Singh (Migration)

[2018] AATA 2642

Singh (Migration) [2018] AATA 2642 (7 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Inderjit Singh

CASE NUMBER:  1721074

REFERENCE(S):  BCC2016/3329775

MEMBER:Lilly Mojsin

DATE:7 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 07 June 2018 at 10:47am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard business sponsor - Safety Inspector – Position removed from the list of eligible occupations – Applicant not subject of an approved nomination – Alternative nomination application before the Department – Dressmaker/Tailor - Whether the review should be adjourned to await outcome – Relevant skills assessment not undertaken – No evidence before the Tribunal that the applicant has the requisite skills and experience – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
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 made by a delegate of the Minister for Immigration on 1 September 2017 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 applicant applied for the visa on 7 October 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).

4. On 6 June 2016 the applicant’s sponsor, Eikaterissa Pty Ltd, was granted standard sponsorship approval from 6 June 2016 to 6 June 2021 for the nominated position of Safety Inspector (ANZSCO 312611).

5. On 19 April 2017 amendments were made to the relevant instrument IMMI16/059 and the position of Safety Inspector (ANZSCO 312611) was removed from the list of eligible occupations.

6. The delegate refused to grant the visa on 1 September 2017 on the basis that cl.457.223(4)(aa) was not met because the applicant was not the subject of an approved nomination in an occupation that meets the requirements of cl.457.223(4)(aa) as detailed in IMMI 16/059.

7. On 12 September 2017 the applicant applied for review of that decision to this Tribunal, attaching a copy of the Department record to his application.

8. On 19 September 2017 the Tribunal invited the applicant to comment on the validity of the application for review because the applicant was not identified in a nomination under s.140GB of the Act,

9. On 20 September 2017 the applicant’s sponsor, Eikaterissa Pty Ltd, applied for approval of nomination of the position of Dressmaker or Tailor (ANZSCO 393213). That nomination has not as yet been approved.

10. On 19 October 2017 the Tribunal, differently constituted, found that the Tribunal had jurisdiction.

11. The applicant appeared before the Tribunal on 12 April 2018 and 23 May 2018 to give evidence and present arguments.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this review is whether the applicant meets cl.457.223 at time of decision.

13. At the Tribunal hearing the Tribunal noted that the applicant may no longer meet the requirement in paragraph 457.223(4)(aa) of the Regulations, which required his nominated occupation to be specified in the relevant instrument in writing at the time the Department, and the Tribunal, made its decision. The applicant acknowledged that the nominated position of Safety Inspector was no longer specified in the relevant instrument.

14. The applicant advised the Tribunal that his nomination for position of Dressmaker or Tailor and the approval of nomination of the position of Dressmaker or Tailor (ANZSCO 393213) by his sponsor, Eikaterissa Pty Ltd, had not, as yet, been decided by the Department.

15. At the Tribunal hearing the Tribunal discussed with the applicant his qualifications for dressmaker or tailor. He said that when he was working for the sponsoring company he was doing repair and all dressmaking. Asked how he could have been a safety inspector, as he had been nominated for that position, he said he was just learning dressmaking and he had another position as a safety inspector. He finished his study and his boss said he can stay.

16. The applicant confirmed he had obtained the following qualifications:

    ·Advanced Diploma of Management

    ·Diploma of Business Administration

    ·Advanced Diploma of Network Security

    ·Diploma of Information Technology Networking

    ·Certificate IV in Information Technology Networking

    ·Punjab School Education Board – Group Humanities

17. Asked if he has had a skill assessment for a dressmaker or tailor he said he had not. He said that he stopped working as a safety inspector when his nomination was refused in 2017. He does not work at the moment.  

18. Post hearing the applicant provided his taxation returns. His taxation return for the year ended June 2014 describes his main occupation as laundry worker, for the year ended June 2015 describes his main occupation as machine operator and for the year ended June 2016 also describes his main occupation as machine operator.

19. The applicant’s sponsor, in a submission to the Tribunal, stated that the applicant has previously assisted the company with tailoring work and he learned to fit for this position. He also worked as a safety inspector and spent more time as a safety inspector. The applicant gained skills whilst in their employ in order to work for them.   

    REASONS AND FINDINGS

20. 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 review, 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.

21. Criteria to be satisfied at time of decision

    457.223
    (1) The applicant meets the requirements of subclause (2) or (4).
    …
    Standard business sponsor
    (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;

22. On 18 April 2017 the Minister for Immigration announced significant changes to the skilled occupations that can be nominated and approved for the purposes of a subclass 457 visa application.

23. The relevant instrument IMMI 16/059, which is a compilation of legislative instruments IMMI 16/059 taking into account the amendments made by IMMI 16/118 and IMMI 17/040 was registered (i.e. published) on 26 April 2017. The relevant version of IMMI 16/059 does not include the occupation of 'Safety Inspector (ANZSCO 312611).  

24. In relation to IMMI 16/059, the Tribunal notes that IMMI 17/040 was repealed on 20 April 2017. IMMI 16/059 is a compilation that takes into account legislative instruments IMMI 16/118 and IMMI 17/040. According to the Federal Register of Legislation website, the current version of IMMI 16/059 (F2017C00352) was registered on IMMI 16/059 26 April 2017.

25. The applicant acknowledged that he no longer met the requirements in paragraph 457.223(4)(aa) of the Regulations, which required his nominated occupation to be specified in the relevant instrument, in writing, at the time of decision.

26. Department records indicate that the applicant’s sponsor, Eikaterissa Pty Ltd, applied to be granted standard sponsorship approval for the nominated position of Dressmaker or Tailor [ANZSCO Code 393213].  The sponsor has nominated the applicant for the nominated position. The Tribunal notes that this application has not, as yet, been decided by the Department.

27. In deciding whether to adjourn the review and await the outcome of the decision regarding the sponsor’s standard sponsorship approval for the nominated position of Dressmaker or Tailor [ANZSCO Code 393213] and the nomination of the applicant for the position, the Tribunal has considered the applicant’s qualifications and the requirements for the nominated position of Dressmaker or Tailor [ANZSCO Code 393213][1]. The description of occupation Dressmaker or Tailor [ANZSCO Code 393213] is “makes, alters and repairs women's and men's tailored garments, formal wear, couturier clothing, and special occasion wear such as suits, dresses, coats, evening wear and bridal wear”.

    [1]

28. The temporary visa program is for employers to sponsor and employ skilled workers with the required skills or experience in particular occupations required in Australia. At the Tribunal hearing the Tribunal discussed with the applicant his qualifications for dressmaker or tailor. He said that when he was working for the sponsoring company he was doing repair and all dressmaking. Asked how he could have been a safety inspector, as he had been nominated for that position, he said he was just learning dressmaking and he had another position as a safety inspector. He finished his study and his boss said he can stay.

29. Asked if he has had a skill assessment for the position dressmaker and tailor, he said he had not. He said that he stopped working as a safety inspector when his nomination was refused in 2017. He does not work at the moment. 

30. The applicant has obtained qualifications in Management, Business Administration, Network Security and Information Technology Networking in Australia. He has completed the Punjab School Education Board certificate– Group Humanities.

31. The applicant’s taxation returns for 3 years state his main occupation as laundry worker for one year and machine operator for two years. The applicant’s sponsor, in a submission to the Tribunal, stated that the applicant has previously assisted the company with tailoring work and also worked as a safety inspector. There is no information before the Tribunal to suggest that the applicant has the experience and skills to “make, alter and repair women's and men's tailored garments, formal wear, couturier clothing, and special occasion wear such as suits, dresses, coats, evening wear and bridal wear” as is described in ANZSCO Code 393213 for Dressmaker and Tailor.

32. Therefore the Tribunal will not delay making its decision to await the outcome of the application for standard sponsorship approval, by  Eikaterissa Pty Ltd, for the nominated position of Dressmaker or Tailor [ANZSCO Code 393213] and the nomination of the applicant for the position.

33. As the Tribunal will not await the decision by the Department regarding the nomination of the position of Dressmaker/Tailor the Tribunal has proceeded to make its decision. The Tribunal finds that the applicant's nominated occupation of 'Safety Inspector (ANZSCO Code 312611) is not specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect at the time of decision, as required by paragraph 457.223(4)(aa).

34. Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of paragraph 457.223(4)(aa), subcl.457.223(4) and cl. 457.223 at the time of its decision.

35. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

36. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    Lilly Mojsin
    Member