Rengifo Rubio (Migration)

[2019] AATA 5912

Rengifo Rubio (Migration) [2019] AATA 5912 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lourdes Maria Rengifo Rubio

CASE NUMBER:  1711186

DIBP REFERENCE(S):  BCC2016/3725856

MEMBER:Mary Sheargold

DATE:19 December 2019

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 criterion for a Subclass 457 visa:

·cl.457.223(4)(da) of Schedule 2 to the Regulations

Statement made on 19 December 2019 at 3:21pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – nominated occupation requirements – CV provided – duty statement provided – relevant employment background – decision under review remitted

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 November 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 visa on 11 May 2017 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had demonstrated that she had the skills, qualifications and employment background necessary to successfully perform the tasks of the nominated occupation.

5. The applicant was represented in relation to the review by her registered migration agent, Ms Maria Jockel of BDO Migration Services Pty Ltd.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. On 12 December 2019, the Tribunal wrote to the applicant requesting an updated curriculum vitae in support of the application, along with any accompanying submissions, and advised that such documents could be provided by 19 December 2019.  The letter advised that, on consideration of such documents and submissions, the Tribunal would seek to exercise its discretion to make a favourable finding on this application without proceeding to hearing.

9. On 13 December 2019, the applicant’s representative provided detailed submissions in support of the application along with evidence in respect of the applicant’s recent employment history.

   Skills, qualification and employment background of the applicant

10. 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 Education Manager nec, ANZSCO 134499.

11. According to the ANZSCO, the nominated occupation of Education Manager nec is rated at ANZSCO skill level 1, and the tasks for the occupation unit group of 1344 Other Education Managers are:

    ·coordinating the educational, administrative and financial affairs of an educational institution or department within the institution;

    ·researching, developing, implementing, reviewing and evaluating educational and administrative policy;

    ·liaising between educational institutions, parents and the wider community;

    ·providing advice on policy and procedures to staff and students;

    ·consulting with academic and administrative staff to coordinate educational programs;

    ·identifying and addressing present and future needs for student and staff development;

    ·researching educational systems and monitoring and evaluating new developments;

    ·researching and reporting on students’ needs arising from curriculum implementation; and

    ·developing and delivering training programs for teachers.

12. ANZSCO states that “most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification and at least five years of relevant experience.  In some instances relevant experience may substitute for the formal qualification.”

13. Adam Davis, CEO of the Australian Learning Group Pty Ltd, has provided a duty statement dated 9 December 2019 in respect of the applicant.  The letter states that the applicant has worked in the position of Campus Manager from April 2015 to present, and notes that she is responsible for the daily management of the Melbourne campuses for the Australian Learning Group Pty Ltd.  The Tribunal notes that Australian Learning Group Pty Ltd encompasses a number of private colleges including the Australian College or Sport & Fitness, the Australian College of Dance, and 4Life College.  The Tribunal notes that, given the significant effluxion of time since the delegate’s decision was made, as at the date of this decision, the applicant has demonstrated almost 5 years of relevant experience in this role alone.

14. In determining whether this current role gives the applicant the employment background necessary to perform the tasks of the nominated occupation of Education Manager nec, the Tribunal notes Mr Davis’s list of duties performed by the applicant as follows:

    ·manage a growing team to ensure high standards of operation for the Melbourne Campuses by managing and coordinating the educational and administrative tasks;

    ·implement prescribed strategies and procedures to daily operations of the unit in line with government and industry standards;

    ·monitor KPIs and results for the unit and make business adjustments accordingly.  This includes identifying and addressing present and future needs for students and staff development;

    ·manage customer service standards of self and team including providing advice on policy and procedures to staff and students;

    ·manage administrative duties with efficiency and accuracy;

    ·manage for constant growth and improvement of Melbourne;

    ·have input to the research, develop, implement and review operational educational and administrative policy for the college;

    ·provide regular management reporting of results;

    ·supporting and develop marketing initiatives for the company; and

    ·support and develop sales initiatives for the company.

15. While the Tribunal acknowledges that the wording of the duty statement in respect of the applicant does not mirror the wording of the task list set out in ANZSCO 1344, the Tribunal finds there is a significant correlation between the tasks, and finds that the experience gained by the applicant in her current role demonstrates an employment background that is necessary to perform the tasks of the nominated occupation.

16. The Tribunal has considered the relevant employment background set out in the applicant’s updated curriculum vitae as provided to the Tribunal on 13 December 2019.  The Tribunal notes that prior to commencing her current role, the applicant worked as a Marketing and Student Services Coordinator for a period of 9 months at INUS Australia Education and Training in Melbourne, Australia, and prior to that, she worked as a Student Services Officer at the South Australian Institute of Technology and Centre of English Language in the University of South Australia with the Navitas Group for a period of 8 months.  Prior to that role, the applicant worked for 16 months as a Marketing and Recruitment Coordinator at the Lonsdale Institute in Melbourne.

17. The applicant’s updated curriculum vitae identifies the applicant’s duties and responsibilities in each of these roles.  In summary, these roles gave the applicant the opportunity to develop skills necessary to perform the role of Education Manager nec, and included duties such as:

    ·providing advice and counselling to students and prospective students regarding enrolment in courses;

    ·monitoring and assessing new developments in the education sector and reporting to management;

    ·representing organisations at educational events and marketing activities;

    ·recording, storing, and reporting student data on a regular basis;

    ·coordinating orientation activities for new students; and

    ·general administrative tasks relating to the management of student enrolments and data.

18. Having considered the applicant’s updated curriculum vitae, the Tribunal finds the applicant has approximately 7.5 years of relevant employment background necessary for her to perform the tasks of the nominated occupation.  Having considered the applicant’s list of achievements in her various roles, as set out in her curriculum vitae, as well as the letters of recommendation from her previous employers provided to the Tribunal on 13 December 2019, as well as the CEO of her current employer, Australian Learning Group Pty Ltd, the Tribunal is persuaded that the applicant possesses the necessary skills to perform the tasks of an Education Manager.  The Tribunal notes the representative’s submission that these letters of recommendation had been omitted when the application was submitted to the Department, and notes that this may have had a material impact on the delegate’s reasoning in refusing to approve the application: in the decision record, the delegate noted that limited weight was attached to the applicant’s claimed duties and responsibilities “listed in the CV in the absence of independently verifiable evidence”.

19. The Tribunal has considered the applicant’s formal qualifications, and notes she holds a Bachelor of Social Science in Anthropology, a Certificate Diploma in Social Corporate Responsibility, and an Advanced Diploma of Business.  The Tribunal notes the representative’s submission that the formal qualification held at a Bachelor degree level, being a qualification relevant to an occupation classified at an ANZSCO Skill Level 1, does not need to be directly relevant to the applicant’s field of endeavour in order to be relied upon to satisfy cl.457.223(4)(da).  Relevantly to this application, the Tribunal notes that some of the specialist occupations under the unit group Education Managers 1344 are that of a Dean or Faculty Head within a university.  The Tribunal observes that such persons would hold Bachelor degrees, and higher degrees, in their field of expertise, but that they are unlikely to hold a Bachelor level degree in education management, nor would it be reasonable to expect them to do so.  Further, the Tribunal observes that earning a Bachelor of Social Science majoring in anthropology could contribute to the applicant’s capacity to act in a management position within an educational institution.

20. Based on all the evidence before it, the Tribunal is satisfied that the applicant possesses the relevant skills, qualifications and employment background to perform the tasks of her nominated occupation of Education Manager nec, ANZSCO 134499.

21. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

22. 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

23. 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 criterion for a Subclass 457 visa:

    ·cl.457.223(4)(da) of Schedule 2 to the Regulations.

    Mary Sheargold
    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.