LAMPROPOULOU (Migration) - [2020] AATA 2603

LAMPROPOULOU (Migration) [2020] AATA 2603 (29 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Kyriaki LAMPROPOULOU
CASE NUMBER:  1801216
DIBP REFERENCE(S):  BCC2015/2055719
MEMBER:Jennifer Cripps Watts
DATE:29 May 2020
PLACE OF DECISION:  Sydney
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)(da) and cl.457.223(4)(e) of Schedule 2 to the Regulations.

Statement made on 29 May 2020 at 4:45pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – sponsorship by standard business sponsor – skills, qualifications and employment background – replacement with Subclass 482 visa program – of Customer Service Manager ANZSCO 149212 – skill level 2 – applicant’s diploma correspond to the ANZSCO tasks and duties – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 140GB, 360
Migration Regulations 1994, Schedule 2, cl 457.223

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 (the delegate) 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 17 July 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 2 January 2018 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 that the Minister considers necessary to perform the tasks of the nominated occupation.
The Tribunal was able to make a favourable decision on the evidence before it, relating to the determinative issue on the review, without requiring the applicant to attend a hearing to give evidence and present arguments: s.360(2)(a) of the Act. The hearing was cancelled.
The applicant was represented in relation to the review by her registered migration agent, Maryann Young.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant demonstrates, and the Tribunal is satisfied, that they have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation to meet the requirements of cl.457.223(4)(da) and cl.457.223(4)(e) of Schedule 2 to the Regulations.
A hearing was scheduled for the applicant and, in the hearing invitation, it was requested that the applicant consider providing relevant evidence of her qualifications and work references.
Due to a very high volume of review applications lodged with the Tribunal, it was unfortunately some time before the applicant’s case was constituted to a member, on 7 May 2020. The Tribunal reviewed the file and notes that the applicant has provided documentary evidence that, on 1 August 2018, she ‘fulfilled the requirements’ for an AQF Diploma of Customer Engagement at Asset College, on 1 August 2018.
On the evidence, the Tribunal was able to make a favourable decision for the applicant, on the same determinative issue as the visa was refused.
The related nomination
On 18 March 2018 (the commencement date), the Subclass 457 visa program was replaced, effectively, with the Subclass 482 visa program and it was no longer possible to lodge a Subclass 457 visa application or for a related nomination application to be made. However, saving provisions for an approved nomination were put in place for applicants still awaiting a decision on a related Subclass 457 visa application.
The applicant was nominated in the position of Customer Service Manager by Active Premium Beverages Pty Ltd. Their nomination was approved under s.140GB of the Act on 3 November 2017. The visa was refused on 17 July 2015 and the review application made on 17 January 2018.
In summary, relevant to this matter, for a Subclass 457 visa application that was refused and a review application made, but where there is a related approved nomination, if the nominee’s review application was applied for by the visa applicant within 12 months after the day on which the nomination was approved and before 18 March 2018, subclause 6704(15) of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 ‘saves’ the nomination linked to a Subclass 457 visa application until such time as the Tribunal has reviewed the decision to refuse the visa.
In the circumstances, the Tribunal is satisfied the related nomination has not ceased.
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 Customer Services Manager, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 149212.
It is noted in the delegate’s decision, in summary, that the applicant provided evidence of qualifications she had at the time of application and an employment reference from the sponsor, among other things. The delegate was not satisfied, with reference to the ANZSCO, that the applicant demonstrated that she met the indicative skill level.
The nominated occupation in the ANZSCO has an indicative skill level 2 which relevantly may be met with a Diploma, or by substituting formal qualifications with at least three years of relevant work experience.
The subjects undertaken by the applicant for completion of the Diploma of Customer Engagement are included in the document provided to the Tribunal, referred to earlier in the decision. The Tribunal is satisfied, with reference to the list of tasks and duties indicated in the ANZSCO that a substantial proportion, if not all, of the tasks and duties listed on the applicant’s diploma correspond to the ANZSCO tasks and duties.
At the time of application, the applicant did not provide evidence of having a relevant qualification at the level specified in the ANZSCO and sought to rely on relevant work experience in place of the formal qualification. The applicant has now provided the Tribunal with evidence of having completed an AQF Diploma of Customer Engagement, on 1 August 2018.
The Tribunal is satisfied that the applicant has the relevant level of qualification to meet the ANZSCO indicative skill level 2, an AQF diploma, indicating the course to have contained subjects consistent with the tasks and duties listed in the ANZSCO for the occupation of Customer Services Manager, ANZSCO 149212 .
For the reasons given, the Tribunal finds that the applicant possesses and has demonstrated that she has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
Therefore, the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).
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
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)(da) and cl.457.223(4)(e) of Schedule 2 to the Regulations.
Jennifer Cripps Watts
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.