Shrestha (Migration)

[2019] AATA 6091

Shrestha (Migration) [2019] AATA 6091 (8 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Narendra Shrestha
Ms Manuja Khadka

CASE NUMBER:  1804227

DIBP REFERENCE(S):  BCC2017/1116307

MEMBER:Jennifer Cripps Watts

DATE:8 October 2019

PLACE OF DECISION:  Sydney

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)(da) of Schedule 2 to the Regulations; and

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

Statement made on 08 October 2019 at 12:47pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard Business Sponsor stream – skills , qualifications and employment background necessary to perform tasks of nominated occupation – evidence of qualifications at indicative skill level – agent did not upload copy of qualification with visa application – error by agent, not by applicant – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(da), (e)

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 (the delegate) 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 22 March 2017.

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 15 February 2018 on the basis that cl.457.223(4)(da) was not met because the applicant did not provide evidence of qualifications at the indicative Australian and New Zealand Standard Classification of Occupations (ANZSCO) skill level of a bachelor degree or higher qualifications for the nominated occupation of Management Accountant (221112).

5. The review application was made on 19 February 2018, within time.  The matter was constituted to this member on 12 September 2019.

6. The Tribunal invited the applicants to a scheduled hearing.  Additional documents provided by the applicant were provided by the applicant and the Tribunal was able to decide the review in the applicant’s favour on the basis of the material before it, without a hearing, and the hearing was cancelled on that basis.  The applicant was notified prior to the hearing,

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the visa applicant meets the requirements of cl.457.223(4)(da) and cl.457.223(4)(e) of Schedule 2 to the Regulations.

10. Clause 457.223(4)(da) requires the visa 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 visa 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 Management Accountant, ANZSCO 221112.

11. The ANZSCO Unit Group 2211 describes Accountants as being in an occupation that plans and provides accounting systems and services relating to taxation and the financial dealings of organisations and individuals, and advises on associated record-keeping and compliance requirements.  The indicative skill level is a bachelor degree or higher qualification.  

    Skills, qualification and employment background of the applicant

12. 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 Management Accountant, ANZSCO 221112.

13. The applicant provided the Tribunal with the following relevant documents:

    a.Department letter confirming that Heritage Clothing Company Pty Ltd had a nomination approved on 12 December 2018, nominating the applicant, Narendra Shrestha, in the occupation of Management Accountant, ANZSCO 221112;

    b.Holmes Institute Academic Transcript, Bachelor of Professional Accounting and letter of completion, dated 30 July 2015, indicating that Narendra Shrestha, born 1986, completed all course requirements and was deemed eligible to graduate, that the course was full-time and delivered in the English language;

    c.Certificate of Attainment and Statement of Achievement, Performance Education, indicating that the applicant completed the Skilled Migration Internship Program – Accounting (SMIPA) Professional Year Program in July 2017;

    d.Letter of completion from Performance Education Group relating to the Professional Year Program;

    e.Letter from Chartered Accountants Australia and New Zealand, dated 16 September 2015, indicating that the applicant’s Bachelor of Professional Accounting from Holmes Institute is recognised by them as being ‘comparable to at least an Australian Bachelor degree’ and ‘suitable’ under the nomination occupation classification;

    f.PAYG payment summary, July 2017 to June 2018, indicating that the applicant was paid gross payments of $67,031 by Peter Jackson Retail Pty Ltd;

    g.PAYG payment summary, July 2018 to June 2019, indicating that the applicant was paid gross payments of $77,760 by Peter Jackson Retail Pty Ltd;

    h.Letter from the applicant’s migration agent to the Tribunal, dated 19 February 2018 (four days after the visas were refused), stating that he mistakenly did not upload a copy of the applicant’s Bachelor of Accounting to his IMMI account in support of the visa application (and the qualification was, as a result not available to the delegate for consideration before a decision was made to refuse the visas); and

    i.Written submissions from Mr Patel, dated 18 September 2019, confirming, among other things, that he did not upload the applicant’s accounting qualification to the IMMI account.

14. In his written submissions, Mr Patel states that ‘unfortunately we missed to upload his certificate and transcript of Bachelor of Professional Accounting completed at the Holmes Institute.  This was an unintentional error from our end and not the applicant’s end’.  The Tribunal was also advised of this at the time the review application was made.

15. With reference to the online visa application generated on 22 March 2017, the Tribunal notes that Mr Patel was the applicants’ migration agent.  At the time of this decision, he continues to be the applicants’ migration agent.  It is also indicated in the online application that the applicant commenced work with Peter Jackson on 13 August 2015.  PAYG statements, as detailed above, appear to indicate that the applicant continues to work for Peter Jackson at the time of this decision.

16. In the circumstances of this case, on the basis of the applicant’s Bachelor of Accounting, and with reference to other relevant information provided, the Tribunal is satisfied that the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).

17. 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

18. 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)(da) of Schedule 2 to the Regulations; and

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

    Jennifer Cripps Watts
    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.