JUNG (Migration)

[2018] AATA 1762

JUNG (Migration) [2018] AATA 1762 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HYUNSEOK JUNG

CASE NUMBER:  1604982

DIBP REFERENCE(S):  BCC2015/3557051

MEMBER:Antonio Dronjic

DATE:30 April 2018

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)(a) and (da) of Schedule 2 to the Regulations.

Statement made on 30 April 2018 at 4:42pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Nominated occupation – Subject of an approved nomination – Skills and employment background – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2 cl 457.223

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

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). The visa applicant applied for the visa on 27 November 2015.

2. 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.

3. The delegate refused to grant the visa on 5 April 2016 on the basis that cl.457.223(4)(da) was not met because the delegate concluded that the applicant does not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a Cook (ANZSCO 351411).

4. The applicant applied to the Tribunal on 11 April 2016 for review of the delegate’s decision. With the review application, the applicant provided a copy of the primary decision record.

5. On 3 April 2017, the applicant’s representative submitted the following documents to the Tribunal:

   ·Legal submissions dated 29 March 2017;

   ·Applicant’s Resume;

   ·Letter from the applicant dated 17 March 2017 explaining the inconsistency related to the work experience stated in the applicant’s Resume submitted to the Department and the work reference letters provided by his previous employer;

   ·Applicant’s Notice of Tax Assessment for the year ending June 2016;

   ·Applicant’s work reference letter (with translation) from Matjarang Aguzzim, the applicant’s former employer as evidence that he worked in South Korea as a cook from January 2009 to October 2009 and from 25 August 2008 to 26 December 2013;

   ·Certificate of business registration for Matjarang Aguzzim (with translation);

   ·Work reference letter from the applicant’s current employer dated 17 March 2017; and

   ·Bundle of photographs depicting the restaurant that currently employs the applicant.

6. On 11 April 2018, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting him to provide information in writing that demonstrate that the applicant meets the requirements of cl.457.223(4)(a) and (da).

7. On 24 April 2018, the applicants’ representative submitted the following documents to the Tribunal:

   ·Bundle of customers’ reviews for JBento, the applicant’s employer;

   ·Financial Statements for Potter and Sower Pty Ltd (the trustee for Potter and Sower Trust)  (trading as JBento) for 2016 and 2017 financial years;

   ·The Potter and Sower Trust tax return for 2017 financial year;

   ·Work reference letter from the applicant’s current employer dated 17 April 2018 as evidence that the applicant is and has been working as a full time Cook with JBento since 1 August 2015 and attesting to the applicant’s cookery skills;

   ·Legal submissions stating that the sponsoring employer is not a limited services restaurant and explaining the business structure;

   ·Applicant’s PAYG payment summaries for 2015/16 and 2016/17 financial years;

   ·Applicant’s Tax Assessment Notices for 2016 and 2017 as evidence of full time employment with the sponsoring business;

   ·Applicant’s updated Resume;

   ·Submissions dated 24 April 2018, stating that the applicant has more that five years of relevant experience in his nominated occupation; that the sponsoring business obtained new sponsorship approval on 2 March 2016 which will remain valid until 2 March 2021 and that the sponsoring business obtained new nomination approval 15 July 2017.

   ·Copy Sponsorship approval letter from the Department dated 2 March 2016;

   ·Copy nomination approval letter from the Department dated 15 July 2017;

   ·Extract from ASIC’s database as evidence of the sponsor’s business registration;

   ·Copy Trust Deed for the Potter & Sower Trust;

   ·Copy offer to sublease;

   ·Copy certificate of sponsor’s registration for a food business;

   ·Copy JBento’s menu; and

   ·Bundle of photographs depicting the applicant working at the sponsoring business;

8. Under subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant favour on the basis of the material before it. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in the present case is whether the applicant meets the requirements of cl.457.223(4)(a) and (da).

   Requirement for an approved nomination

10. 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.

11. The evidence before the Tribunal is that a nomination in relation to the applicant was approved by the DIBP on 15 July 2017, for the position of a Cook corresponding to the designation in the ANZSCO dictionary 351411. This nomination has not ceased pursuant to the operation of regulation 2.75. The Tribunal accordingly finds that the applicant satisfies cl.457.223 (4)(a).

    Skills, qualification and employment background of the applicant

12. 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 Cook.

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

14. The Tribunal has had careful regard to the tasks and duties and the indicative skill level for the occupation of a Cook as described in the ANZSCO, and the Tribunal regards these ANZSCO indications as important considerations. The entry requirement for the nominated occupation of a Cook is AQF Certificate III including at least two years of on the job training or AQF Certificate IV (ANZSCO Skill Level 3). At least three years of relevant experience may substitute for the formal qualifications. The applicant has not claimed to have completed education that is relevant to the nominated occupation.

15. The Tribunal has approached its task of assessing the applicant’s skills by reference to all of the available evidence relating to the applicant, and in this regard the Tribunal considers that to varying degrees which have increased over time, the majority of the applicant's employment experience since 2009 have been relevant to his capacity to perform the occupation of a Cook.

16. With his review application, the applicant presented to the Tribunal evidence of having more than 5 years of full time employment in his nominated occupation. He submitted additional documentary evidence relevant to his work experience in Korea and Australia. He is and has been working for his current Australian employer since 1 August 2015 and more importantly, his employer attested to his ability to perform the tasks of the nominated occupation. This evidence was not before the delegate at the time of the primary decision.

17. Based on the evidence before it, the Tribunal is satisfied that the applicant has the skills and employment background necessary to perform the tasks of the nominated occupation, and thus finds that he satisfies cl.457.223(4)(da) at the time of the Tribunal’s decision.

18. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

19. 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)(a) and (da) of Schedule 2 to the Regulations.

    Antonio Dronjic
    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.