Yap (Migration) [2017] AATA 1575 (23 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Zheng Zhuang Yap
CASE NUMBER: 1601428
DIBP REFERENCE(S): BCC2015/3207647
MEMBER:Danica Buljan
DATE:23 August 2017
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 applicant meets the following criteria for a Subclass 457 visa:
• Paragraph 457.223(4)(da); and
• Paragraph 457.223(4)(e) of Schedule 2 to the Regulations.
Statement made on 23 August 2017 at 5:01pm
CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills assessment – Skills, experience and qualifications necessary for the nominated occupation – Cafe or Restaurant Manager – Sufficient evidence provided that applicant has appropriate skills and employment background – Independent skills assessment not requiredLEGISLATION
Migration Act 1958, ss 65, 359, 360Migration Regulations 1994, Schedule 2, cl 457.223
CASES
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Visnumolakala v Minister for Immigration [2006] FMCA 1209
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Parekh v Minister for Immigration and Citizenship [2007] FMCA 633
Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 843
Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 January 2016 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under section 65 of the Migration Act 1958 (‘the Act’).
The applicant applied for the visa on 2 November 2015. 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’).
One of the criteria to be satisfied at the time of decision is clause 457.223, which requires the applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in subclause 457.223(4), which is set out in the attachment to this decision. In the present case, specific claims have been made against subclause 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 clause 457.223.
The applicant lodged his application for a subclass 457 visa on the basis that he was to be employed as a 'Cafe or Restaurant Manager' (ANZSCO[1] Code 141111).
[1]ANZSCO: Australian and New Zealand Standard Classification of Occupations, 2013
The delegate refused to grant the visa…
Details
- AGLC
- Yap (Migration) [2017] AATA 1575
- Case
- [2017] AATA 1575
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457, where the primary dispute revolved around whether the applicant met the requirements of paragraph 457.223(4)(da) of the Regulations, concerning the applicant's skills, qualifications, and employment background for the nominated occupation. The Tribunal also considered paragraph 457.223(4)(e) to be relevant.
The legal issues before the Tribunal were whether the applicant possessed the necessary skills, qualifications, and employment background for the nominated occupation, as required by paragraph 457.223(4)(da), and if the applicant had demonstrated these skills in the manner specified by the Minister, as per paragraph 457.223(4)(e). The Tribunal was required to assess the applicant's evidence against the criteria outlined in the Procedures Advice Manual 3 (PAM3) and the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
The Tribunal reasoned that when assessing paragraph 457.223(4)(da), it should refer to ANZSCO for the principal source of information on skill requirements, considering the 'Indicative Skill Level' rather than the general ANZSCO Skill Level. The Tribunal noted that an applicant may still meet the criterion if they possess skills and experience covering the bulk or core elements of the occupation, even if they do not cover every prescribed task, and that specialisation in a range of tasks is acceptable for this program. The Tribunal also considered the provisions within PAM3 regarding when a mandatory skills assessment is not required and how decision-makers should proceed based on the information provided.
Ultimately, the Tribunal concluded that the application should be remitted for reconsideration. The Tribunal directed that the applicant meets the criteria under paragraph 457.223(4)(da) and paragraph 457.223(4)(e) of Schedule 2 to the Regulations, and that the Minister should consider the remaining criteria.
The legal issues before the Tribunal were whether the applicant possessed the necessary skills, qualifications, and employment background for the nominated occupation, as required by paragraph 457.223(4)(da), and if the applicant had demonstrated these skills in the manner specified by the Minister, as per paragraph 457.223(4)(e). The Tribunal was required to assess the applicant's evidence against the criteria outlined in the Procedures Advice Manual 3 (PAM3) and the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
The Tribunal reasoned that when assessing paragraph 457.223(4)(da), it should refer to ANZSCO for the principal source of information on skill requirements, considering the 'Indicative Skill Level' rather than the general ANZSCO Skill Level. The Tribunal noted that an applicant may still meet the criterion if they possess skills and experience covering the bulk or core elements of the occupation, even if they do not cover every prescribed task, and that specialisation in a range of tasks is acceptable for this program. The Tribunal also considered the provisions within PAM3 regarding when a mandatory skills assessment is not required and how decision-makers should proceed based on the information provided.
Ultimately, the Tribunal concluded that the application should be remitted for reconsideration. The Tribunal directed that the applicant meets the criteria under paragraph 457.223(4)(da) and paragraph 457.223(4)(e) of Schedule 2 to the Regulations, and that the Minister should consider the remaining criteria.
Orders
Orders of the court
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Background
Background to the litigation
The issue in this case is whether the applicant meets the requirements of paragraph 457.223(4)(da) of the Regulations. The Tribunal also considers paragraph 457.223(4)(e) to be relevant to the issues before it. These provisions state:(4) The applicant meets the requirements of this subclause if:…(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…The ‘Skills, Qualifications and Employment Background’ Requirement - Paragraph 457.223(4)(da): In relation to the requirements of paragraph 457.223(4)(da), the departmental policy guidelines in PAM3[17] provide:4.7.6.2Assessment against the nominated occupation in ANZSCO[17]PAM3: ‘Procedures Advice Manual 3’When assessing this criterion, the Australian and New Zealand Standard Classification of Occupations (ANZSCO) should be referred to as the principal source of information on the skill requirements for the nominated occupation – that is, the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation.Officers should consider the ‘Indicative Skill Level’ specified for the nominated occupation in the ANZSCO rather than the general ANZSCO Skill Level. They should also make sure that the qualifications and experience of the visa applicant are relevant to the nominated occupation, for example:· if ANZSCO suggests that an Architect should hold a bachelor degree or higher qualification and a visa applicant, who is nominated as an architect, provides evidence of holding a Bachelor of Law degree, it would be inappropriate to grant the visa without obtaining further evidence of relevant qualifications;· if ANZSCO suggests that a Marketing Specialist should also hold a bachelor degree or higher qualification and a visa applicant, who is nominated as a marketing specialist, provides evidence of holding a bachelor degree in advertising, this degree would be relevant and the decision maker could be satisfied that the applicant had the requisite skills.If a visa applicant does not possess a range of skills and experience that covers the breadth of tasks prescribed under the nominated occupation, they may still meet this criterion if they have skills and experience to perform the bulk or core elements of the occupation. For example, if a visa applicant were to nominate an occupation listed under a “not elsewhere classified” heading, it would be unreasonable to consider that the visa applicant possesses skills and experience in every prescribed task.Officers should also consider that some highly skilled visa applicants will specialise in a small range of tasks, rather than in the full range of duties. As this program is designed to enable employers to meet skill shortages, this degree of specialisation is acceptable for visa applicants under the programme.4.7.6.3 Providing evidence of skills, qualifications and employment background…Where a mandatory skills assessment is not required under policy, decision makers need to decide whether:· they are satisfied that paragraph 457.223(4)(da) is met based on information provided with the visa application – for example, the visa applicant is a lawyer and has provided transcripts from their law degree as well as evidence of completing required practical professional training, a comprehensive CV and work references outlining previous work experience; or· additional information needs to be requested – for example, ANZSCO requires the visa applicant to have education qualifications plus work experience, however, the CV provided does not clearly outline what experience the visa applicant has, and work references would assist the delegate to assess whether paragraph 457.223(4)(da) is met; or· a discretionary skills assessment should be requested.…[Tribunal emphasis]
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements of paragraph 457.223(4)(da) of the Regulations. The Tribunal also considers paragraph 457.223(4)(e) to be relevant to the issues before it. These provisions state:(4) The applicant meets the requirements of this subclause if:…(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…The ‘Skills, Qualifications and Employment Background’ Requirement - Paragraph 457.223(4)(da): In relation to the requirements of paragraph 457.223(4)(da), the departmental policy guidelines in PAM3[17] provide:4.7.6.2Assessment against the nominated occupation in ANZSCO[17]PAM3: ‘Procedures Advice Manual 3’When assessing this criterion, the Australian and New Zealand Standard Classification of Occupations (ANZSCO) should be referred to as the principal source of information on the skill requirements for the nominated occupation – that is, the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation.Officers should consider the ‘Indicative Skill Level’ specified for the nominated occupation in the ANZSCO rather than the general ANZSCO Skill Level. They should also make sure that the qualifications and experience of the visa applicant are relevant to the nominated occupation, for example:· if ANZSCO suggests that an Architect should hold a bachelor degree or higher qualification and a visa applicant, who is nominated as an architect, provides evidence of holding a Bachelor of Law degree, it would be inappropriate to grant the visa without obtaining further evidence of relevant qualifications;· if ANZSCO suggests that a Marketing Specialist should also hold a bachelor degree or higher qualification and a visa applicant, who is nominated as a marketing specialist, provides evidence of holding a bachelor degree in advertising, this degree would be relevant and the decision maker could be satisfied that the applicant had the requisite skills.If a visa applicant does not possess a range of skills and experience that covers the breadth of tasks prescribed under the nominated occupation, they may still meet this criterion if they have skills and experience to perform the bulk or core elements of the occupation. For example, if a visa applicant were to nominate an occupation listed under a “not elsewhere classified” heading, it would be unreasonable to consider that the visa applicant possesses skills and experience in every prescribed task.Officers should also consider that some highly skilled visa applicants will specialise in a small range of tasks, rather than in the full range of duties. As this program is designed to enable employers to meet skill shortages, this degree of specialisation is acceptable for visa applicants under the programme.4.7.6.3 Providing evidence of skills, qualifications and employment background…Where a mandatory skills assessment is not required under policy, decision makers need to decide whether:· they are satisfied that paragraph 457.223(4)(da) is met based on information provided with the visa application – for example, the visa applicant is a lawyer and has provided transcripts from their law degree as well as evidence of completing required practical professional training, a comprehensive CV and work references outlining previous work experience; or· additional information needs to be requested – for example, ANZSCO requires the visa applicant to have education qualifications plus work experience, however, the CV provided does not clearly outline what experience the visa applicant has, and work references would assist the delegate to assess whether paragraph 457.223(4)(da) is met; or· a discretionary skills assessment should be requested.…[Tribunal emphasis]
Decision
Reasons for decision
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.DECISION The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:·Paragraph 457.223(4)(da); and·Paragraph 457.223(4)(e) of Schedule 2 to the Regulations.Danica BuljanMemberATTACHMENT - 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.
Ratio Decidendi
Legal Principle Established
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