Kim (Migration)

[2019] AATA 732

Kim (Migration) [2019] AATA 732 (9 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sehyuk Kim
Ms Woonkyung Kim

CASE NUMBER:  1837564

DIBP REFERENCE(S):  BCC2018/1272614

MEMBER:Mr S Norman

DATE:9 April 2019

PLACE OF DECISION:  Sydney

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

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

Statement made on 09 April 2019 at 10:00am

CATCHWORDS
MIGRATION –Temporary Business Entry (Class UC) visa – Subclass 457 – skills, qualifications or employment background – Chef (ANZSCO: 351311) – Certificate IV in Commercial Cookery provided – Diploma of Hospitality Management provided –
decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 457.223(4)(da)

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). The visa applicants applied for the visa on 16 March 2018.

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 visas on 20 December 2018 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied the applicant had relevant skills, qualifications or employment background.

4. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).

   Skills, qualification and employment background of the applicant

7. 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 Chef (ANZSCO: 351311). The ANZSCO description provided (in part):  

   UNIT GROUP 3513 CHEFS
   …..
   Indicative Skill Level: 
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

   In Australia:
   AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)
   …..

   At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

8. After noting the ANZSCO definition, the delegate said the applicant provided evidence that they held the following qualifications:

   ·     Bachelor of Industrial Design Management

   ·     Diploma of Business Administration

   ·     Advanced Diploma of Leadership and Management

9. The delegate was satisfied the tasks listed in ANZSCO for the Chef position, required skills and people Management as well as technical skills to perform the nominated occupation. The delegate was satisfied the qualifications held by the applicant would provide them with people management/leadership skills. However, those qualifications were not commensurate with the Technical/cooking skill required for the nominated occupation of Chef.

10. Next, ANZSCO provided that at least three years of relevant experience might substitute for formal qualifications. The delegate then noted the applicant’s resume’ stated he had been employed in the nominated occupation of Chef with the nominator’s business since 1 February 2015 (the delegate refused the visa on 20 December 2018). The delegate then said the exact period of employment experience was not apparent from the information provided. This was because the nominee was also on a Student visa whilst employed with the nominator, and as a result of the condition attached to his Student visa, the majority of his employment would have to have been on a part-time basis, at least since he had commenced that employment. The delegate noted the applicant had been provided with an opportunity to provide further documents, including references and payslips. However no further information or evidence had been lodged with the Department.

11. Accordingly, the delegate was not satisfied the applicant had the skills, qualifications or employment background necessary to perform the tasks of the nominated occupation. The applicant was then found not to have met cl.457.223(4)(da); or cl.457.223.

12. With the Tribunal, the applicant had lodged evidence of being awarded a Certificate IV in Commercial Cookery on 10 May 2018.[1] He also lodged evidence of having been awarded a Diploma of Hospitality Management on 19 June 2018.[2]

    [1] Tribunal – folio 44.

    [2] Tribunal – folio 42.

13. Therefore, the Tribunal agrees with the delegate that the applicant’s prior education qualifications would provide him with the necessary people management/leadership skills. Further, that the new evidence of more recent qualifications would provide him with the necessary Technical/cooking skill required for the nominated occupation of Chef.

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

15. 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

16. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

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

    Mr S Norman
    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.