Vermaak (Migration)

This matter concerned an application for review of a decision to refuse a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant sought to be employed as a Supply and Distribution Manager. The core of the dispute revolved around whether the applicant possessed the necessary skills, qualifications, and employment background to perform the tasks associated with this nominated occupation, as required by clause 457.223(4)(da) of the relevant regulations.

The court was required to determine whether the applicant met the criteria stipulated in clause 457.223(4)(da), which mandates that an applicant must have the skills, qualifications, and employment background considered necessary by the Minister to perform the nominated occupation. This involved assessing the applicant's experience against the requirements outlined in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for a Supply and Distribution Manager, particularly concerning the alternative pathway of relevant experience substituting for formal tertiary qualifications.

The court considered the ANZSCO description for the occupation of Supply and Distribution Manager, which falls under Sub-Major Group 13, Specialist Managers. While ANZSCO generally indicates a skill level commensurate with a bachelor’s degree or higher, it also provides that at least five years of relevant experience may substitute for formal qualifications. The applicant did not hold a bachelor's degree, necessitating an evaluation of her work experience and on-the-job training to ascertain if it adequately substituted for the formal qualification. The court noted that the delegate had also considered ANZSCO in their assessment.

Given that the delegate's decision to refuse the primary applicant's visa was found to be flawed, the court set aside the decisions in relation to all applicants, who were members of the same family unit. The visa applications were remitted to the Department for further consideration, with a direction that the first applicant met the criteria under clause 457.223(4)(da).