McMichael (Migration)
[2017] AATA 390
•10 March 2017
McMichael (Migration) [2017] AATA 390 (10 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Ms Stephanie McMichael
CASE NUMBER: 1602909
DIBP REFERENCE(S): BCC2015/2753399
MEMBER:Danica Buljan
DATE:10 March 2017
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Statement made on 10 March 2017 at 3:35pm
CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Skills, qualifications and employment background – Real Estate Representative – Failed to provide requested information – Loss of right to hearing
LEGISLATION
Administrative Appeal Tribunal Act 1975, s 19D(1)
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cl 457.223
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Parekh v Minister for Immigration and Citizenship [2007] FMCA 633
Saba Bros Tiling Pty Ltd v Minister for Immigration & Anor [2010] FMCA 598
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843Yang v Minister for Immigration and Citizenship [2010] FMCA 890
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 February 2016 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 21 September 2015. 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’).
The applicant lodged her application for a subclass 457 visa on the basis that she was to be employed by Hocking Stuart Richmond as a 'Real Estate Representative' (ANZSCO Code 612115).
The delegate refused to grant the visa because she was 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. As a result, the delegate found that the applicant did not meet the requirements of paragraph 457.223(4)(da) of the Regulations.
The applicant lodged an application for review with the Tribunal on 4 March 2016 and a copy of the primary decision was included with the application for review.[1]
[1]AAT Case File 1602909 (T1), f.9-12
The Tribunal has before it the departmental file[2] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3]
[2]D1 - Departmental file, BCC2015/2753399, folio numbered 1-217
[3]AAT Case File 1602909, folio numbered1-55
The Tribunal Invitation to Provide Information
On 31 January 2017[4] the Tribunal invited the applicant under subsection 359(2) of the Act to provide, amongst other things, information that confirmed that the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation for the purposes of paragraph 457.223(4)(da) of the Regulations. A copy of this regulation was included with the Tribunal invitation to facilitate the applicant’s response.
[4]T1, f.29-36
On 14 February 2017 the applicant’s (then) newly appointed representative provided a written submission to the Tribunal regarding the decision in Saba Bros Tiling Pty Ltd v Minister for Immigration & Anor[5] (‘Saba Bros’) and the operation of subsection 359C(2) of the Act.[6]
[5][2010] FMCA 598 (10 December 2010)
[6]T1, f.37-38
On 14 February 2017 the Tribunal granted the applicant an extension of time in which to provide the information requested in its invitation dated 31 January 2017.[7]
[7]T1, f.40-42
On 15 February 2017, this matter (along with a number of other matters) was reconstituted to the Presiding Member under subsection 19D(1) of the Administrative Appeal Tribunal Act 1975.[8]
[8]T1, f.43
On 23 February 2017 the Tribunal wrote to the applicant’s representative in the following terms:
…
This matter has recently been reconstituted to a new member under subsection 19D(1) of the Administrative Appeal Tribunal Act 1975.
The Presiding member notes that in your letter dated 14 February 2017 you state:
We now refer you to your letter dated 31 January 2017, inviting our client to provide further information by 14 February 2017 pursuant to section 359 of the Migration Act 1958 (‘the ‘Act’).
Your letter then puts forward arguments based on Saba Bros Tiling Pty Ltd v Minister for Immigration & Anor[9] (‘Saba Bros’) and subsection 359C(2) of the Act. Significantly, Saba Bros and subsection 359C(2) relate to the application of section 359A of the Act.
However, the invitation the Tribunal sent to the applicant on 14 February 2017 was an invitation to provide information under section 359(2) of the Act. As a result, the Tribunal is concerned that your submissions regarding Saba Bros and subsection 359C(2) of the Act are misconceived in the circumstances of this particular matter, particularly having regard to the decision in Singh v Minister for Immigration and Border Protection.[10]
The Tribunal notes that there has been no communication from you since it wrote to you on 14 February 2017, at which time you were granted an extension of time until 28 February 2017 in which to provide the information the Tribunal had requested from the applicant on 31 January 2017.
Accordingly, and in the interests of fairness to the applicant, the Tribunal wishes to draw this matter to your attention so that you can seek appropriate instructions from the applicant in order to preserve her entitlement to a hearing under section 360 of the Act.
Please note, in the event that the Tribunal does not receive the information it requested within the prescribed timeframe as extended, namely, by 28 February 2017, the applicant will lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.[11]
[9][2010] FMCA 598 (10 December 2010)
[10]Singh v MIBP [2014] FCCA 1403 (Judge McGuire, 13 August 2014)
[11]T1, f.46-47
On 24 February 2017[12] the Tribunal received the following from the applicant’s representative:
As you are aware, we act on behalf of the above named client in respect of her pending appeal at the Tribunal.
Please note we expressly do not authorise further communication by email. We kindly request that you send all further correspondence by post. Please find enclosed ‘Appointment of Representative Appointment of Authorised Recipient – MR Division’ confirming this.
…
[Representative’s emphasis]
[12]T1, f.48-50
The accompanying form (dated 24 February 2017[13]) dealing with the representative’s appointment to act as the applicant’s representative / authorised recipient specifically stated that email was “not authorised”.
[13]T1, f.48
At 8.25pm on 28 February 2017[14] the Tribunal received an email from the office of the applicant’s representative relevantly stating the following:
We refer to the Tribunals letter dated 23 February 2017 advising of its view that it will not provide the applicant with a hearing in this matter unless the information identified in its earlier letter dated 14 February invoking s 359 of the Act is provided and extending the time in which to do so to today.
The review applicant intends to travel offshore in or around mid-April 2017. Whilst offshore, she intends to lodge a Partner (subclasses 309/100) visa application. In order that she can depart Australia as the holder of a bridging A visa and thus not be subject to re-entry limitations in both Special Return Criterion 5002 and PIC 4014, we would be grateful if, as in Singh's case, the Tribunal would postpone making a decision in this matter until 14 days from tomorrow.
We thank the Tribunal for its assistance.
…
[14]T1, f.51
On 1 March 2017[15] the Tribunal requested clarification from the representative regarding this request. On 1 March 2017[16] the Tribunal received the following email:
Further to your telephone conversation with [Representative] of our office today, we confirm that Ms McMichael will depart Australia on 12 April 2017.
Accordingly, we request that the Tribunal postpone making a decision in respect of Ms McMichael’s review application until a date on or after 10 March 2017, giving her the opportunity to depart Australia whilst still holding a bridging A visa.
We thank you for your cooperation.
…
[15]T1, f.52
[16]T1, f.53
The only other correspondence the Tribunal has received to date was an email (dated 7 March 2017[17]) setting out the representative’s general availability for hearings in respect of all matters she currently has before the Tribunal, including this application for review.
[17]T1, f.54
The Loss of the Right to a Hearing before the Tribunal
The Tribunal notes that the invitation to provide information under subsection 359(2) of the Act was sent to the last address for service provided by the applicant in connection with the application for review.[18]
[18]T1, f.8 reverse & 31
In addition, when the invitation could not be delivered on 31 January 2017[19] to the email address the applicant had nominated in her application for review (Form M1), the Tribunal attempted to telephone the applicant about this matter. As the call was not answered, the Tribunal left a voice message for the applicant to contact it urgently.[20] The Tribunal also sent a courtesy copy of the invitation to the applicant, in which it also outlined its reasons for doing so, on 1 February 2017. This courtesy copy was sent to the applicant via an alternative email address for her available from departmental records.[21]
[19]T1, f.32-33
[20]T1, f.34
[21]T1, f.35
The Tribunal observes that in her written submission dated 14 February 2017, the applicant’s representative specifically referred to the Tribunal invitation dated 31 January 2017.[22]
[22]T1, f.38
In addition, the Tribunal notes that its letter (dated 14 February 2017) granting the applicant an extension of time was sent to the applicant’s current representative via email and in accordance with the appointment of representative form she had provided to the Tribunal on 14 February 2017.[23] There were no issues with the electronic transmission of this letter to the representative’s email address on this date.[24]
[23]T1, f.55
[24]T1, f.42
In relation to the applicant’s entitlement to a hearing, the Tribunal notes that in her submission dated 14 February 2017 the applicant’s representative argued that the decision in Saba Bros applied. As a result, she submitted that the Tribunal would be in breach of its obligations under section 360 of the Act if it proceeded to an adverse decision without first permitting the applicant to attend a hearing.[25]
[25]T1, f.37-38
Section 359C(1) of the Act provides as follows:
Section 359C Failure to give information, comments or response in response to written invitation
359C(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2)If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
Section 360 Tribunal must invite applicant to appear
360(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 363A Tribunal does not have power to permit a person to do something he or she is not entitled to do
363AIf a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
[Tribunal emphasis]
As the applicant has failed to provide the requested information before the time for giving it has passed, subsection 359C(1) applies and the Tribunal may make a decision on the review without taking any further action to obtain the information.
Further, as subsection 359C(1) applies to the applicant, subsection 360(3) states that the applicant is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a person to do something he or she is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.
The Tribunal observes that in Yang v Minister for Immigration and Citizenship[26] the Court held that where an applicant fails to provide the information specifically requested by the Tribunal in an invitation under section 359(2) of the Act, then subsection 359C(1) of the Act applies. As a result, the Court held that the Tribunal does not have any power to invite the applicant to a hearing because of the effect of section 363A of the Act[27].
[26] [2010] FMCA 890
[27] [2010] FMCA 890 at [40]
In addition, in Singh v Minister for Immigration and Border Protection[28] in finding that a request by the applicant for an extension of time did not constitute a response to the Tribunal’s request for information of the applicant’s competency in English, the Court distinguished Saba Bros on the basis that that case was concerned with an invitation to ‘comment or respond’ pursuant to subsection 359A(1)(c), and not an invitation to ‘give information’ pursuant to subsection 359(2).
[28]Singh v MIBP [2014] FCCA 1403 (Judge McGuire, 13 August 2014)
Notably, the wording of subsection 359C(1) differs from that in subsection 359C(2), as it requires the applicant to provide “the information” she was invited to provide under section 359, rather than “a response”.
The Tribunal further notes that when sections 359C and 360 were introduced to the Act, the Explanatory Memorandum relating to these amendments indicated that the purpose of the proposed amendments was to allow the Tribunal to make a decision without any delay if the applicant failed to provide the requested information within the prescribed period.[29]
[29] Migration Legislation Amendment Bill (No. 1) 1998 Explanatory Memorandum, Item 22, paragraph 37. See also Migration Legislation Amendment Bill (No. 1) 1998, Bills Digest No.44 1998-99, page 14.
In this case, the applicant was invited to provide information that is relevant to the success of the application for review, namely, information that she has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation for the purposes of paragraph 457.223(4)(da) of the Regulations.
Further, and despite the fact that it had no legal obligation to do so, as soon as the Tribunal became aware that there might be an issue regarding the applicant’s entitlement to a hearing, the current Tribunal took the additional step of informing the applicant’s representative that her legal submissions on 14 February 2017 appeared to be misguided and that the applicant was required to provide the requested information in order to preserve her right to a hearing. The Tribunal did so in the interests of procedural fairness. Notwithstanding, the applicant through her representative, who is identified on office letterhead as an accredited specialist in immigration law, chose not to do so.
Accordingly, as the applicant failed to give the information requested within the prescribed period, the Tribunal finds that she has lost her right to appear before it to give evidence and present arguments relating to the application for review.
The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act as requested by the applicant’s representative on 1 March 2017.
In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[30] and Manna v Minister for Immigration and Citizenship[31] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[32] regarding the reasonableness of any request for an adjournment, as well as the recent Full Federal Court decision in Minister for Immigration and Border Protection v Singh[33] which also considered this issue.
[30][2002] FCA 617
[31][2012] FMCA 28
[32][2013] HCA 18 (8 May 2013)
[33][2014] FCAFC 1 (4 February 2014)
In this case, the applicant provided a copy of the primary decision record with the application for review she lodged on 4 March 2016. Accordingly, the Tribunal observes that the applicant has been aware of the reasons for the refusal of her visa application for approximately 13 months at the time of the Tribunal decision.
The Tribunal also invited the applicant to provide information relevant to the review on 31 January 2017, and it sent a courtesy copy of this invitation to her on 1 February 2017. The Tribunal notes that the applicant appointed a registered migration agent to assist her with the application for review on 14 February 2017, who indicated on this date that she was aware of the Tribunal invitation.
In addition, the Tribunal has taken into account that it granted the applicant an extension of time on 14 February 2017, and the relevant letter clearly stated that the Tribunal should receive the requested information by 28 February 2017. It also sent a follow-up letter regarding this matter on 23 February 2017 to ensure that the applicant and her representative clearly understood what was required. However, the applicant and her representative did not provide the information requested within the prescribed period.
On 1 March 2017 the applicant’s representative’s requested that the Tribunal defer its decision in this matter until, on or after, 10 March 2017, so that the applicant can depart Australia on 12 April 2017 for the unrelated purpose of lodging an application for a Partner visa (subclasses 309/100). The Tribunal has deferred its decision to the date requested.
However, in the circumstances, and given that the applicant has not provided information or submissions addressing the central issue in the application for review, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act any further to allow the applicant more time to submit evidence relevant to the application for review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements of paragraph 457.223(4)(da) of the Regulations.
The Tribunal notes that paragraph 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation, rather than the nominated position.
The concept “nominated occupation” is not specifically defined in the legislation. However, this term is used in paragraphs 457.223(4)(aa) and (ba). Specifically, in these provisions “nominated occupation” appears by reference to the relevant legislative instrument that sets out the ANZSCO occupations for which a subclass 457 visa can be granted. Notably, unlike paragraph 457.223(4)(d) which requires the position associated with the nominated occupation to be genuine, thereby linking it to an approved nomination, paragraph 457.223(4)(da) does not make the same connection between the nominated occupation and the approved nomination.
In this case, a ‘Real Estate Representative’ (ANZSCO Code 612115) is specified in legislative instrument IMMI 16/059 as an occupation for the purposes of the subclass 457 visa application the applicant made on 21 September 2015.
The Tribunal observes that neither the applicant nor her representative have at any time disputed that the nominated occupation is a ‘Real Estate Representative’ (ANZSCO Code 612115), as set out in the primary decision record that accompanied the application for review.
Accordingly, as the visa application was refused on the basis that the applicant lacked the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of a ‘Real Estate Representative’, the Tribunal has decided to undertake the application for review by assessing whether the applicant meets the requirements of paragraph 457.223(4)(da).
In relation to the requirements of paragraph 457.223(4)(da), the departmental policy guidelines in PAM3[34] provide:
[34]PAM3: ‘Procedures Advice Manual 3’
Assessment against the nominated occupation in ANZSCO
Under regulation 2.72(10)(e)(iv), for nominations made on or after 1 July 2010, the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified:
· for the occupation in the relevant ANZSCO code or
· if there is no ANZSCO code for the nominated occupation, the occupation in the legislative instrument for the purpose of regulation 2.72(10)(aa).
· Note:
· Australian and New Zealand Standard Classification of Occupations (ANZSCO) sets out the indicative skill level and the duties and/or tasks relevant to an occupation. The ANZSCO is administered by Australian Bureau of Statistics.
· Not all occupations on the ANZSCO are suitable for nominations under the 457 programme. The nominated occupation must be included on the Consolidated Sponsored Occupation List (CSOL) – refer, in the 457 nomination PAM, to:
o Occupation specified in the latest legislative instrument.
· 457.223(4)(d) may be considered met if is necessary for the visa applicant to hold registration, licensing or professional membership to perform the nominated occupation, and they provide evidence of holding this – refer to:
o Registration and licensing.
· Nominations made before 1 July 2010 are covered by regulation 2.72(10)(d)(iv).
When assessing this criterion, ANZSCO should be referred to as the principal source of information on the normal tasks or duties and skill requirements for the nominated occupation.
In ANZSCO, skill level references represent the entry level skills required for a particular occupation. The skill level is defined at the Unit Group (4 digit level). In some cases, a higher qualification or level of experience will be required to complete the full range of duties competently. Officers should refer to the indicative skill level specified for the nominated occupation rather than the generic ANZSCO Skill Level.
In some occupations (for teachers, barristers and nurses) formal qualifications are mandatory to undertake the role and the applicant must provide evidence of holding these qualifications with the application. In other occupations, significant experience in performing the tasks of the nominated occupation at a competent level can be considered as equivalent to formal qualifications.
In all cases, officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation.
ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation. However, when making their assessment officers should be mindful that the qualifications and experience of the applicant must be relevant to the nominated occupation. As two examples:
· ANZSCO suggests that an architect should hold a bachelor degree or higher qualification. If an applicant was nominated as an architect and provided evidence of holding a Bachelor of Law degree, it would be inappropriate to grant the visa without obtaining further evidence of relevant qualifications.
· ANZSCO suggests that a marketing specialist should also hold a bachelor degree or higher qualification. If an applicant was nominated as a marketing specialist and they held a bachelor degree in advertising for example, this degree would be relevant to the occupation of marketing specialist so the decision maker could be satisfied that the applicant had the requisite skills.
If an applicant is unable to demonstrate skills and experience in a range of tasks, officers should consider whether or not the applicant is able to attribute 100% of their skills and experience to one of the sub-set of tasks prescribed.
Although it is more favourable from an employer’s perspective, for an applicant to possess a range of skills and experience that covers the breadth of tasks prescribed under the nominated occupation, it should not provide grounds for refusal of the applicant’s application. For example, if an applicant were to nominate an occupation listed under a “not elsewhere classified” heading, it would be unreasonable to consider that the applicant possesses skills and experience in every prescribed task.
Officers should also consider that some applicants will be highly skilled yet specialised in a small range of tasks rather than the range of duties. As this program is designed to enable employers to meet skill shortages, this degree of specialisation is acceptable for applicants for the program.
[Tribunal emphasis]
The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.[35] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[36]
[35] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
[36] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209 Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 (at [55]
Nevertheless, the Tribunal considers that the policy guidelines provide a useful starting point for the purposes of assessing whether the visa applicant meets the requirements of paragraph 457.223(4)(da) at the time of decision.
In addition, as paragraph 457.223(4)(da) places the nominated occupation at the centre of its focus, the Tribunal also considers it appropriate to have regard to ANZSCO Code 612115 for a ‘Real Estate Representative’ in assessing whether the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.
The Tribunal further notes that the Courts have generally endorsed ANZSCO as a consistent and authoritative set of definitional rules and descriptions for classifying occupations: Parekh v Minister for Immigration and Citizenship[37] (‘Parekh’s case’) and Wang v Minister for Immigration and Multicultural and Indigenous Affairs[38] (‘Wang’s case’).
[37] See Parekh v Minister for Immigration and Citizenship [2007] FMCA 633 (where the Court provided such approval in respect of ASCO the predecessor to ANZSCO in a subclass 495 case).
[38] Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843 took a similar approach in a subclass 136 case
On the other hand, the Tribunal acknowledges that Parekh’s and Wang’s cases involved different legislative provisions[39], rather than the interpretation of paragraph 457.223(4)(da). It also notes that occupational assessments are complex and dynamic, as well as the likely statistical limitations ANZSCO may well have in properly classifying individual occupations throughout Australia and New Zealand.
[39]ibid
For the purposes of paragraph 457.223(4)(da), ANZSCO specifies the skill level for a ‘Real Estate Representative’ as follows:
UNIT GROUP 6121 REAL ESTATE SALES AGENTS
REAL ESTATE SALES AGENTS sell, lease and manage commercial and private properties, and broker the buying and selling of businesses.
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 Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)
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.
Registration or licensing may be required.
The occupation Real Estate Agency Principal (Aus) / Real Estate Agency Licensee (NZ) has 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)
In New Zealand: NZ Register 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.
Tasks Include:
· accepting and listing properties and businesses for sale and lease, conducting inspections, and advising buyers on the merits of properties and businesses and the terms of sale or lease
· advising vendors of sales and marketing options such as sale by auction and open house inspections
· cataloguing and detailing land, buildings and businesses for sale or lease and arranging advertising
· assessing buyers' needs and locating properties and businesses for their consideration
· offering valuations and advice for buying and selling properties and businesses, and structuring the terms of settlement
· collecting and holding rent monies from tenants, and remitting to owner on agreed basis
· monitoring and addressing non-compliance with terms and conditions of tenancy and pursuing rental arrears
· developing and implementing business plans, budgets, policies and procedures for the agency
· may arrange finance, land brokerage, conveyancing and maintenance of premises
Occupations:
612111 Business Broker
612112 Property Manager
612113 Real Estate Agency Principal (Aus) / Real Estate Agency Licensee (NZ)
612114 Real Estate Agent
612115 Real Estate Representative
612111 BUSINESS BROKER
Alternative Title: Business Agent
Operates as an independent agent in the buying and selling of businesses. Registration or licensing may be required.
Skill Level: 3
Specialisation:
Franchise Broker
612112 PROPERTY MANAGER
Supervises the leasing of rental properties on behalf of owners. Registration or licensing may be required.
Skill Level: 3
Specialisation:
Body Corporate Manager
612113 REAL ESTATE AGENCY PRINCIPAL (AUS) / REAL ESTATE AGENCY LICENSEE (NZ)
Manages the overall activities of a real estate agency. Registration or licensing is required.
Skill Level: 2
612114 REAL ESTATE AGENT
Coordinates the activities of real estate representatives in selling and leasing real estate, ensuring compliance with legislative requirements. Registration or licensing is required.
Skill Level: 3
612115 REAL ESTATE REPRESENTATIVE
Alternative Titles: Real Estate Salesperson
Real Estate Subagent
Arranges the conduct of real estate transactions such as sales and leasing, and assists buyers to find suitable properties, on behalf of an agency. Registration or licensing is required.
Skill Level: 3
Specialisation:
Property Portfolio Officer
The Tribunal notes that the applicant is aged approximately 28 years at the time of decision. In terms of her qualifications, the applicant listed her educational qualifications as a ‘Certificate IV in Property Services’ in her visa application. She also stated that she was due to undertake accreditation as an auctioneer in 2016, as well as training in relation to ‘Open for Inspection’ accreditation, sales administration, listing presentations and shadowing the sales manager within months of lodging her application in September 2015. The applicant also stated that she had special skills in sales management, particularly in training staff and top sales representatives. She further referred to awards in respect of “top manager, top representative, computer skills, and telecommunications negotiation”. [40]
[40]D1, f.5
However, the evidence before the Tribunal to support these claims is limited. This is despite the fact that the Tribunal invited the applicant and her representative to provide information that would support the application for review.
In addition, the Tribunal notes that in an undated written statement to the Department the applicant advised that she had completed part of the ‘Certificate IV in Property Services’. She also stated that that she was due to complete the remaining modules to get her full agents licence in 2016.[41] In other words, the applicant acknowledged to the Department that she had completed her ‘Certificate IV in Property Services’ at that time.
[41]D1, f.24
Notably, the certificates of attainment the applicant submitted to the Department confirm that she had completed three units of competency as at 19 January 2015. These certificates also state that these competencies form part of the ‘Certificate IV in Property Services (Real Estate)’ CPP40307; they make no reference to the applicant having completed this course.[42] Importantly, although the applicant has been provided with the opportunity to do so, she has not provided any further information to the Tribunal regarding this matter.
[42]D1, f.54-57
Accordingly, on the basis of the evidence before it, whilst the Tribunal accepts that the applicant was enrolled in a ‘Certificate IV in Property Services’ prior to January 2015, it is not satisfied that she has completed this qualification at the time of decision.
The Tribunal has had regard to the fact that ANZSCO alternatively provides that an AQF Certificate III, including at least two years of on-the-job training, would suffice to meet the skill level set for Unit Group 6121 Real Estate Sales Agents.
However, there is little in the evidence to suggest that the applicant has completed an AQF Certificate III. As a result, given the evidence before it, the Tribunal finds that the applicant does not hold either an AQF Certificate III or IV qualification that would align with the skill level set out in ANZSCO for a ‘Real Estate Representative’.
In considering the issues before it, the Tribunal has also had regard to the applicant’s claimed employment background. Specifically, in her visa application[43] the applicant stated that her past employment included the following roles:
· Eye Candy Make-up: Manager, 16 December 2010 – 31 May 2013 (2 years 5 months)
· KK Sales and Marketing: Sales Team Leader / Channel Manager, 18 November 2013 – 11 July 2014 (8 months)
· KVP Sales and Marketing: Sales Channel Manager, 14 July 2014 – 12 December 2014 (5 months)
· Australian Lawn Wholesalers: Sales consultant, 9 February 2015 – 17 August 2015 (6 months)
[43]D1, f.3-4
In addition, the Tribunal has considered the payslips and remittances provided to the applicant from November 2013 to July 2015[44], as well as the 2014 and 2015 PAYG summaries[45] issued to her that confirm this employment. The Tribunal has also taken into account the applicant’s contract of employment with Hocking Stuart Richmond (dated 31 August 2015[46]) as a sales consultant, which stated that her employment in this role was due to commence on 7 September 2015.
[44]D1, f.15-17, 25-35, 77-79 & 111-113
[45]D1, f.13-14 & 18-23
[46]D1, f.49-53
In addition, the Tribunal notes that the applicant also submitted copies of the position description for a ‘Sales Consultant’ at Hocking Stuart and its advertisement for a sales cadet on seek.com in support of her visa application.[47]
[47]D1, f.41-46
On the other hand, whilst the evidence the applicant has provided with her visa application suggests that she has an employment background in general sales and/or marketing, there is little in this evidence to indicate that her employment in the positions she identified exposed her to the types of tasks performed in occupations associated with ANZSCO Unit Group 6121 Real Estate Sales Agents.
For example, there is little to suggest that the applicant’s past employment required her to accept and list properties and businesses for sale and lease. The evidence also does not indicate that the applicant was required to conduct property inspections, or advise buyers on the merits of different properties and/or businesses, including discussing terms of sale or lease. Similarly, there is little that points to the applicant being involved in advising vendors of sales and marketing options, such as sales by auction, open house inspections and the like. The evidence is also limited in terms of the extent to which the applicant has been involved in the preparation of valuations and / or the management of either residential or commercial tenancies.
The Tribunal accepts that the applicant may have had some past experience in marketing products such that she has an ability to increase and/or meet sales targets, as well as train staff and build teams. It also does not dispute that the job description for the sales consultant position at Hocking Stuart Richmond would expose the applicant to a range of real estate activities, such as listing properties for sale, negotiating with parties to facilitate sales, generating appraisals and representing the agency at local community functions.
However, the Tribunal is not satisfied that the evidence before it indicates that the applicant has an employment background, or sufficient relevant experience in the conduct of real estate transactions such as sales and leasing, and assisting buyers to find suitable properties, on behalf of an agency, at the level that might be expected of a ‘Real Estate Representative’ in line with the tasks set out in ANZSCO.
Although the Tribunal invited the applicant and her representative to provide information that would confirm that she had the skills, qualifications and employment background that the Minister considers necessary to perform the nominated occupation of ‘Real Estate Representative’, they did not do so.
In the circumstances, given the evidence before it, the Tribunal is not satisfied that the applicant has two years’ on-the-job experience in the real estate industry that could potentially substitute for the absence of her formal qualifications for this occupation. Accordingly, having regard to the evidence as a whole, the Tribunal is not satisfied the applicant has undertaken to a reasonable extent the tasks listed in ANZSCO Code 612115 in the context of her past employment.
Therefore, based on the limited evidence before it and having regard to the wording of subparagraph 457.223(4)(da), ANZSCO and the relevant departmental policy guidelines set out above, the Tribunal is not satisfied that the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the nominated occupation of a ‘Real Estate Representative’ (ANZSCO Code 612115).
As a result, the Tribunal finds that the applicant does not meet the requirements of paragraph 457.223(4)(da) at the time of its decision. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Danica Buljan
Member
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