Khan (Migration)

[2020] AATA 4010

Khan (Migration) [2020] AATA 4010 (6 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Anwar Khan

CASE NUMBER:  1837496

DIBP REFERENCE(S):  BCC2018/994708

MEMBER:George Hallwood

DATE:6 August 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 06 August 2020 at 10:47am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Panel Beater – necessary skills, qualifications and experience – no formal qualifications – three and a half years of experience – employer reference – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 December 2018 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 1 March 2018. At the time the 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).

3. The delegate refused to grant the visa on the basis that cl.457.223(4)(da) was not met because they were not satisfied that the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated position.

4. The applicant appeared before the Tribunal by telephone on 8 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Emaid Dib, Mr Khan’s employer.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant was advised in advance that the hearing would be a telephone hearing and offered an opportunity to raise any objections. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. No objections were raised prior to or during the hearing in relation to the hearing being conducted by telephone.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation in order to satisfy cl.457.223(4)(da).

   Criteria

9. 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 Panel Beater, ANZSCO code - 324111.

10. The Tribunal has reviewed the applicant’s Resume’, employer reference, payslips and stated experience as relevant to this role. It notes that more than 1.5 years have elapsed since the time of the delegate’s decision. The Tribunal has turned its’ mind to the experience gained within that time period doing the job coupled with the detailed statement from his employer regarding his demonstrated capacity, skill base and capability in this position and industry.

11. The Tribunal takes a view that the balanced combination of prior experience while a student, which was acknowledged by the delegate, and subsequent full-time employment in the role, means that the applicant now has more than three years of experience in the position.

12. ANZSCO specifies that the indicative skill level of the occupation of Panel Beater ANZSCO code – 324111 is commensurate with AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3). It goes on to state that at least three years of relevant experience may substitute for a formal qualification.

13. Mr Khan has no formal qualification relating to panel beating.

14. Mr Khan has worked approximately half time hours for Ultimate Impressions Group as a panel beater since July 2013, initially while on a student visa and then subsequently while applying for a subclass 457 visa that is the subject of this application. This equates to just over three and a half years of experience.

15. In comparing the description of Mr Khan’s role in the position related to the nominated occupation of panel beater provided both in written submissions and orally by Mr Dib and Mr Khan, the Tribunal is satisfied that the position matches the description of Panel Beater, ANZSCO code – 324111.

16. Mr Dib, the proprietor of the nominator and who has 27 years of experience in the industry, in oral evidence before the Tribunal stated that “He [Mr Khan] is the best [Panel Beater] we have had by a country mile.”

17. While the applicant does not hold the formal qualifications set out in ANZSCO for this occupation, his relevant experience exceeds the amount that may be considered a substitute for formal qualifications. This experience, together with the letter of support from Mr Khan’s employer and oral support at the hearing has satisfied the Tribunal that Mr Khan meets the required skills, qualifications and employment background necessary to perform the tasks of the nominated occupation in order to satisfy cl.457.223(4)(da).

18. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

    CONCLUDING PARAGRAPH

19. 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

20. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(da) of Schedule 2 to the Regulations.

    George Hallwood
    Member