Matthews (Migration)

Matthews (Migration) [2017] AATA 1901 (12 October 2017)
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DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Carl Matthews
Miss Taylor Munro
CASE NUMBER:  1602791
DIBP REFERENCE(S):  BCC2015/2793732
MEMBER:Alan McMurran
DATE:12 October 2017
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 12 October 2017 at 12:46pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications and employment background necessary to perform the tasks of the nominated occupation – Recruitment Consultant – Five years of relevant experience in substitution for formal qualifications
LEGISLATION
Migration Act 1958, s 65
Migration Regulation 1994, r 2.75(2)(b), 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 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 24 September 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 visas on 12 February 2016 on the basis that cl.457.223(4)(da) was not met because the applicant does not demonstrate that he has the skill level commensurate with a bachelor degree or higher qualification or at least 5 years of relevant experience to substitute for the formal qualification.
The applicants appeared before the Tribunal on 14 September 2107 to give evidence and present arguments. The Tribunal also received oral evidence from Bryony Woodrow, General Manager for the applicant’s current employer / nominator.
The applicants were represented in relation to the review by their registered migration agent.
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 primary visa applicant meets the requirements of cl.457.223(4)(da).
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 Recruitment Consultant (ANZSCO 223112).
The indicative skills level for a Recruitment Consultant set out in ANZSCO require a level of skill commensurate with a bachelor degree or higher qualification, alternatively five years of relevant experience may substitute for the formal qualification.
The applicant in this instance has no formal qualifications and relies solely on his work experience to meet the indicative skill level, being at least five years relevant experience.
The applicant provided evidence that he is currently employed at Denovo Consulting Pty Ltd and has been there since 10 June 2015 in the role of recruitment consultant. The applicant has provided a current written employment agreement which describes him as a Senior Consultant, signed by himself and the sponsor / employer and which provides a minimum salary of $65,000 per annum plus commissions and superannuation.
An examination of the Department’s records shows that Denovo Consulting Pty Ltd is a standard business sponsor subject to an approved sponsorship for the period from 1 April 2015 to 1 April 2018.
The applicant was the subject of an approved nomination which commenced on 15 September 2015 and which nomination expired pursuant to r.2.75 (2) (b) on 16 September 2016.The nomination having lapsed, a fresh nomination application was lodged by Denovo Consulting Group Pty Ltd on 30 August 2017. The nomination application is currently subject to processing by the Department and the applicant is not the subject of an approved nomination as at the date of hearing.
At the hearing, the applicant sought a deferral of the decision under review to allow time for the processing of the nomination application. The Tribunal agreed to defer the decision for a period of 21 days on the basis the representative will inform the Tribunal of progress of the nomination application within that extended period. If a further extension is sought, the representative was requested to write to the Tribunal seeking a further extension and setting out the reasons why a further extension was required.
On 6 October 2017 the Tribunal was informed by the applicant’s representative that the nomination application was approved by the Department on 6 October 2017, and that the applicant is the subject of an approved nomination for the occupation of recruitment consultant. A copy of the Department’s letter advising the sponsor of approval of the nomination was provided with the letter from the representative.
The applicant’s responsibilities are set out in the nominator’s letter dated 13 September 2017 and include receiving and recording job vacancy information from employers (clients), arranging for advertising of job vacancies and interviewing and testing applicants, business development, shortlisting suitable candidates and updating vacancies, maintaining client and customer relationship database, post-placement candidate management and ongoing support and relationship development.
The employer is described as a leader in sales, marketing and executive recruitment since establishment in 2011. It looks to specialize in the recruitment of sales and marketing executives. It employs consultants specifically with a background in sales and marketing and who are experienced in sales and marketing from a diverse range of backgrounds. There are currently approximately 50 - 60 employees, 40 of whom work at the Bondi Junction head office. At the hearing, evidence in support of the application was provided from a representative of the employer, Bryony Woodrow, who described herself as the General Manager.
The witness explained the role of the applicant as a senior consultant. The witness referred to the company’s organisation chart[1].The witness stated that the employer has currently six or seven 457 visa holders as employees. The witness answered questions about the role of the applicant, the team he works in and tasks performed. The witness stated that this team works predominantly with clients in the building industry where two of the major clients are flooring manufacturers and installers. The witness said that the applicant’s particular sales and marketing experience in the flooring industry and construction generally obtained from his prior employment at Gainsborough was a major reason why the two flooring clients used the sponsor’s recruitment services
[1] T f 53
The witness described the applicant’s tasks as including preparing advertisements for candidates, interviewing and testing candidates, maintaining client records on the CRM database, advising on performance and related issues, mentoring junior consultants, advising on wages and conditions for clients, negotiating employment contracts for medium executives on salaries from $70,000 up to $150,000, business development activities and researching relevant job markets and opportunities.
The Tribunal is satisfied on hearing that evidence that the applicant performs a majority of the tasks set out in the ANZSCO guide for the occupation of recruitment consultant, described generically as a human resource professional, and that as a former consultant and now senior consultant, the applicant has been doing so since his employment in June 2015.
The applicant has provided a CV which shows his employment since July 2008. The employment history was substantially in the UK from 2008 until May 2014 with Gainsborough Carpets and Flooring, then in Australia from 10 June 2015 to the present with his sponsor, Denovo Consulting Pty Ltd.
The Tribunal discussed with the applicant at hearing his work roles and experience over that time and prior to starting at Denovo.
The Tribunal has also had regard to the applicant’s submissions by letter from the representative dated 30 December 2015, and the updated submissions made by letter from the representative dated 13 September 2017, noting that those submissions in large measure repeated what had been presented to the delegate previously.
At the time of the delegate’s decision, the applicant had been with his employer / sponsor for seven and a half months from June 2015, working in the role of recruitment consultant. The delegate calculated that taking into account the employment in the UK from 2011 to 2014 of three years, then from June 2015 to the date of decision on 12 February 2016, the employment in the role of recruitment consultant and performing relevant tasks was a period less than five years in total.
The Tribunal has heard evidence at the hearing that since February 2016, the applicant has continued to work in the role of recruitment consultant for the sponsor, which is an additional 18 months’ experience in the role of recruitment consultant. The Tribunal agrees with the delegate that the prior experience at the date of the delegate’s decision did not meet the minimum alternative period of 5 years as recommended by ANZSCO.
The Tribunal also notes that the delegate was concerned that not all of the prior experience was in recruitment and that the applicant was primarily employed in a marketing and sales role. The Tribunal is satisfied having heard the detailed evidence from the applicant that the prior work experience from 2011 to 2014 was relevant experience, and may substitute for the formal qualification, and the Tribunal accepts the submissions from the representative in that regard. The work by the applicant in the UK over a number of years involved learning and understanding about sales and marketing and flooring and construction, matters which are directly relevant to his current role recruiting executives both senior and junior for the flooring industry, and reasons why the sponsor has recruited the applicant who is now a senior consultant.
The applicant submits that his experience in sales and marketing is relevant in his role as a consultant to recruit executives with sales and marketing experience. He submits that where the prior experience is relevant, it should be taken into account and that the ANZSCO guide should not be read in a limiting way and that regard should be had to the skills and experience of the applicant which are relevant to his current role as a recruitment consultant and for the whole of the period from 2011 to 2017.
Having regard to the prior experience and having discussed that at length at the hearing the Tribunal is satisfied that the time spent at Gainsborough from 2011 to 2014 in a marketing role included relevant tasks for the occupation of training and development, HR and recruitment of staff. Although not the primary role of the applicant at the time, it is clear that in addition to learning and using knowledge based on the flooring industry and construction generally, as a team leader at Gainsborough, the applicant had HR responsibilities including recruiting staff to work on the shop floor in sales and performance reporting.
Taking into account that experience over 3 years, and then subsequently from June 2015 to September 2017 with the current nominator, the Tribunal is satisfied that the applicant meets the recommended ANZSCO alternative of 5 years prior relevant experience in substitution for formal qualifications, as at the time of decision.
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).
As the Tribunal has found that the applicant meets the above criteria for the grant of the visa, the application for the second named visa applicant is remitted for reconsideration in full.
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 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.
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.

[2017] AATA 1901

12 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Appeal