SOMSAK (Migration)

This matter concerned an appeal by a visa applicant against a delegate's refusal to approve an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The nominated occupation was Careers Counsellor, ANZSCO 272111. The delegate's refusal was based on the applicant's qualifications and employment background not being commensurate with the indicative skill level specified in the ANZSCO for that occupation.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.223(4)(da) of Schedule 2 to the Regulations, which mandates that the applicant possess the skills, qualifications, and employment background necessary to perform the tasks of the nominated occupation. The Tribunal was also required to consider clause 457.223(4)(e), which pertains to demonstrating necessary skills in a manner specified by the Minister if so required.

The Tribunal noted that ANZSCO specifies a Bachelor degree or higher qualification for a Careers Counsellor, but also provides that at least five years of relevant experience may substitute for a formal qualification for occupations within Sub-Major Group 27. The applicant presented two diploma qualifications and continuous work experience in Australia since December 2016. After requesting and reviewing supporting evidence, including employer references, the Tribunal found that the applicant possessed five years of relevant experience as a Careers Counsellor in Australia, which could substitute for a formal qualification. Consequently, the Tribunal concluded that the applicant satisfied the requirements of clause 457.223(4)(da).

Given these findings, the Tribunal remitted the application for the Temporary Business Entry (Class UC) visa for reconsideration by the Minister, with the direction that the applicant meets the criteria under clause 457.223(4)(da) of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the Subclass 457 visa.