Mooney (Migration)

[2019] AATA 1241

Mooney (Migration) [2019] AATA 1241 (18 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lee Gerard Mooney
Ms Laura Mary Harte

CASE NUMBER:  1621849

DIBP REFERENCE(S):  BCC2016/2580807

MEMBER:Michelle East

DATE:18 January 2019

PLACE OF DECISION:  Perth

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)(a) and (da) of Schedule 2 to the Regulations.

Statement made on 18 January 2019 at 10:55am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Cabler (Data and Telecommunications) – evidence of skills, qualifications and employment background provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 2.72, Schedule 2, cl 457.223

CASES
Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116

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).

2. The visa applicants applied for the visa on 4 August 2016.

3. 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.

4. The delegate refused to grant the visas on 6 December 2016 on the basis that cl.457.223(4)(da)  was not met because the delegate was not satisfied that the applicant had the skills, qualifications and employment background considered necessary to perform the tasks of the nominated occupation of Telecommunications Technician 3424-14.

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

6. Under section 360(2)(a) of the Act the Tribunal considered that it should decide the application for review on the basis of the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. On 18 April 2017, the Minister announced significant changes to the skilled occupations that can be nominated and approved for the purposes of a business nomination application in the Subclass 457 visa program.

10. On 28 June 2017 the Minister issued a further instrument for the specification of occupations for the Subclass 457 visa programme, IMMI 17/060 which took effect on 1 July 2017.

11. The Tribunal wrote to the applicants on 5 September 2017 noting that the nominated occupation of Telecommunications Technician – 342414 had been removed from the list of eligible skilled occupations.  The Tribunal noted that the visa application may no longer meet the requirement in paragraph 457.223(4)(aa) which required the nominated occupation to be specified in the relevant instrument in writing.

12. On 13 September 2017 the applicants’ representative at that time, responded noting the application would still be valid due to the closely related occupation of Cabler (Data and Telecommunications) – 342411 which is still an eligible occupation for the Subclass 457 visa.

13. On 5 July 2018, the applicants’ new representative wrote to the Tribunal advising that the first named applicant (the applicant) was now the subject of an approved nomination under Regulation 2.72 for the position of Cabler (Data and Telecommunications).  The new nomination was submitted on 14 March 2018 and was decided on 9 June 2018.  The evidence before the Tribunal is that a nomination in relation to the applicant was approved by the Minister on 9 June 2018 for the position of Cabler (Data and Telecommunications) ANZSCO 342411.  The nomination has not ceased pursuant to the operation of regulation 2.75.  The Tribunal accordingly finds the applicant satisfies cl.457.223(4)(a).

    Skills, qualification and employment background of the applicant

14. 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 Cabler (Data and Telecommunications) – 342311.

15. The Tribunal accepts that the determination of the application requires more than a narrow matching process between an applicant’s tasks and an ANZSCO occupational definition.  Instead, it is preferable to approach the matter by ascertaining the applicant’s skills and how these skills are to be applied in the nominated occupation: Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116.

16. The Tribunal has had careful regard to the tasks and duties and the indicative skill level for the occupation of Cabler (Data and Telecommunications) as described in the ANZSCO, and the Tribunal regards these ANZSCO indications as important considerations.

17. The tasks and duties of a Cabler (Data and Telecommunications) are: ‘installs internal telecommunications and data cabling, equipment and peripherals for computer networks, telephony, cable television and monitored security and fire alarms’.  The required skill level is level 3, an AQF Certificate III including at least two years of on-the-job training,

18. With their submissions dated 5 July 2018, the applicant’s representative provided copies of the following documents relevant to the applicant:

    -Notice of Decision Nomination Approval Notice for Subclass 457 visa together with notification letter

    -Certificate III in Telecommunications issued 9 March 2017

    -Record of Results for Certificate III

    -Statement of Attainment issued 2 June 2016 of competencies forming part of the Certificate III

    -Employment reference letter dated 19 February 2018.  This confirms the applicant has worked for Datatel since February 2016, working full time.  A comprehensive list of his duties and responsibilities were provided which accord with the tasks and duties in ANZSCO.

    -Sample of pay slips

    -Cabler Registration certificate expiring 21 June 2019

19. Based on the evidence before it, the Tribunal is satisfied that the applicant has the qualifications, skills and employment history necessary to perform the tasks of the nominated occupation and therefore finds that he satisfies cl.457.223(4)(da) at the time of the Tribunal’s decision.

20. 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

21. 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)(a) and (da) of Schedule 2 to the Regulations.

    Michelle East
    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.