Jeong (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an application for Temporary Business Entry (Class UC) visas, specifically Subclass 457 (Temporary Work (Skilled)) visas, under the standard business sponsor stream. The primary applicant sought to be employed as a Human Resources Manager, while a second applicant was included as a member of the family unit. The core dispute revolved around whether the primary applicant possessed the requisite skills, qualifications, and employment background to perform the duties of the nominated occupation as defined by the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

The Tribunal was required to determine if the primary applicant met the criteria under clause 457.223(4)(da) of the Migration Regulations, which mandates that an applicant must have the necessary skills, qualifications, and employment background for the nominated occupation. This involved assessing the applicant's experience against the duties and skill level outlined for a Human Resources Manager in ANZSCO, and considering the Department of Home Affairs' Procedures Advice Manual (PAM3) as a guide, while acknowledging it was not binding. The Tribunal also had to consider whether the second applicant met the criteria for a Subclass 457 visa as a member of the family unit.

In its reasoning, the Tribunal noted that while PAM3 policy could be considered for consistency, it was not legally binding. The Tribunal referred to the ANZSCO description for Human Resources Manager, which specifies a Skill Level 1 requiring a bachelor's degree or higher, or at least five years of relevant experience. The Tribunal found the evidence provided by the applicant regarding their skills, qualifications, and employment background to be lacking in detail and unpersuasive in demonstrating their ability to perform the nominated occupation. Furthermore, the Tribunal found that the second applicant did not meet the requirements of clause 457.321 as they were not a member of the family unit of a primary Subclass 457 visa holder.

Consequently, the Tribunal affirmed the original decision not to grant the Temporary Business Entry (Class UC) visas to the applicants.