Suzuki (Migration)

[2021] AATA 1753

Suzuki (Migration) [2021] AATA 1753 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Haruya Suzuki
Ms Youjin Kim

CASE NUMBER:  1912322

HOME AFFAIRS REFERENCE(S):          BCC2018/1282235

MEMBER:John Cipolla

DATE:11 May 2021     

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

Statement made on 28 May 2021 at 11.15am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – Marketing Specialist – necessary skills, qualifications and experience – positive skill assessment from VETASSESS – 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 made by a delegate of the Minister for Home Affairs on 13 May 2019 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 visas on 17 March 2018. At the time the 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl 457.223(4)(da) because the delegate was not satisfied that the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Marketing Specialist.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Marketing Specialist.

7. The Tribunal received a submission dated 3 March 2021 from the applicant’s representative at review addressing the requirements of cl.457.223(4)(da). That submission is replicated below.

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

   The applicant is the subject of a nomination, by Daiwa Food Corporation Pty Ltd (the sponsor), that was made on 17 March 2018 and approved on 2 August 2018. The Subclass 457 visa application was made on 17 March 2018, refused on 13 May 2019 and a review application lodged on 17 May 2019.

   The review application was applied for by the visa applicant within 12 months after the day on which the nomination was approved.

   SKILLS, QUALIFICATION AND EMPLOYMENT BACKGROUND OF THE APPLICANT

   Cl. 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 this case the nominated occupation is Marketing Specialist, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 225113.

   To address this requirement, the applicant has obtained a positive skill assessment from VETASSESS for the occupation as a Marketing Specialist on 12 February 2021.

   The employments assessed include the applicant’s employment as a Business Development Manager/Marketing Specialist, Daiwa Food Logistics Pty Ltd from 17/11/2015 to 05/01/2018; and as Business Development Manager/Marketing Specialist, Daiwa Food Corporations Pty Ltd from 30/01/2018 to 08/12/2020. We further submit that the applicant currently continues to be employed as a Business Development Manager/Marketing Specialist with Daiwa Food Corporations Pty Ltd.

   The outcome of the assessment was that the applicant is assessed to be at an appropriate skill level and closely related to the nominated occupation of Marketing Specialist as at 31 January 2018. (prior to the application date of the Subclass 457 visa application on 17 March 2018)

   We submit that the applicant has, and has demonstrated he has, the skills, qualifications and employment background necessary to perform the tasks of the nomination.

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

   On the basis of the submissions above, we request the Tribunal to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

8. The applicant has now provided evidence that indicates he possesses the requisite skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Marketing Specialist

9. 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

10. 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

    John Cipolla
    Senior Member