Murphy (Migration) - [2017] AATA 391

Murphy (Migration) [2017] AATA 391 (14 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Brian Matthew Murphy
CASE NUMBER:  1510226
DIBP REFERENCE(S):  BCC2015/388125
MEMBER:Mary-Ann Cooper
DATE:14 March 2017
PLACE OF DECISION:  Melbourne
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) of Schedule 2 to the Regulations.
Statement made on 14 March 2017 at 11:19am
CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications and employment background – Subject of approved nomination – Road constructor – Technicians and Trades workers – No formal occupational qualifications – 3 years relevant experience
LEGISLATION

Migration Act 1958, s 65
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 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 4 February 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 10 July 2015 on the basis that cl.457.223(4)(da) of Schedule 2 to the Regulations was not met because s/he was not satisfied that the applicant ahd the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
The applicant appeared before the Tribunal on 10 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from his partner.
The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.
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) however a threshold issue also arose in relation to whether he has an approved nomination: cl.457.223(4)(a).
Requirement for an approved nomination
Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murphy (Migration)

Details

AGLC: Murphy (Migration) [2017] AATA 391
Case: [2017] AATA 391
Decision Date: 14 March 2017

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, brought by the applicant, Murphy. The dispute arose when the initial visa application was refused by the delegate, who was not satisfied that the applicant possessed the necessary skills, qualifications, and employment background for the nominated occupation. The case was heard by the Tribunal, which considered whether the applicant met the requirements of clauses 457.223(4)(a) and 457.223(4)(da) of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant had an approved nomination for the visa and whether the applicant possessed the requisite skills, qualifications, and employment background for the nominated occupation. Specifically, the Tribunal had to determine if the applicant's previous nomination had ceased and if a new nomination, for the occupation of Road constructor within the Technicians and Trades workers nec category, was valid and approved. Furthermore, the Tribunal was required to assess the applicant's experience and qualifications against the requirements of the nominated occupation, considering guidance from the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and the principles established in *Joshi v MIMIA*.

The Tribunal found that while the applicant's initial nomination had ceased, a subsequent nomination for the occupation of Road constructor had been approved. Regarding the applicant's skills, qualifications, and employment background, the Tribunal noted that there is no strict legislative threshold, but that an applicant's attributes and how they are applied in the workplace for remuneration are key considerations, as per *Joshi v MIMIA*. The delegate had refused the visa based on insufficient verification of the applicant's claimed experience for a previous nominated occupation. However, given the change in nominated occupation and the subsequent approval of a new nomination, the Tribunal concluded that the matter should be remitted for reconsideration to allow the Minister to assess the remaining criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

The requirements of cl.457.223(4)(a) are therefore met.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 current nominated occupation is Technicians and Trades workers nec – 399999. There is no threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, although in determining this question, the Tribunal may be guided by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for occupations nominated on or after 1 July 2010. The Tribunal notes, however, that the determination of each application requires more than a narrow matching process between an applicant's tasks and the ANZSCO occupational definition. In an earlier version of this clause, the Court in Joshi v MIMIA held that the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[1] [1] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005). As recorded in the delegate’s decision a copy of which was provided with the review application, the skill level for the applicant’s then nominated occupation of Survey Technician, as indicated in Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary for this occupation, is an AQF Associate Degree, Advanced Diploma or Diploma or at least 3 years of relevant experience. The delegate was not able to verify the applicant’s claimed 3 years’ experience as a Survey technician and was therefore not satisfied he had the skills, qualifications and/or employment background to perform the nominated occupation. Consequently the delegate found cl.457.223(4)(da) was not satisfied and the visa was refused. Prior to the hearing, the applicant provided the same work reference as provided to the delegate but attached a Statutory Declaration, purportedly signed by a former owner of the business, confirming the nature of his employment in Ireland. Given the change in the applicant’s nominated occupation, the Tribunal sought additional materials in respect of his current nominated occupation. These are discussed further below. At the hearing the applicant told the Tribunal of his new employment and requested that it allow further time for the new nomination to be processed. As noted above, that nomination application was approved. It remains for the Tribunal to determine whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the current approved nominated occupation.

Evidence

Evidence Before The Court

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) however a threshold issue also arose in relation to whether he has an approved nomination: cl.457.223(4)(a).Requirement for an approved nomination Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The Tribunal noted that the approved nomination in in relation to the applicant ceased by operation of law on 8 May 2016. In its hearing invitation the Tribunal requested that the applicant to provide information demonstrating that he is the subject of an approved nomination. It was advised that the sponsor ‘had gone out of business’ and a new application had been lodged in respect of the applicant with another sponsor. Following the hearing the applicant provided evidence that his new nominating employer was approved as a sponsor from 20 January 2017 to 20 July 2018 in relation to him, for the position of Road constructor, in the ANZSCO occupation category of Technicians and Trades workers nec – 399999, was approved on 11 February 2017. The requirements of cl.457.223(4)(a) are therefore met.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 current nominated occupation is Technicians and Trades workers nec – 399999. There is no threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, although in determining this question, the Tribunal may be guided by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for occupations nominated on or after 1 July 2010. The Tribunal notes, however, that the determination of each application requires more than a narrow matching process between an applicant's tasks and the ANZSCO occupational definition. In an earlier version of this clause, the Court in Joshi v MIMIA held that the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[1] [1] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005). As recorded in the delegate’s decision a copy of which was provided with the review application, the skill level for the applicant’s then nominated occupation of Survey Technician, as indicated in Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary for this occupation, is an AQF Associate Degree, Advanced Diploma or Diploma or at least 3 years of relevant experience. The delegate was not able to verify the applicant’s claimed 3 years’ experience as a Survey technician and was therefore not satisfied he had the skills, qualifications and/or employment background to perform the nominated occupation. Consequently the delegate found cl.457.223(4)(da) was not satisfied and the visa was refused.

Decision

Reasons for decision

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) of Schedule 2 to the Regulations.Mary-Ann CooperMemberATTACHMENT - 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.

Ratio Decidendi

Legal Principle Established

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