Varveropoulou (Migration)

Varveropoulou (Migration) [2019] AATA 4838 (8 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Evangelia Varveropoulou
Mr Nikolaos Karagiannis
Miss Eleni Karagianni
Master Sylianos Karagiannis
CASE NUMBER:  1710628
DIBP REFERENCE(S):  BCC2016/3489464
MEMBER:Jennifer Cripps Watts
DATE:8 November 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 08 November 2019 at 11:40am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – standard business sponsor stream – skills, qualifications and employment background to perform nominated occupation of photographer – business experience, creative talent and personal commitment in place of formal qualifications – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(da), 457.223(4)(e)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 20 October 2016.
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.
The delegate refused to grant the visas on 3 May 2017 on the basis that the delegate was not satisfied that the applicant met cl.457.223(4)(da) which required that she ‘has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation’.
The applicant appeared before the Tribunal on 8 October 2019, by phone as she is currently offshore, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).
Skills, qualification and employment background of the applicant
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 Photographer, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 211311, Unit Group 2113.
It is indicated in the ANZSCO that this is a Skill Level 1 occupation and that most occupations in the 2113 Unit Group have a level of skill commensurate with a bachelor degree or higher qualification, or that at least five years of relevant experience may substitute for the formal qualification.
The description in the ANZSCO for a Photographer (211311) is as follows:
‘Operates a still camera to take photographs. This occupation requires high levels of creative talent or personal commitment and interest as well as, or in place of, formal qualifications and experience.’
The Tribunal has had regard to information provided by the applicant when she applied for the visa in 2016 and to additional information that has been provided since then, up to the time of this decision. The applicant was considered to be very credible. She gave spontaneous and confident answers in a cogent manner when she participated in the Tribunal hearing.
Applicant’s background
The applicant is a citizen of Greece. The second-named applicant is her husband and the third and fourth-named applicants are their children, who are nine years of age. They are also Greek citizens.
The nomination occupation is that of Photographer. The applicant says, and the Tribunal accepts, that she commenced tertiary training with Leica (Camera Company), from 1989 to 1991, which included mainly attending seminars exploring the history of photography and photography for interiors. She has worked as a photographer since then.
A cursory internet search by the Tribunal found that Leica is a German company founded in 1914 that, among other things, manufactures premium cameras and lenses. They have an academy which started in the 1930s that focuses on training photographers and they run seminars and workshops internationally including for creative image design, portrait, street and studio photography. The applicant departed Australia in March 2018 and is currently living there while waiting for a decision on the review of her visa refusal.
The applicant has had her own business in Greece for seven years from 2006 to 2013, Photo Ocean Studio, and that she did commercial work such as family portraits, weddings, christenings, school photographs and advertising photography. The applicant has provided the Tribunal with a Certificate of Business Commencement indicating that she commenced trading on 7 September 2007 in the municipality of Voula in Greece and that the business activities included photographic services, photographic and precision instruments and developing of photographs. While the business also sold copy machine items, the Tribunal is satisfied that her predominant function was as a photographer and that the sales of related equipment were peripheral to her main work as a photographer. In any event, the sale of photographic and related equipment demonstrates to the Tribunal the applicant’s interest in photograph more generally, which is given positive weight. The applicant has provided invoices for photography work she did for clients when she was running her business in Greece.
When the applicant came to Australia in 2014, she continued to take photographs informally, for friends and at a Melbourne Greek school when they held events.
In 2016, she was offered a job in occupation of photographer with Mediaview, which will include her doing advertising photography.
In addition to being satisfied that the applicant has worked as a Photographer in the manner described in the ANZSCO, from 2006 to 2013, the Tribunal is also satisfied that the applicant has demonstrated, since 1989, that she has a personal commitment to and interest in photography.
The applicant, who uses the name ‘Kelly’ Varveropoulou, was a featured artist in the 2016 Antipodean Palette at the Steps Gallery in Melbourne, on the basis of her photography. The event is in its sixth year and showcases the work of Greek Australian Artists. In 2016, the applicant was one of 11 featured artists including Sophia Xeros-Constantinides, Nicolas Katris and Nikos Siouzios.
The applicant’s sponsor, Mediaview Pty Ltd, had a nomination approved for the applicant on 19 January 2017 and a second nomination approved on 20 November 2018. Department records indicate they are a Standard Business Sponsor, from 13 October 2016 for five years.
The Tribunal has accepted that the applicant commenced study in photography with Leica in 1989 and that from 2006 to 2013 she ran her own photography and photographic equipment business in Greece. The applicant has a high profile on social media that is regularly and frequently updated by her uploading her photographic work. Examples of her work have been provided to the Tribunal. The Tribunal accepts that the applicant has had a personal interest in photography since the 1980s. In addition, having regard to the applicant’s photographs that she has provided, the Tribunal is satisfied that the applicant has demonstrated that she has creative talent in the field of photography.
While the applicant’s training with Leica that commenced in 1989 did not provide her with a formal bachelor level qualification in photography, or any other formal qualifications, the Tribunal is satisfied that this was a platform from which she launched her photography career, demonstrating her interest in photography since 1989. The Tribunal is satisfied that the applicant has provided sufficient evidence that she has worked as a photographer in a manner consistent with the description in the ANZSCO for more than five years.
In addition, the Tribunal has considered the description for Photographer in the ANZSCO that says creative talent or personal commitment and interest should be demonstrated and is of the view that this is a highly subjective exercise for the Tribunal to undertake in finding whether the applicant has demonstrated these things. It is noted that in the ANZSCO that creative talent or personal commitment and interest are required ‘as well as, or in place of, formal qualifications and experience’ (emphasis added). This seems to suggest that an applicant nominating in the occupation of Photographer may be able to demonstrate that they possess the necessary skills, qualifications and employment background on creative talent or personal commitment and interest alone (referring to the words above, ‘or in place of’).
Having considered all relevant evidence, including documentary evidence and the oral evidence of the applicant at the hearing, the Tribunal is satisfied that the applicant possesses and has demonstrated that she has the necessary skills, qualifications and (or) employment background necessary to perform the tasks of the nominated occupation. And, in addition, that she has demonstrated the requirement that she has creative talent and personal commitment and interest for the occupation of Photographer (ANZSCO 211311) as it is described in the ANZSCO for Unit Group 2113.
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).
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
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
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.

[2019] AATA 4838

8 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction