Yesildag (Migration) - [2020] AATA 5854

Yesildag (Migration) [2020] AATA 5854 (15 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Nurhan Yesildag
Ms Dize Ada Yesildag
CASE NUMBER:  1802166
DIBP REFERENCE(S):  BCC20171020045
MEMBER:Karen Synon
DATE:15 December 2020
PLACE OF DECISION:  Melbourne
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.

Statement made on 15 December 2020 at 1:51pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – occupation of Early Childhood (Pre-primary School) Teacher – skills, qualifications and employment background to perform the nominated occupation – applicant’s experience and passion for her role – applicant helps induct and train new staff – professional registration for the role – decision under review remitted
LEGISLATION
Education and Care Services National Regulations, ss 133, 242
Education and Training Reform Act 2006 (VIC)
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 457.223; r 2.72
CASES
Joshi v MIMIA [2005] FMCA 1116
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 15 March 2017.
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 16 January 2018 on the basis that cl.457.223(4)(da) was not met because the first named applicant (‘the applicant’) had not demonstrated she had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
The applicants appeared before the Tribunal on 30 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Naomi Salisbury, the applicant’s employer.
The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yesildag (Migration)

Details

AGLC: Yesildag (Migration) [2020] AATA 5854
Case: [2020] AATA 5854
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms. Yesildag, against a decision by the Migration Review Tribunal. The central dispute revolved around whether Ms. Yesildag met the requirements of subclause 457.223(4)(da) of the Migration Regulations, which mandates that a visa applicant possess the necessary skills, qualifications, and employment background to perform the tasks of their nominated occupation. In this instance, the nominated occupation was ‘Early Childhood (Pre-primary School) Teacher’.

The Tribunal was required to determine if Ms. Yesildag’s existing skills, qualifications, and employment history were sufficient to satisfy the criteria for the nominated occupation, particularly in light of the apparent requirement for registration with the Victorian Institute of Teaching (VIT) for such a role. The applicant had completed a Certificate III and Diploma in early childhood education and care and had been employed for over five years in the field. She had not sought registration with the VIT.

The Tribunal reasoned that while the applicant possessed relevant qualifications and extensive practical experience, the issue of registration with the VIT was a significant factor. The Tribunal noted that the applicant had not attempted to register and that registration was a relatively new requirement for the occupation. Despite the applicant's passion for her work and her employer's strong endorsement, including their history of successfully sponsoring other individuals for the same occupation, the Tribunal concluded that the matter required further consideration.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a specific direction that the first named applicant, Ms. Yesildag, was found to meet the criteria under cl.457.223(4)(da) of Schedule 2 to the Regulations. This indicated that while the registration issue was a point of contention, the Tribunal found sufficient grounds to allow the application to proceed for further assessment of other visa criteria.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).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 this case the nominated occupation is ‘Early Childhood (Pre-primary School) Teacher’. Before taking evidence from the applicant the Tribunal explained issue in this case is that the occupation which she nominated which is an Early Childhood (Pre-primary School) Teacher, appears to require registration in Victoria. The applicant gave evidence that she completed a Certificate III and Diploma in early childhood education and care and is passionate and obsessed to learn new things every day; her job is everything to her. She has projects and goals and improves herself every day. Her work is enjoyable, and the children make her day. She has now been employed at Minnows for over five years, since she finished her Diploma. She has not tried to register with VIT as Early Childhood (Pre-primary School) Teacher. She did not peruse her career in the field in which she completed her bachelor’s degree, tourism, because with her husband’s job as a diplomat, they were travelling around the world and she could not continue this occupation. The applicant said she has always loved children and has worked as a voluntary teacher aid at her children’s schools. She loves her job and is a hard worker and she not only teaches the children but learns from them every day. She has set up her life in Australia for the past seven years and her son has permanent residency here. Every day, going to her job, is the joy of her life. The applicant’s employer, Naomi Salisbury, confirmed that the applicant has worked for her for over five years. She started as a casual and became full time from October 2016. She owns and operates three centres (and will soon open a fourth). Her brother built the centres. Ms Salisbury has been in the childcare sector since 1988, first as an untrained early childhood educator. Since running her own centres, she has had a lot of trouble employing appropriate people. She explained that she has a fairly extensive process for employing staff and employs people based on three things: their experience, including their life experience; her intuition; and where they live in proximity to where they will work; their community. She explained that this is very important because her centres are about community and relationship with families. The applicant scored very highly across all criteria. And, when she came to them about sponsorship, because they were already sponsoring other people, she readily agreed. They have sponsored six other people on 457s for the same occupation; all were approved at the primary stage and they have never had to apply for review. At the time, not all of them were registered as teachers; registration is a relatively new thing.

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 the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).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 this case the nominated occupation is ‘Early Childhood (Pre-primary School) Teacher’. Before taking evidence from the applicant the Tribunal explained issue in this case is that the occupation which she nominated which is an Early Childhood (Pre-primary School) Teacher, appears to require registration in Victoria. The applicant gave evidence that she completed a Certificate III and Diploma in early childhood education and care and is passionate and obsessed to learn new things every day; her job is everything to her. She has projects and goals and improves herself every day. Her work is enjoyable, and the children make her day. She has now been employed at Minnows for over five years, since she finished her Diploma. She has not tried to register with VIT as Early Childhood (Pre-primary School) Teacher. She did not peruse her career in the field in which she completed her bachelor’s degree, tourism, because with her husband’s job as a diplomat, they were travelling around the world and she could not continue this occupation. The applicant said she has always loved children and has worked as a voluntary teacher aid at her children’s schools. She loves her job and is a hard worker and she not only teaches the children but learns from them every day. She has set up her life in Australia for the past seven years and her son has permanent residency here. Every day, going to her job, is the joy of her life. The applicant’s employer, Naomi Salisbury, confirmed that the applicant has worked for her for over five years. She started as a casual and became full time from October 2016. She owns and operates three centres (and will soon open a fourth). Her brother built the centres. Ms Salisbury has been in the childcare sector since 1988, first as an untrained early childhood educator. Since running her own centres, she has had a lot of trouble employing appropriate people. She explained that she has a fairly extensive process for employing staff and employs people based on three things: their experience, including their life experience; her intuition; and where they live in proximity to where they will work; their community. She explained that this is very important because her centres are about community and relationship with families. The applicant scored very highly across all criteria. And, when she came to them about sponsorship, because they were already sponsoring other people, she readily agreed. They have sponsored six other people on 457s for the same occupation; all were approved at the primary stage and they have never had to apply for review. At the time, not all of them were registered as teachers; registration is a relatively new thing.

Decision

Reasons for decision

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.Karen SynonMemberATTACHMENT - 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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