Patel (Migration)

[2020] AATA 461

Patel (Migration) [2020] AATA 461 (18 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaimin Pravinkumar Patel
Mrs Jinal Jaimin Patel
Mr Dhairya Jaimin Patel

CASE NUMBER:  1823933

DIBP REFERENCE(S):  BCC2017/1459057

MEMBER:C. Packer

DATE:18 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 18 February 2020 at 3:04pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – necessary skills, qualification and experience – Program or Project Administrator – negative skills assessment in nominated occupation – education qualifications did not match occupation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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 visas on 21 April 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.

3. The delegate refused to grant the visas on 2 August 2018 on the basis that cl.457.223(4)(e) was not met because the applicant had not provided a skills assessment from VETASSESS when requested to do so by the Department. The applicant was seeking to perform the occupation of Program or Project Administrator (ANZSCO 511112).

4. The applicants appeared before the Tribunal on 18 February 2020 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(e).

   Skills, qualification and employment background of the applicant

7. 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 Program or Project Administrator (ANZSCO 511112).

8. Departmental systems show the nomination of the occupation of Program or Project Administrator (ANZSCO 511112) had been approved on 30 May 2018.

9. In the application the applicant provided information and documents that included:

   ·Certificate IV in Business Administration, awarded 2014

   ·Certificate IV in Business, awarded 2013

   ·Diploma of Business Administration, awarded 2015

   ·Diploma of Business, awarded 2014

   ·Letter dated 27 February 2017 from Cogs Management and Administration, that stated the applicant had worked as a Project Administrator from 1 July 2016 to ‘present’.

10. On 18 May 2017 the Department requested more information, including:

    ·Evidence of a VETASSESS Skills Assessment (Skills Recognition – General Occupations)

11. On 2 July 2018 the Department again requested more information, including:

    ·Evidence of Skills Assessment result – completed VETASSESS Skills Assessment (Skills Recognition – General Occupations)

12. Policy considerations (PAM – Sch2 Visa 457) indicated in part:

    Skills assessments for certain specific nominated occupations

    Applicant is nominated as a Program and Project Administrator (ANZSCO 511112) or a Specialist Manager nec (ANZSCO 139999)

    It is departmental policy that all applicants nominated in the occupations of Program and Project Administrator (ANZSCO 511112) and Specialist Managers nec (ANZSCO 139999) will be required to demonstrate that they meet 457.223(2)(d) or (4)(e) by providing evidence of having completed a Skills Assessment for migration purposes conducted by VETASSESS (General Professional Occupations). A VETASSESS 485 Skills Assessment is not acceptable for this purpose.

13. At hearing the first named applicant stated that:

    ·He had in fact applied to VETASSESS for a skills assessment, however, VETASSESS gave a negative assessment. They indicated that his education qualifications (largely IT subjects) did not match his occupation.

    ·He had applied to the Australian Computer Society and received a successful assessment as a Business Analyst, even though that was not the occupation nominated.

    ·He had worked for COGS Management and Administration up to 2019. He forgets when he last worked for that business.

    ·He now works in a factory.

14. In light of the applicant’s evidence that he received an unsuccessful VETASSESS skills assessment, because his education qualifications (largely IT subjects) did not match his occupation, the Tribunal is not satisfied the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. Additionally, the Tribunal finds that when required by the Minister, the applicant did not demonstrate that he has the skills that are necessary to perform the occupation, by getting a successful VETASSESS assessment.

15. For these reasons the applicant does not satisfy the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).

    Conclusion

16. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    C. Packer
    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.