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

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.
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 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).
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: JUNG (Migration) [2018] AATA 1762
Case: [2018] AATA 1762
Decision Date: 30 April 2018

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of a decision regarding a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant sought to have their visa application reconsidered.

The Tribunal was required to determine whether the applicant met the requirements of clauses 457.223(4)(a) and 457.223(4)(da) of Schedule 2 to the relevant regulations. Clause 457.223(4)(a) pertains to the existence of an approved nomination for the applicant's occupation that has not ceased, while clause 457.223(4)(da) concerns whether the applicant possesses the necessary skills, qualifications, and employment background for the nominated occupation.

The Tribunal found that the applicant satisfied clause 457.223(4)(a) as an approved nomination for the occupation of Cook had been made and had not ceased. In assessing clause 457.223(4)(da), the Tribunal adopted an approach that considered the applicant's skills and their application to the nominated occupation, rather than a narrow matching exercise against the ANZSCO definition. The Tribunal was satisfied, based on evidence including the applicant's extensive employment experience and an attestation from their employer, that the applicant possessed the requisite skills and employment background to perform the tasks of a Cook. This evidence, which included additional documentation of work experience in Korea and Australia, was not before the original decision-maker.

Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a direction that the applicant met the criteria under clauses 457.223(4)(a) and 457.223(4)(da). The Minister was to consider the remaining criteria for the Subclass 457 visa.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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 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 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 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 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. 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. 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. 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. 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.

Decision

Reasons for decision

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 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 DronjicMemberATTACHMENT - 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.

Ratio Decidendi

Legal Principle Established

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