Khadka (Migration)

[2018] AATA 3110

Khadka (Migration) [2018] AATA 3110 (3 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Santu Ram Khadka
Mrs Anju KC

CASE NUMBER:  1706713

DIBP REFERENCE(S):  BCC2016/2227915

MEMBER:Alan McMurran

DATE:3 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 03 April 2018 at 2:19pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Standard business sponsorship – Nominated occupation – Program or Project Administrator – Skills assessment – No evidence of a positive VETASSESS skills assessment – Current work tasks do not match nominated occupation – Practice and Procedure – Extension of time – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 30 June 2016. The review applicant is a 31 year old Nepalese citizen.

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 visas on 16 March 2017 on the basis that cl.457.223 (4)(e) was not met because the applicant does not have the skills at a commensurate level to successfully perform the nominated occupation of Program or Project Administrator ( ANZSCO 511112). The applicant had been asked to provide a positive skill assessment from VETASSESS, but had failed to do so.

5. The applicants appeared before the Tribunal in a multi-application hearing list on 25 January 2018, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

6. The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223 (4)(e). In addition, the Tribunal considered whether the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation and in accordance with cl. 457.223(4)(da).

9. In conducting this review and considering whether or not the applicant has demonstrated the necessary skills, training and experience, the Tribunal has regard to the descriptions used in the ANZSCO code, being the Australian and New Zealand Standard Classification of Occupations (the guide). The relevant occupation under review in this instance is that of Program or Project Administrator (ANZSCO 511112). The Tribunal accepts that the guide provides a reasonable basis for determining the description of the occupation and the tasks involved.

10. The nominated occupation has an indicative ANZSCO skill level 2, requiring an AQF Associate Degree, Advanced Diploma or Diploma. At least three years of relevant experience and / or on-the-job training may substitute for the formal qualifications as listed above.

11. Tasks for the occupation include: –

    ·developing, reviewing and negotiating variations to contracts, programs, projects and services

    ·responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected

    ·managing paperwork associated with contracts, programs, projects and services provided

    ·working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met

    ·advising senior management on matters requiring attention and implementing their decisions

    ·overseeing work by contractors and reporting on variations to work orders

    ·preparing and reviewing submissions and reports concerning the organisation's activities

    ·collecting and analysing data associated with projects undertaken, and reporting on project outcomes

    ·reviewing and arranging new office accommodation

    An analysis of these tasks in relation to work performed by the applicant and his experience gained by working was discussed with him at the hearing, as referred to below.

12. The Tribunal has also had regard to the Department’s file and the Tribunal’s file and the information provided by the applicants. That includes copies of a letter from the applicant’s migration agent to the Department, handed to the Tribunal at the hearing on 25 January 2018, and making a submission to waive the request for a skills assessment, and a further email dated 3 January 2018 from VETASSESS to the applicant, acknowledging the online lodgement of an application for skills assessment by the applicant.

13. The Tribunal was notified by email from the representative sent 29 March 2018 that the outcome of the assessment by VETASSESS was negative.

14. The Tribunal was able to conclude the matter at the hearing, and at the applicant’s request, agreed to extend the time before making a decision until after the outcome of the latest VETASSESS was known. The applicant agreed to provide that information to the Tribunal as soon as it became available and has complied with that agreement.

15. The applicant has sought a further adjournment of the decision under review, pending the outcome of an appeal to VETASSESS, but for reasons set out below, has declined to further delay this decision.

    Skills, qualification and employment background of the applicant

16. 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 Program or Project Administrator (ANZSCO 511112).

17. The applicant has submitted that in this case, the Tribunal should exercise its discretion to waive the skills assessment required by the Minister. The Tribunal notes however, that although it is not bound to follow the decision made for the assessment, it will pay due regard to the request by the Minister and consider on the weight of evidence if such an assessment is necessary in the context, or whether the Tribunal may be able to itself determine the issue on the available evidence.

18. The Tribunal notes that the question of the formal assessment in any event need not be determined as the applicant of his own volition has sought and obtained the requested assessment.

19. That leaves the issue then as to whether the Tribunal finds the applicant has the necessary skills and experience to perform the nominated occupation, irrespective of the VETASSESS outcome.

    Background 

20. The applicant gave a history at hearing of having arrived in Australia as a student in November 2008. He stated that he has been in Australia since his arrival, save for short trips when he returned to Nepal and on one occasion to marry, and has worked since 2008, primarily for the Metro Group (Metro), which is an international business operating in the wholesale and food service sector.

21. The applicant is married to the secondary applicant who is also a Nepalese citizen. The applicant is currently residing in Sydney. The applicant has a bachelor degree in business from university in Nepal. A copy of the degree was produced.

22. The applicant said he started working for Metro not long after arriving, when he answered an advertisement. He began working with Metro housekeeping, which he said had a contract with Meriton Serviced Apartments (Meriton) for cleaning and servicing holiday apartments. He said the work involved cleaning both apartments and public areas. The applicant said that after 3 or 4 months, he became a supervisor, and that there were 3 supervisors in total overseeing the work of 60 other part-time housekeepers. During the hearing, it became evident to the Tribunal that material might have been provided by the applicants to support the claims about the work done for Metro for Meriton. There was however no employment agreement produced or which might have demonstrated the nature of the tasks performed by a “supervisor”. The Tribunal instead was required to rely upon the oral descriptions given by the applicant himself, and which in spite of the opportunity provided, did not leave the Tribunal with a clear picture of those tasks or duties as performed by the applicant.

23. For example, the applicant said he prepared reports for Meriton on a daily and weekly basis, but no examples of such reports or what they might have contained was produced. Given the applicant’s difficulties with the English language and the lack of supporting evidence, the Tribunal does not place much weight upon the stated reporting as evidence of a high level task. At best, it might fall within the ANZSCO guide as managing associated paperwork. But the applicant did not state who he was reporting to and why or what the content covered.

24. It was put to the applicant for comment that essentially in his role for Metro, he did what was asked of him directly, but was not involved in developing, reviewing, or negotiating variations to contracts, programs or services. The applicant responded that he was responsible for training staff how to set up the rooms, the laundry rooms, and had some input into hiring staff. He said that friends or contacts sometimes referred to him by others would ask if there was any work available, and if he were in a position to do so, he would refer those inquiries on to Metro for consideration.

25. The Tribunal asked about what other experience the applicant had obtained. The applicant was not able to recount any experiences for Metro which involved the tasks as outlined in ANZSCO. The applicant was not involved in analysing data, or arranging or overseeing new accommodation, working with other project managers or architects or working on resolving contract problems such as may have existed as between Metro and Meriton.

26. For much of his time with Metro, the applicant worked at Meriton premises on the Gold Coast and at Broadbeach and Southport. He said that from time to time, he was flown to Sydney for a meeting at Metro’s head office, but when asked, was unable to clarify the purpose of the meeting. He said he dealt with “complaint management” as well, but there was no clear evidence of how this was managed by him or with what frequency. The Tribunal finds that not much weight can be placed on these statements as evidence of a managerial role or involvement in advising senior management. The role of a Program or Project Administrator as outlined in the guide entails tasks associated with management and is a high level role, where the tasks and reporting would align with such responsibilities involving administration of specific projects. The applicant was unable to identify such projects, and in his own words was a “supervisor” principally of other employees on an on-going basis, rather than a person in the role of administering the contract in place between Metro and Meriton. 

27. The Tribunal finds after hearing the evidence from the applicant that while with Metro, his role involved substantially ensuring the cleaners and room personnel engaged were present and trained and if experiencing any problems, he would report them to management or his immediate supervisor. The Tribunal finds that the applicant was not performing the tasks of a Program or Project Administrator as outlined in the guide, and as a result, did not obtain the necessary qualifications or experience to equip him for that role.

    Experience and History since Metro Employment

28. The applicant stated that he had worked for Metro from 2008 until 2015. The applicant was asked by Metro to relocate to Sydney. The applicant was asked why he left Metro and he replied that the company management and organisation was changing, and staff were being reduced and relocated. He said he did not want to leave the Gold Coast. Around this time, the applicant’s marriage failed and he re-married. He said that in 2013, he returned to Nepal where he met his new wife and also was approved for a 457 visa. He said that when he returned to Australia with his second wife in 2014, they both worked on the gold Coast for Metro until 2014/5, when he was asked by Metro to return to Sydney where he was relocated by Metro at Pullman Hotels Sydney. He said he was unhappy with this outcome and the way the company was treating staff, as he was told he would now be working for “Metro Global” on his 457 visa.

29. The applicant saw an advertisement and was offered a job by the sponsor, Sydney Education and Training Institute in 2015 as a program and project administrator. The applicant said that the sponsor business was in education and training, and worked from premises in Sydney’s CBD in Pitt St. He said his role was to work with migration agents as a referral service and to provide information, including the teaching of English courses. He said his role was “to co-ordinate things”, including liaising with students and reporting to the director. He said there were four managers in the business, with about 20 – 25 students at any one time.

30. The Tribunal asked the applicant about the programs he was working to supervise, but the applicant did not provide any details. He said that basically he counts how many students they need to advise and then organises to co-ordinate their training activities and create programs for the students identified. He did not elaborate on what these tasks involved and the Tribunal does not place much weight on these statements as evidence of the role described above of a program or contract administrator. The Tribunal finds it is not persuaded the applicant is in fact performing the tasks as outlined in ANZSCO and is not engaged by the sponsor in such a role.

31. The applicant said that he was asked to leave the role by the sponsor in about mid- 2017 to await the outcome of this review, and that he has not been working since then. The Tribunal notes that the current nomination by the sponsor has lapsed and there is no evidence from the sponsor that a further application nominating the applicant will be made.

32. Having carefully considered all the above evidence, the Tribunal finds the applicant has not worked in the nominated role with relevant experience for a minimum period of three years and does not have on-the-job-equivalent training in the role. The Tribunal finds that the applicant does not have the skills, qualifications or experience to perform the role of a Program or Project Administrator, as outlined in the ANZSCO guide.

33. The Tribunal notes the applicant’s advice on 29 March 2018 and the negative assessment from VETASSESS. In considering whether the Tribunal should wait for the result of the applicant’s appeal, the Tribunal is not required to delay its decision making processes for an indefinite period and in circumstances as here where it appears there may be little prospects of success. The applicant was asked by letter from the Tribunal on 23 February 2018 to provide the response from VETASSESS together with any other information the applicant might wish to provide. No other information has been forthcoming and the Tribunal finds there is no reason for the Tribunal to defer its decision.

34. For these reasons the applicant does not satisfy the requirements of cl.457.223 (4)(da) or cl.457.223(4)(e).

35. The Tribunal finds that the secondary applicant is not the member of a family unit of a person (the primary applicant) who, having satisfied the primary criteria is the holder of a Subclass 457 visa. The Tribunal finds that the secondary applicant does not meet the requirements of clause 457.321 for the grant of a Subclass 457 Temporary Work (Skilled) visa.

36. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

37. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Alan McMurran
    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.