HASSAN (Migration)

[2017] AATA 556

HASSAN (Migration) [2017] AATA 556 (13 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JAHID HASSAN

CASE NUMBER:  1612642

DIBP REFERENCE(S):  BCC2016/1129972

MEMBER:Brook Hely

DATE:13 April 2017

PLACE OF DECISION:  Melbourne

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.

Statement made on 13 April 2017 at 11:13am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications and employment background – Sales and Marketing Manager – Relevance of qualification – Additional work experience

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 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 15 March 2016.

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 26 July 2016 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had the skills, qualifications and employment experience necessary to perform the tasks of the nominated occupation.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills, qualification and employment background of the applicant

6. 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 Sales and Marketing Manager.

7. In the decision record, the delegate noted that a Sales and Marketing Manager is an ANZSCO skill level 1 occupation, which is commensurate with a bachelor degree or higher or at least five years of relevant employment experience. The delegate acknowledged that the applicant had worked for his sponsoring employer since August 2013. However, given that he had been on a student visa with a work limitation of no more than 40 hours per fortnight, the delegate found that this part-time work experience was insufficient to meet the 5 year period specified by ANZSCO. With respect to the applicant’s qualifications, the delegate acknowledged that the applicant had completed a Bachelor of Accounting from Central Queensland University in July 2014. However, on review of the applicant’s transcript of results, the delegate was not satisfied that the subjects completed by the applicant were sufficiently relevant to the nominated occupation to meet the skill level specified by ANZSCO. The delegate also acknowledge that the applicant had completed a Certificate IV in Financial Services, a Diploma of Marketing and a Diploma of Accounting. However, as these qualifications were below the bachelor level specified in ANZSCO, the delegate was not satisfied that they meet the relevant skills requirement.

8. Subsequent to the delegate’s decision, the applicant’s agent provided a detailed written submission, together with supporting documents, outlining the applicant’s qualifications and employment experience relevant to the nominated occupation. That submission noted that the applicant has remained in the employment of his sponsor in the nominated position. The submission outlined a calculation of the applicant’s history of employment in the nominated occupation, including with his current employer as well as a previous 18 months of work experience as a sales manager between January 2012 until July 2013. It was submitted that the applicant has now completed the equivalent of five years full time of highly relevant work experience, including 3 ½ years with his sponsoring employer in the nominated occupation. The submission also outlined relevant subjects completed as part of the applicant’s various qualifications that bear direct relevance to the nominated occupation.

9. In the Tribunal’s view, when assessing whether the applicant has the requisite skills, qualifications and employment background necessary to perform the tasks of the nominated occupation it is important to view the applicant’s history of qualifications and work experience together. In the present case, the Tribunal accepts that the applicant completed a Bachelor degree in Accounting, as part of which he completed several units relevant to the nominated occupation, as set out in the agent’s submission. Of itself, the Tribunal acknowledges that this qualification may not be sufficient to provide the applicant with the necessary qualifications or skills for the position. However, the applicant also completed other qualifications that supplemented his knowledge and skills relevant to the occupation. Specifically, he completed a Diploma in Marketing, which was directly relevant to the nominated occupation, as well as a Diploma of Accounting which again included several units relevant to the nominated occupation. Additionally, both during his period of study and afterwards, the applicant completed both full-time and part-time employment in the nominated occupation. On the basis of the documents submitted, the Tribunal is prepared to accept the calculation submitted by the applicant’s agent indicating that the applicant has now completed the equivalent of five years of employment experience in his nominated occupation.

10. Viewing the applicant’s qualifications and experience as a whole, and noting also his additional work experience since the delegate’s decision was made, the Tribunal is satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. It follows that the applicant meets the requirements of cl.457.223(4)(da).

11. 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

12. 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.

    Brook Hely
    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.