GILL (Migration)

[2017] AATA 2019

GILL (Migration) [2017] AATA 2019 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Manpreet Kaur Gill
Mr Parminder Singh Gondara
Miss Harjot Kaur Gondara

CASE NUMBER:  1602965

DIBP REFERENCE(S):  BCC2015/3547878

MEMBER:Danica Buljan

DATE:5 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application 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:

• Paragraph 457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 05 October 2017 at 12:13pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Sponsorship for employment  by standard business sponsor – Skills, qualifications and employment background – Original occupation – Wholesaler – Removed occupation – New nomination as cook – Applicant has skills, qualifications and employment background

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 1, Item 1223A(3)(d), Schedule 2, cl 457.223(4)(da), r 2.75(2)(b)

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520

Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429

Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767

Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168

Moller v Minister for Immigration and Citizenship [2007] FMCA 168

Parekh v Minister for Immigration and Citizenship [2007] FMCA 633

Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

Visnumolakala v Minister for Immigration [2006] FMCA 1209

Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843

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 Immigration on 24 February 2016 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied for the visas on 27 November 2015. At the time the 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’).

3. One of the criteria to be satisfied at the time of decision is clause 457.223, which requires the first-named applicant (‘the applicant’) to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in subclause 457.223(4), which is set out in the attachment to this decision. In the present case, specific claims have been made against subclause 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 clause 457.223.

4. The applicant originally lodged her application for a subclass 457 visa on the basis that she was to be employed as a 'Wholesaler' (ANZSCO[1] Code 133312).

   [1]ANZSCO: Australian and New Zealand Standard Classification of Occupations, 2013

5. The delegate refused to grant the visa because he was not satisfied that the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. As a result, the delegate found that the applicant did not meet the requirements of paragraph 457.223(4)(da) of the Regulations.

6. The applicant lodged an application for review with the Tribunal on 7 March 2016 and a copy of the primary decision was included with the application for review.[2] The Tribunal has before it the departmental file[3] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]

   [2]AAT Case file 1602965 (T1), f.1-5

   [3]D1 -   Departmental file BCC2015/3547878,  folio numbered 1-147

   [4]AAT Case file 1602965, folio numbered 1-47

7. On 31 January 2017[5] the Tribunal invited the applicant under subsection 359(2) of the Act to provide information that confirmed that she was the subject of an approved business nomination for the purposes of paragraph 457.223(4)(a). It also invited her to provide information that confirmed that she has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation for the purposes of paragraph 457.223(4)(da) of the Regulations. A copy of these Regulations was included with the Tribunal invitation to facilitate the applicant’s response.

   [5]T1, f.19-22

8. On 7 February 2017 the applicant’s representative responded to this invitation with additional information to support the application for review.[6] In particular, the representative provided evidence that Golden Delights Pty Ltd, an approved business sponsor, had lodged an application for a business nomination for a ‘Cook’ (ANZSCO Code 351411) in favour of the applicant on 3 October 2016. The representative also submitted evidence of the applicant’s Certificate IV qualifications in Commercial Cookery.[7]  

   [6]T1, f.18-32

   [7]T1, f.27-33

9. On 20 September 2017[8] the Tribunal invited the applicant under subsection 359(2) of the Act to provide information that confirmed that she had the employment background and skills necessary to perform the tasks of a ‘Cook’, including an updated curriculum vitae / resume and employment references. These were provided to the Tribunal on 4 October 2017.[9] 

   [8]     T1, f.38-40

   [9]T1, f.41-47

10. Therefore, in accordance with subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the parties to appear before the Tribunal to give evidence in relation to the decision under review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant meets the requirements of paragraph 457.223(4)(da) of the Regulations, which states:

    (4)      The applicant meets the requirements of this subclause if:

    …

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    …

13. The Tribunal notes that the delegate refused the visa application because he was not satisfied that the applicant had the skills, qualification and employment background to be employed by Golden Delights Pty Ltd as a 'Wholesaler' (ANZSCO  Code 133312).

14. However, the applicant has since provided evidence that her sponsoring employer, Golden Delights Pty Ltd, is seeking to employ her as a ‘Cook’ (ANZSCO Code 351411). Departmental records confirm that Golden Delights Pty Ltd lodged a business nomination for this occupation on 3 October 2016, which at the date of this decision is still pending before the Department.

15. The Tribunal observes that there is no requirement for the grant of a subclass 457 visa for the applicant to be ‘sponsored’ for the same occupation at both the time of application and the time of decision.

16. Specifically, although item 1223A(3)(d) of Schedule 1 requires the visa application to specify the nominator or proposed nominator, unlike the pre-14 September 2009 criteria, the terms of paragraph 457.223(4)(a) do not require that it must be a nomination by the same sponsor and for the same occupation at time of decision as existed at the time the visa application was originally made.

17. In addition, the Tribunal notes that departmental records confirm that Golden Delights Pty Ltd received approval for a business nomination in favour of the applicant for a ‘Wholesaler’ on 25 November 2015.[10] However, the approval of this nomination ceased by operation of law under paragraph 2.75(2)(b) of the Regulations 12 months after it was approved.   

    [10]T1, f.11

18. Accordingly, the Tribunal has proceeded to assess the application on the basis of the business nomination application lodged with the on 3 October 2016 for a ‘Cook’ (ANZSCO Code 351411), which remains pending before the Department at the time of the Tribunal’s decision.  

    The ‘Skills, Qualifications and Employment Background’ Requirements - Paragraph 457.223(4)(da):

19. In relation to the requirements of paragraph 457.223(4)(da), the departmental policy guidelines in PAM3[11] provide:

    4.7.6.2Assessment against the nominated occupation in ANZSCO

    [11]PAM3: ‘Procedures Advice Manual 3’

    When assessing this criterion, the Australian and New Zealand Standard Classification of Occupations (ANZSCO) should be referred to as the principal source of information on the skill requirements for the nominated occupation – that is, the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation.

    Officers should consider the ‘Indicative Skill Level’ specified for the nominated occupation in the ANZSCO rather than the general ANZSCO Skill Level. They should also make sure that the qualifications and experience of the visa applicant are relevant to the nominated occupation, for example:

    ·     if ANZSCO suggests that an Architect should hold a bachelor degree or higher qualification and a visa applicant, who is nominated as an architect, provides evidence of holding a Bachelor of Law degree, it would be inappropriate to grant the visa without obtaining further evidence of relevant qualifications;

    ·     if ANZSCO suggests that a Marketing Specialist should also hold a bachelor degree or higher qualification and a visa applicant, who is nominated as a marketing specialist, provides evidence of holding a bachelor degree in advertising, this degree would be relevant and the decision maker could be satisfied that the applicant had the requisite skills.

    If a visa applicant does not possess a range of skills and experience that covers the breadth of tasks prescribed under the nominated occupation, they may still meet this criterion if they have skills and experience to perform the bulk or core elements of the occupation. For example, if a visa applicant were to nominate an occupation listed under a “not elsewhere classified” heading, it would be unreasonable to consider that the visa applicant possesses skills and experience in every prescribed task.

    Officers should also consider that some highly skilled visa applicants will specialise in a small range of tasks, rather than in the full range of duties. As this program is designed to enable employers to meet skill shortages, this degree of specialisation is acceptable for visa applicants under the programme.

    4.7.6.3 Providing evidence of skills, qualifications and employment background

    …

    Where a mandatory skills assessment is not required under policy, decision makers need to decide whether:

    · they are satisfied that paragraph 457.223(4)(da) is met based on information provided with the visa application – for example, the visa applicant is a lawyer and has provided transcripts from their law degree as well as evidence of completing required practical professional training, a comprehensive CV and work references outlining previous work experience; or

    · additional information needs to be requested – for example, ANZSCO requires the visa applicant to have education qualifications plus work experience, however, the CV provided does not clearly outline what experience the visa applicant has, and work references would assist the delegate to assess whether paragraph 457.223(4)(da) is met; or

    ·     a discretionary skills assessment should be requested.

    …

    [Tribunal emphasis]

20. The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.[12] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[13]

    [12]    See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [13]    See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]

21. Nevertheless, the Tribunal considers that the policy guidelines provide a useful starting point for the purposes of assessing whether the applicant meets the requirements of paragraph 457.223(4)(da) at the time of decision.

22. In addition, as paragraph 457.223(4)(da) places the nominated occupation at the centre of its focus, the Tribunal also considers it appropriate to have regard to ANZSCO Code 351411 for a ‘Cook’ in assessing whether the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

23. The Tribunal further notes that the Courts have generally endorsed ANZSCO as a consistent and authoritative set of definitional rules and descriptions for classifying occupations: Parekh v Minister for Immigration and Citizenship[14] (‘Parekh’s case’) and Wang v Minister for Immigration and Multicultural and Indigenous Affairs[15] (‘Wang’s case’). 

    [14]    See Parekh v Minister for Immigration and Citizenship [2007] FMCA 633 (where the Court provided such approval in respect of ASCO the predecessor to ANZSCO in a subclass 495 case).

    [15]    Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843 took a similar approach in a subclass 136 case

24. On the other hand, the Tribunal also acknowledges that Parekh’s and Wang’s cases involved different legislative provisions[16], rather than the interpretation of paragraph 457.223(4)(da). It further notes that occupational assessments are complex and dynamic, as well as the likely statistical limitations ANZSCO may well have in properly classifying individual occupations throughout Australia and New Zealand.

    [16]ibid

25. Finally, the Tribunal accepts that the determination of the application requires more than a narrow matching process between an applicant's tasks and an ANZSCO occupational definition. Instead, it is preferable to approach the matter by ascertaining the applicant's skills and how these skills are to be applied in the nominated occupation.[17] 

    [17]Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116.

26. For the purposes of paragraph 457.223(4)(da) in the current matter, ANZSCO Code 351411 specifies the skill level for the nominated occupation of a ‘Cook’ as follows:

    UNIT GROUP 3511 COOKS

    COOKS prepare, season and cook food in dining and catering establishments.

    Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.

    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 Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    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:

    ·     examining foodstuffs to ensure quality 

    ·     regulating temperatures of ovens, grills and other cooking equipment 

    ·     preparing and cooking food 

    ·     seasoning food during cooking 

    ·     portioning food, placing it on plates, and adding gravies, sauces and garnishes 

    ·     storing food in temperature controlled facilities 

    ·     preparing food to meet special dietary requirements 

    ·     may plan menus and estimate food requirements 

    ·     may train other kitchen staff and apprentices

    Occupation:

    351411 Cook

    351411 COOK

    Prepares, seasons and cooks food in a dining or catering establishment.

    Skill Level: 3

27. The applicant is aged approximately 31 years at the time of decision. The Tribunal notes that in the curriculum vitae the applicant submitted to the Department she stated that she had completed a ‘Bachelor of Arts’ and ‘Graduate Diploma of Information Technology’ overseas, and a ‘Diploma of Management’ and ‘Advance Diploma of Management’ in Australia.[18]

    [18]D1, f.36

28. Notably, in support of her application for review the applicant not only submitted evidence of these qualifications[19], but also evidence that she had completed an Australian Qualifications Framework (‘AQF’) ‘Certificate IV in Commercial Cookery’ at the South Pacific Institute from 5 May 2014 to 14 June 2015.[20]   

    [19]D1, f.34 & 106-119 & T1, f.28-29

    [20]D1, f.30 reverse - 31

29. The Tribunal notes that the records provided by the South Pacific Institute on 23 October 2015 indicate that during 2010 and 2011 the applicant was directly assessed as competent in 26 out of 33 units of competency in the ‘Certificate IV in Commercial Cookery (SIT40413)’, and that she received credit transfers for the remaining 7 units of competency.[21] Similarly, the ‘Statement of Attainment’ issued by the South Pacific Institute on 23 October 2015 indicates that the applicant was assessed as competent in all of the units of competency that form part of the ‘Certificate IV in Hospitality (SIT40407)’.[22]

    [21]T1, f.31 reverse

    [22]T1, f.30

30. As a result, and on the basis of these records, the Tribunal finds that the applicant has completed an AQF ‘Certificate IV in Commercial Cookery’ in Australia.  Therefore, taking the evidence as a whole (including the applicant’s work experience as outlined below) the Tribunal is satisfied that the applicant has the qualifications necessary to perform the tasks of the nominated occupation of ‘Cook’ (ANZSCO Code 351411).

31. In addition, the representative submitted the applicant’s updated curriculum vitae / resume and an employment reference from Mr A. Luong. Specifically, Mr Luong advised that , the applicant had been employed as a fulltime cook with Golden Delights Pty Ltd since April 2016, during which time she received extensive on-the-job from the former cook employed by this business.[23] As a result, the Tribunal is satisfied that the applicant has both worked and received approximately 17 months relevant on-the-job training as a cook in Australia. 

    [23]T1, f.41-43 reverse

32. Accordingly, given the case law, policy guidelines set out above and the evidence before it, the Tribunal is also satisfied that the applicant has the skills and an employment background that is appropriate to performing the tasks associated with a ‘Cook’, as defined in ANZSCO Code 351411.

33. As a consequence of its earlier findings, the Tribunal is satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a ‘Cook’ (ANZSCO Code 351411). Therefore, the Tribunal finds that the applicant meets the requirements of paragraph 457.223(4)(da) at the time of decision.

1. Given the above findings, the appropriate course is to remit the application for the visas to the Department to consider the remaining criteria.

   DECISION

2. The Tribunal remits the application 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:

   ·Paragraph 457.223(4)(da) of Schedule 2 to the Regulations.

   Danica Buljan
   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.