TANGSAMUT (Migration)

[2019] AATA 4026

TANGSAMUT (Migration) [2019] AATA 4026 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Phatcharee TANGSAMUT
Mr Narong TANGSAMUT

CASE NUMBER:  1803295

DIBP REFERENCE(S):  BCC2016/4406416

MEMBER:Jennifer Cripps Watts

DATE:6 September 2019

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; and

·cl.457.223(4)(e) of Schedule 2 to the Regulations

Statement made on 06 September 2019 at 12:44pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Cook – nomination not ceased – review application made within 12 months – skills assessment – changes to Subclass 457 visa program – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth), sub-cl 6704(15)
Migration Regulations 1994 (Cth), r 2.75, Schedule 2, cls 457.223, 457.321

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 (the delegate) 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 visa on 30 December 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). 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 31 January 2018 on the basis that cl.457.223(4) was not met because the Minister required, and requested in writing, that the primary visa applicant (the visa applicant) provide a positive skills assessment and one was not provided.

5. The Tribunal was able to make a favourable decision on the review on the material before it and there was no need for a hearing:  s.360(2)(a).

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 visa applicant meets the requirements of cl.457.223(4)(da) and cl.457.223(4)(e) of Schedule 2 to the Regulations.

   Skills, qualification and employment background of the applicant

8. Clause 457.223(4)(da) requires the visa 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 visa 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 Cook, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 351411.

   Background

9. On 30 December 2016, the applicant applied for a Subclass 457 visa on the basis of a nomination by Leh Kuong Wong atf The Wong Family Trust (the sponsor) who, until 18 February 2022, is an approved standard business sponsor.  The nomination relating to the applicant was approved on 18 February 2017.

10. On 18 February 2017, when the visa application was being assessed, the Department requested that the applicant provide evidence of the commencement or successful completion of a Trades Recognition Australia(TRA) skills assessment.  The applicant responded that she had commenced the assessment process with TRA on 10 May 2017 and provided a receipt confirming the TRA application had been lodged and paid for.

11. On 24 October 2017, the Department wrote to the applicant and requested that she provide evidence of a TRA skills assessment within 28 days and informed her that if a reply was not received the Department may make a decision without again seeking to obtain the information.

12. No response was received and, on 31 January 2018, the delegate notified the applicants that the visas had been refused because the applicant did not meet cl.457.223(4) and the secondary applicant did not meet the secondary criteria, cl.457.321.

    Changes to the Subclass 457 visa program and Saving Provisions

13. On 18 March 2018, the Department of Home Affairs introduced a new Temporary Skill Shortage (TSS) visa (Subclass 482) to replace the Subclass 457 visa.  From 18 March 2018 an applicant for a Subclass 457 visa could not request a skills assessment from Trades Recognition Australia’s (TRA) Skills Assessment Program.  This change applies to the applicant in the current matter on review.  It is the Tribunal’s view, in the circumstances described below, that the nomination has not ceased because the transitional arrangements in the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 state that the purpose of subclause 6704(15) is to ensure that a nomination linked to a Subclass 457 visa application will not cease while the Tribunal carries out the review of a decision to refuse the visa.

14. The cessation of the approval for a Subclass 457 visa is provided for in r.2.75 of the Regulations.  Under r.2.75, approval of a nomination ceases in a number of different circumstances.  Relevant to this matter, the applicant’s visa was refused and the nomination ceased 12 months after the day the nomination was approved, on 31 January 2018.

15. However, r. 2.75(2)(b), which provides for cessation 12 months after nomination approval, does not apply to a nomination made before 18 March 2018 if the person identified in the nomination applied for a 457 visa before 18 March 2018 and they applied to the Tribunal for a review of a decision to refuse to grant that visa within 12 months after the day on which the nomination was approved.  Relevantly, in this matter:

    a.The nomination application was made on 24 December 2016 and was approved on 18 February 2017;

    b.The visa applicant applied for the related 457 visa on 30 December 2016; and

    c.After the visas were refused on 31 January 2018, an application to the Tribunal for review of the decision to refuse the Subclass 457 visas relating to the sponsor’s nomination was made on 7 February 2018.

16. On the evidence, an application for review of the decision to refuse the visas that are the subject of this review was made within the relevant 12 month period as the nomination had not ceased.

17. The nominated occupation, Cook, is described in the ANZSCO Unit Group 3514 Cooks as someone who prepares, seasons and cooks food in dining and catering establishments.  The occupation has an indicative skill level commensurate with an AQF Certificate III including at least two years of on-the-job training, or an AQF Certificate IV skill level 3.  It is noted that at least three years of relevant experience may substitute for these formal qualifications. Tasks for a Cook, as described in the ANZSCO, include:

    a.examining foodstuffs to ensure quality

    b.regulating temperatures of ovens, grills and other cooking equipment

    c.preparing and cooking food

    d.seasoning food during cooking

    e.portioning food, placing it on plates, and adding gravies, sauces and garnishes

    f.storing food in temperature controlled facilities

    g.preparing food to meet special dietary requirements

    h.may plan menus and estimate food requirements

    i.may train other kitchen staff and apprentices

18. The applicant has provided the Tribunal with Certificate IV in Commercial Cookery, academic transcript and Letter of Completion dated 5 March 2016, Management Institute of Australia (MIA), indicating that Phatcharee Tangasamut completed all requirements for the qualification. 

19. The subjects that the visa applicant has successfully completed, referring to the MIA academic transcript, includes subjects consistent with the duties described in the ANZSCO.  The Tribunal is satisfied that the applicant’s AQF qualification is highly relevant to the nominated occupation of Cook and, on the evidence provided, that the applicant has been working since 2011 to date as a Cook, performing a substantial proportion of the duties described in the ANZSCO, at I Rich Thai in Drummoyne, Classic Thai in Mittagong, Classic Thai Cuisine in Green Valley, Le Siam Thai Restaurant in Blackheath and Thai Silk Restaurant in Blackheath.

20. For these reasons the visa applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).

21. 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

22. 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; and

    ·cl.457.223(4)(e) of Schedule 2 to the Regulations

23. Jennifer Cripps Watts

    
    

    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.