Qureshi (Migration) [2017] AATA 1883 (11 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Zeeshan Ahsan Qureshi
CASE NUMBER: 1615544
DIBP REFERENCE(S): BCC2016/1702680
MEMBER:Antonio Dronjic
DATE OF ORAL DECISION: 11 October 2017
DATE OF WRITTEN STATEMENT: 11 October 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 11 October 2017 at 3:25pm
CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications and employment background necessary to perform the tasks of the nominated occupation – Cook – Applicant has substantial and relevant work experience
LEGISLATION
Migration Act 1958, ss 65, 359(2)
Migration Regulation 1994, 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
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 11 May 2016.
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 6 September 2016 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a Cook.
The applicant applied to the tribunal on 23 September 2016 for review of the delegate’s decision. With the review application, the applicant provided a copy of the primary decision record.
On 7 April 2017, the tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information in writing that demonstrate that he meets the requirements of cl.457.223(4) (da).
On 12 April 2017, the applicants’ representative submitted:
·Copy PAYG payment summary for the nominee for 2014/15 and 2015/16 financial years;
·Copy pay slip as evidence of payment of wages during the period from 3 April 2017 to 9 April 2017;
·Nominee’s Resume;
·Copy Certificate III and…
Details
AGLC
Qureshi (Migration) [2017] AATA 1883
Case
[2017] AATA 1883
Decision Date
CaseChat Overview and Summary
The case involved an applicant seeking a Temporary Business Entry (Class UC) visa, Subclass 457. The primary dispute concerned whether the applicant possessed the necessary skills, qualifications, and employment background to perform the nominated occupation of a Cook, as required by clause 457.223(4)(da) of the relevant regulations. The matter was heard by a Member of the Tribunal.
The Tribunal was required to determine if the applicant met the criteria under clause 457.223(4)(da), which mandates that an applicant must have the skills, qualifications, and employment background considered necessary by the Minister to perform the tasks of the nominated occupation. The Tribunal also considered the indicative skill level and duties for a Cook as outlined in the ANZSCO, noting that the entry requirement for this occupation is typically an AQF Certificate III with at least two years of on-the-job training or an AQF Certificate IV.
In its reasoning, the Tribunal adopted an approach that moved beyond a narrow matching of tasks to an occupational definition, favouring an assessment of the applicant's skills and their application to the nominated role, consistent with the principles in *Joshi v Minister for Immigration and Multicultural and Indigenous Affairs* [2005] FMCA 1116. The Tribunal found that the applicant had satisfied the qualification requirements through evidence of completing a Certificate III and IV in Commercial Cookery via recognition of prior learning. Furthermore, based on work reference letters and testimony from the sponsoring business's Executive Chef, the Tribunal was satisfied that the applicant possessed substantial and relevant work experience, demonstrating the necessary skills and employment background for the nominated occupation.
Consequently, the Tribunal remitted the visa application to the Minister for reconsideration, with a specific finding that the applicant met the criteria under clause 457.223(4)(da). The Minister was directed to consider the remaining criteria for the Subclass 457 visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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 Cook. 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. The tribunal has had careful regard to the tasks and duties and the indicative skill level for the occupation of a Cook as described in the ANZSCO, and the tribunal regards these ANZSCO indications as important considerations. The entry requirement for the nominated occupation of a Cook is AQF Certificate III including at least two years of on the job training or AQF Certificate IV (ANZSCO Skill Level 3). With his review application, the applicant presented to the tribunal evidence of completing a Certificate III and IV in Commercial Cookery awarded through the recognition of prior learning process (RPL). Based on the evidence before me, including the applicant’s oral evidence and transcript of results listing the subject completed by the applicant, I am satisfied that the applicant has the necessary qualifications to perform the nominated role. I am satisfied that the applicant has the requisite level of education commensurate with the nominated position. In addition, I am satisfied that the applicant developed the skills necessary to perform the role of a Cook through his employment history. Based on the work reference letters submitted by the applicant and in particular testimony of Mr Bonello, the Executive Chef of the sponsoring business, I am satisfied that the applicant has substantial and relevant work experience. I considered the reference letters from his current employer dated 6 May 2016 (submitted to the department); letter from Mr Bonello, the Executive Chef of the sponsoring employer dated 11 April 2017, letter from Ms Munro dated 12 April 2017 and letter from Ms Booth dated 14 June 2017. Based on the evidence before it, the tribunal is satisfied that the applicant has the skills and employment background necessary to perform the tasks of the nominated occupation, and thus finds that he satisfies cl.457.223(4)(da) at the time of the tribunal’s 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
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).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 Cook. 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. The tribunal has had careful regard to the tasks and duties and the indicative skill level for the occupation of a Cook as described in the ANZSCO, and the tribunal regards these ANZSCO indications as important considerations. The entry requirement for the nominated occupation of a Cook is AQF Certificate III including at least two years of on the job training or AQF Certificate IV (ANZSCO Skill Level 3). With his review application, the applicant presented to the tribunal evidence of completing a Certificate III and IV in Commercial Cookery awarded through the recognition of prior learning process (RPL). Based on the evidence before me, including the applicant’s oral evidence and transcript of results listing the subject completed by the applicant, I am satisfied that the applicant has the necessary qualifications to perform the nominated role. I am satisfied that the applicant has the requisite level of education commensurate with the nominated position. In addition, I am satisfied that the applicant developed the skills necessary to perform the role of a Cook through his employment history. Based on the work reference letters submitted by the applicant and in particular testimony of Mr Bonello, the Executive Chef of the sponsoring business, I am satisfied that the applicant has substantial and relevant work experience. I considered the reference letters from his current employer dated 6 May 2016 (submitted to the department); letter from Mr Bonello, the Executive Chef of the sponsoring employer dated 11 April 2017, letter from Ms Munro dated 12 April 2017 and letter from Ms Booth dated 14 June 2017. Based on the evidence before it, the tribunal is satisfied that the applicant has the skills and employment background necessary to perform the tasks of the nominated occupation, and thus finds that he satisfies cl.457.223(4)(da) at the time of the tribunal’s decision.
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.Antonio DronjicMemberATTACHMENT - 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.