Mashbat (Migration)
[2020] AATA 5401
•19 October 2020
Mashbat (Migration) [2020] AATA 5401 (19 October 2020)
DECISION RECORD
DIVISION: Migration & Refugee Division
APPLICANTS: Mr Ariunbold Mashbat
Mrs Ankhbayar Mendbayar Mr Ankh-Erdene Ariunbold Miss Ariunzul Ariunbold
CASE NUMBER: 1901971
DIBP REFERENCE(S): BCC2017/3830674
MEMBER: George Hallwood
DATE: 19 October 2020
PLACE OF DECISION: Adelaide
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas (including the secondary applicant Miss Ariunzal Ariunbold whom the Tribunal has found was omitted from the application in error) 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 19 October 2020 at 4:42pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – skills, qualifications and employment background for the nominated occupation – position of Electrical Engineering Technician – relevant experience with this employer – relevant Vocational training – secondary applicant not included in review application form – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 457.223
CASES
Hassan v MIBP [2015] FCCA 894
Le v MIBP [2019] FCA 427
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 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 18 October 2017.
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 visas on 8 December 2018 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the primary applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
The applicant was represented in relation to the review by his registered migration agent.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
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 are:
a. whether the primary visa applicant meets the requirements of cl.457.223(4)(da); and
b. whether Miss Ariunzul Ariunbold applied for review on 29 January 2019.
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 Electrical Engineering Technician – ANZSCO code 312312.
The Tribunal notes that the related nomination was approved, and savings provisions apply. A letter from Mr John Nehme, Director of Mr Mashbat’s employer Gaby Group
Pty Ltd, dated 10 June 2020 confirms the applicant has worked there since 2 January 2018 and is working contractual full-time as an Electrical Engineering Technician. The Tribunal is satisfied that Mr Mashbat’s stated duties align with the description of the relevant occupation in ANZSCO.
The Tribunal has reviewed the applicant’s Resume, training certificates, employer references, and payment summary relevant to this role.
ANZSCO specifies that the indicative skill level of the occupation of Electrical Engineering Technician – ANZSCO code 312312 is commensurate with an AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2).
Evidence provided demonstrates that Mr Mashbat was awarded a Vocational Training Authority Certificate Level 3 in Managing Fire Alarm System and Electric Machinery, Mongolia, on 2 April 2014.
Mr Nehme’s reference as the applicant’s current employer (and nominator) demonstrates that the applicant has in excess of 2.5 years of relevant experience with this employer. References from two other employers demonstrate an equivalent of a further 2 years of experience (4 years part time) in similar roles with them. The Tribunal is satisfied that Mr Mashbat has at least 4.5 years of relevant experience.
It is almost two years since the delegate made the decision to refuse Mr Mashbat’s visa application and he now has further experience in the role. The Tribunal is satisfied that Mr Mashbat meets the required skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
For these reasons the primary applicant satisfies the requirements of cl.457.223(4)(da).
Did Miss Ariunzul Ariunbold apply for review on 29 January 2019?
The delegate’s decision in relation to Ariunbold Mashbat, Ankhbayer Mendbayar, Ankh-erdene Ariunbold and Ariunzul Ariunbold was made on 9 January 2019, and any review application needed to be made within 21 days after the notification of that decision was received by the applicants. The review application was made to the Tribunal on 29 January 2019. Ariunzul Ariunbold, while listed on the delegate’s decision which was attached to the review application, was not named as a review applicant on the review application form.
In a phone-call with a Tribunal Officer on 1 February 2019 and two days after the prescribed time in which a review application could be made, the representative informed the Tribunal it was an error that Ariunzul Ariunbold was not named on the review application as a review applicant. In an email of the same date, the representative informed the Tribunal that Ariunzul Ariunbold’s name was not included on the review application form due to a clerical error.
The Tribunal is satisfied that the notification in the delegate’s decision under the heading “review rights” was correct and that there was no defect in the notification.
It is a question of fact for the Tribunal as to who has applied for review, having regard to all the evidence, including the application form: Hassan v MIBP [2015] FCCA 894. While the Tribunal may have regard to the details of the person applying for review in the review application form, it may not be determinative of who the person seeking
review is, and regard must be had to all of the circumstances: Le v MIBP [2019] FCA 427.
As Ariunzul Ariunbold was included in the decision record attached to the review application form, and the Tribunal accepts the agent’s submission that it was a clerical error Ariunzul was not named as a review applicant on the review application form, the Tribunal is satisfied, having had regard to all of the evidence, that Ariunzul did apply for review on 29 January 2020.
The Tribunal considers the secondary applicants including Miss Ariunzal Ariunbold should also be reconsidered given its findings about the primary applicant.
CONCLUDING PARAGRAPHS
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 applications for Temporary Business Entry (Class UC) visas (including the secondary applicant Miss Ariunzal Ariunbold whom the Tribunal has found did apply for review on 29 January 2020) 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.
George Hallwood Member
ATTACHMENT - CLAUSE 457.223 (EXTRACT)
457.223
…
Standard business sponsorship
…
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.
…
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.
…
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.
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