016, the applicant was acknowledged to have had an accumulated management experience of 28 months, which the delegate deemed as inadequate for the purposes of satisfying cl.457.223(4)(da). Since, the timing of this decision, the applicant has had another 20 months of specialised experience, which equates to 4 years’ experience in total. Further, the applicant has consolidated his position as a key Recruitment Consultant with his employer, since the decision was handed down.
The agent for the applicant, in a written submission, asserted that: “the approach to be taken by a decision-maker in assessing an applicant’s suitability to performing an occupation is to not be overly restricted by ANZSCO, but to use it as a factual aid. The correct approach requires assessing the attributes of the applicant and how those skills are being applied to the nominated occupation”.
The descriptor provided by the Australian Bureau of Statistics regarding ANZSCO, includes the following statement:
“ANZSCO does not measure the skill level of an individual, rather it refers to the level of skill that is typically required to competently perform the tasks of a particular occupation. Skill level is an attribute of occupations, not of individuals in the labour force or of particular jobs. It is irrelevant whether a particular individual working in a job in a particular occupation has a certain amount of training or a particular level of competence or not.”
Evidence was provided by Mr Wolkowski that two senior recruiters, whom both had more than 20 years’ experience, were not achieving the same level of connection with the clients nor candidate placements or revenue, as has been achieved by the applicant. Specific data was provided to the Tribunal that corroborated this point.
In addition, the applicant has also been proactive in IT industry events. The Tribunal was advised that the applicant has participated as an academic advisor for the Coder Academy, which is designed by expert trainers and industry leaders to create a versatile, relevant curriculum that evolves to meet employers’ 21st century needs. The applicant has also taken an active involvement in Node Girls, a workshop to encourage women coders.
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).
Adverse information
Clause 457.223(4)(f) requires that there is either no adverse information known to Immigration about the person who made the approved nomination, or a person associated with that person, or it is reasonable to disregard any such information. ‘Adverse information’ and ‘associated with’ are defined in r.1.13A and r.1.13B of the Regulations.
The Tribunal has no adverse information, which is known to Immigration about the person who made the approved nomination, or a person associated with that person.
Therefore, cl.457.223(4)(f) is satisfied.
As there is no secondary applicant, pertaining to this application, there is no reason to address the matter of a secondary applicant further.
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.
The hearing was concluded on the basis that the Tribunal would consider the evidence and submissions and issue a decision in due course.
DECISION
The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223 of Schedule 2 to the Regulations.
Warren Stooke AM
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.

[2018] AATA 31

5 January 2018

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Immigration

Administrative Law

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Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

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Appeal