Suzuki (Migration)

[2018] AATA 5897

Suzuki (Migration) [2018] AATA 5897 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rina Suzuki

CASE NUMBER:  1515117

DIBP REFERENCE(S):  BCC2015/2101086

MEMBER:Warren Stooke AM

DATE:28 November 2018

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)(a) of Schedule 2 to the Regulations

Statement made on 29 November 2018 at 3:05pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Office Manager – nomination refused – sponsor confirmed – decision substituted – nomination approved – decision under review remitted
 
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations (Cth) 1994, r 2.72, 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 Immigration 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 visa applicant applied for the visa on 22 July 2015.

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 visa on 23 October 2015 on the basis that cl.457.223(4)(a) was not met because the delegate was not satisfied that the nominee had an approved standard business sponsor..

5.    The applicant appeared before the Tribunal on 30 October 2018 and 27 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from a Director of the nominating sponsor, Mr Foo. 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

Information about the nominated occupation

8.    Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:

a.the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;

b.if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the instrument IMMI 13/065; or if the applicant is a party to a work agreement the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and

c.the location(s) at which the nominated occupation is to be carried out.

1. The ANZSCO descriptor for an Office Manager is prescribed, as follows:

   UNIT GROUP 5121 OFFICE MANAGERS

   
   OFFICE MANAGERS organise and control the functions and resources of offices such as administrative systems and office personnel.

   Indicative Skill Level:
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

   In Australia:

   AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

   
   In New Zealand:

   NZ Register Diploma (ANZSCO Skill Level 2)

   
   At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

   Tasks Include:

   a.contributing to the planning and review of office services, and setting priorities and office service standards

   b.allocating human resources, space and equipment

   c.assigning work to and monitoring work performance of staff

   d.managing records and accounts of the office

   e.liaising with Professionals to coordinate office business and to facilitate resolution of problems

   f.ensuring office equipment and supplies are maintained

   g.ensuring compliance with occupational health and safety regulations

   h.ensuring work complies with relevant government legislation, policies and procedures

   i.coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision

   
   Occupation:  512111 Office Manager
   
   512111 OFFICE MANAGER
   
   Organises and controls the functions and resources of an office such as administrative systems and office personnel.

   Skill Level: 2

2. The applicant and nominating sponsor gave evidence that the responsibilities of the Business Process Manager (Office Manager)  at Shichida Australia, includes the following responsibilities:

   ·In conjunction with the Administration Manager to design, streamline and document administrative processes and policies used across all 5 centres.

   ·To work closely with outsourced IT consultants to incorporate administrative and marketing processes to the Shichida systems, including:

   o    Design and write up of specifications for IT

   o    Test of implemented systems

   ·To Design and produce reports on enrolment, marketing campaign effectiveness and loyalty for management purposes.

   ·To Work closely with the Management Team and Administration Manager to design, define and implement a paperless enrolment process involving the Shichida customer relationship management system, enrolment and scheduling application and the payment gateway, including:

   o    Online enquiry

   o    Class bookings

   o    Executing Agreement to terms and conditions

   o    Facilitating Payment details

   ·To Improve and automate re-enrolment processes, including:

   o    Minimising payment failure

   o    Reporting on accounts receivable

   o    Synchronising payment with the re-enrolment status

   ·To execute Training of all staff members on processes.

   ·To Support management in the preparation of all reporting and planning needs with the company’s head office in Japan.

   ·To Support Shichida Australia in fulfilling its role played in assisting SEI in product and marketing efforts.

3. The Tribunal was provided with evidence that the nominee is a fluent Japanese speaker and undertakes a key management role in communications with the parent company in Japan, with whom the licence for the educational program is held. As such, the Tribunal is satisfied that the role of the nominated position is critical to the efficient management of the business office and the maintenance of the obligations arising from the contractual relationship, with which the nominated position has a critical role.

4. On the basis of the foregoing the Tribunal is satisfied that the functions performed by the nominated position, as a Business Manager, are consistent with the expectations contemplated in ANZSCO 512111 – Office Manager.

Requirement for an approved nomination

1. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

2. The Tribunal in Case Matter:1602167 (which pertains to the nomination of the position by the applicant herein) has set aside the decision under review and substituted a decision approving the nomination. Accordingly, the Tribunal is satisfied that the applicant has an approved standard business sponsor for the position nominated.

3. For these reasons the requirements of cl.457.223(4)(a) are met.

4. 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

1. 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)(a) of Schedule 2 to the Regulations.

Warren Stooke AM
Member

ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship

…

1. 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.

   …

2. 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.

   …

3. 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.