SOMSAK (Migration)

[2021] AATA 5548

SOMSAK (Migration) [2021] AATA 5548 (13 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chompunoot SOMSAK

CASE NUMBER:  1827613

HOME AFFAIRS REFERENCE(S):          BCC2017/2813643

MEMBER:Mary Sheargold

DATE:13 December 2021

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 13 December 2021 at 7:49am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – Careers Counsellor – necessary skills, qualifications, and experience – 5 years of relevant experience may substitute for a formal qualification – 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 Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 7 August 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 (Cth) (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 3 September 2018 on the basis that cl 457.223(4)(da) was not met because she did not demonstrate that she had the necessary skills, qualifications and employment background to perform the tasks of the nominated occupation of Careers Counsellor, ANZSCO 272111.

5. The applicant appeared before the Tribunal (differently constituted) by MS Teams video link on 4 August 2021 to give evidence and present arguments.  

6. The applicant was represented in relation to the review by her registered migration agent, Mr Adam Khaze. Mr Khaze attended the Tribunal hearing via MS Teams.

7. The Tribunal member who heard the application subsequently left their position prior to making a decision, and so this application was reconstituted to me.  Upon review of the application, I surmised that a favourable outcome for the applicant could to be achieved subject to gathering information pursuant to s.359(2) of the Act.  Therefore, on 3 December 2021, the applicant and Mr Khaze participated in a brief interview (pursuant to s.359(2) of the Act) where the applicant was able to satisfy me that, subject to written confirmation of certain facts, this application was suitable for remittal to the Department for reconsideration.

8. The Tribunal notes that at the hearing conducted in August 2021, the Tribunal elected not to engage in an inquiry as to whether the applicant could meet the requirements of the criterion in dispute, being cl.457.233(4)(da) of Schedule 2 to the Regulations. Rather, the Tribunal in that hearing elected to discuss with the applicant a potential issue regarding whether there was an approved nomination to support her application. In short, the applicant admitted that her approved sponsor ceased to operate in May 2020, and as such, the Tribunal highlighted its concern that the applicant may no longer have an approved nomination. Noting that applications for nomination approval for Subclass 457 visas closed in March 2018, the Tribunal is cognisant that a new nomination approval could not be obtained to support this Subclass 457 visa application.

9. However, at the hearing and in his post-hearing submissions, Mr Khaze argued that a number of options were open to the Minister, including joining the applicant’s partner to this application and relying on his skills, qualifications and experience in his nominated occupation to meet the primary criteria for approval and relegating the applicant to a secondary visa applicant, or granting the applicant a dependant visa under Subclass 457 on the basis that her partner, the holder of a Subclass 482 visa, be the primary visa holder linked to her dependant visa.  The Tribunal notes that the applicant has been nominated for a Subclass 482 visa by York Business Institute Pty Ltd by application for approval dated 17 September 2021. 

10. In the interests of meeting the Tribunal’s objectives of making decisions in a quick, economical, just, and informal manner, the Tribunal has exercised its discretion to remit the application on the basis that the applicant can now demonstrate she meets the requirements of the criterion in dispute, thus providing the Minister the opportunity to exercise his discretion to determine the most appropriate resolution for the visa applicant moving forward.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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

13. 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 Careers Counsellor, ANZSCO 272111.

14. The delegate refused to approve the application because the applicant’s qualifications and employment background were not commensurate with the indicative skill level specified in the ANZSCO for the nominated occupation of Careers Counsellor, ANZSCO 272111.

15. The Tribunal notes that the ANZSCO specifies that the indicative skill level of the occupation Careers Counsellor 272111 is commensurate with a Bachelor degree or higher qualification. ANZSCO at Sub-Major Group 27 stipulates that at least 5 years of relevant experience may substitute for a formal qualification for occupations in this sub-major group.

16. In her interview with the Tribunal, the applicant explained that she has 2 diploma qualifications relevant to the nominated occupation, as well as continuous work experience in Australia dating back to December 2016.  The Tribunal asked the applicant to provide copies of references from her employers to confirm that she has completed the tasks expected of a Careers Counsellor as anticipated in the ANZSCO over the course of her 5 years of relevant employment experience.

17. On 10 December 2021, the applicant provided the Tribunal with supporting evidence requested during the interview.  The Tribunal has considered the applicant’s statutory declaration, employment reference letters, and the representative’s submissions, and finds that the applicant has 5 years of relevant experience working as a Careers Counsellor in Australia, and finds that this experience can substitute for a formal qualification as set out in the ANZSCO.  Therefore, the applicant satisfies the requirements of cl 457.223(4)(da).

18. 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

19. 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.

    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.