Migration Review Tribunal (M.R.T.) Decision Summaries

Business and Skilled Visas 2008

Skilled Visas

071966457

8 December 2008, Melbourne

Ms G Hamilton, Member

SKILLED – AUSTRALIAN-SPONSORED (MIGRANT) (CLASS BQ) VISA – SUBCLASS 138 – CL.138.216 – NOMINATED SKILLED OCCUPATION – CL.138.225A – A delegate of the Minister for Immigration and Citizenship refused to grant the visa applicant a Skilled Australian Sponsored (Migrant) visa on the basis that he did not satisfy cl.138.216 of Schedule 2 of the Migration Regulations 1994 (the Regulations) because he was not employed in a skilled occupation for the relevant period of time. The visa applicant had nominated ‘Internal Auditor’ as his skilled occupation. The delegate found that the visa applicant’s work experience was best characterised as that of an Accounts Clerk, which was not on the skilled occupation list. Before the Tribunal, the visa applicant submitted evidence including financial statements prepared in his capacity as an accountant; emails; and letters from the Human Resources section and a structure chart for his company.

Held: Decision under review set aside

The Tribunal noted that the delegate had asked questions of the visa applicant directed at whether he had been working as an Internal Auditor, when that was not his claim. It found that the visa applicant did not have to be employed in the same skilled occupation nominated in the visa application and it was possible that the delegate had perceived the information before it through a negative prism. The Tribunal found that various parties confirmed that the applicant was not only designated as an Accountant but he actually worked in that role for two companies. Based on all the evidence, the Tribunal found that the visa applicant had been employed in a skilled occupation for at least 24 months in the period of 36 months immediately before the day in which the application was made. Accordingly, the visa applicant met the requirements in cl.138.216 and cl.138.225A.

071720960

24 September 2008, Sydney

Ms S Pinto, Member

SKILLED – NEW ZEALAND (RESIDENCE) (CLASS DB) VISA – SUBCLASS 863 – ONSHORE DESIGNATED AREA - SPONSORED NEW ZEALAND CITIZEN – CL.863.217 – EMPLOYMENT IN SKILLED OCCUPATION – A delegate of the Minister for Immigration and Citizenship refused the application for a New Zealand (Residence) (Class DB) visa on the basis that the applicant did not satisfy cl.863.217 of Schedule 2 to the Migration Regulations 1994 because he was not employed in the nominated skilled occupation of Property Manager. The applicant claimed that he was employed by a partnership comprising himself and his wife, which operated a farming/grain crop/lamb and wool business. The applicant claimed to have worked 70 hours a week for the business, out of which at least 20 hours was in the role of Property Manager as defined by the Australia Standard Classification of Occupations (ASCO) Dictionary. He carried out duties such as investigating proposals, assessing the viability of purchasing properties, budgeting and negotiating his lease agreement.

Held: Decision under review affirmed.

The Tribunal did not accept that the applicant was an employee of the partnership as the partnership only comprised himself and his wife and the applicant did not manage third parties’ properties on behalf of the partnership. The Tribunal was also not satisfied that the applicant’s duties during the relevant period were in the nature of a Property Manager as outlined in the ASCO Dictionary. The Tribunal considered that the description of the applicant’s tasks more closely aligned to that of a Grain, Oilseed and Pasture Grower, which was not on the Skilled Occupation List. Accordingly, as the applicant was not employed in a skilled occupation, the Tribunal found that the applicant did not meet cl.863.217.

071911474

23 September 2008, Sydney

Ms K Raif, Member

SKILLED – INDEPENDENT REGIONAL (PROVISIONAL) (CLASS UX) VISA – SUBCLASS 495 – CL.495.219A – SPONSORED BY STATE OR TERRITORY GOVERNMENT AGENCY – The applicant applied for a Skilled – Independent Regional (Provisional) (Class UX) visa on 15 January 2007. A delegate of the Minister for Immigration and Citizenship refused to grant the visa on the basis that the applicant did not satisfy cl.495.219A of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was not satisfied that he was sponsored by a State or Territory government agency at the time of the application. The applicant provided the Tribunal with a copy of a State Sponsorship Approval dated 18 January 2007 issued by the Small Business Development Corporation of Western Australia. Before the Tribunal, the applicant confirmed that the sponsorship from the Western Australian government agency was dated after the application but claimed that this was due to an error of his migration agent. The applicant claimed he was under the impression that his sponsorship had been approved and his agent had not informed him of the time limits of the sponsorship approval.

Held: Decision under review affirmed

The Tribunal found the letter dated 18 January 2007 from the Small Business Development Corporation of Western Australia did not equate to sponsorship as it was merely an agreement for the Western Australian government to sponsor the applicant in the future provided that he completed other requirements such as the signing of the agreement. The Tribunal found that the application was lodged on 15 January 2007 and, therefore, the applicant was not sponsored by the Western Australian government agency at the time when his application was made. The Tribunal accepted the applicant’s claim that the late provision of sponsorship was due to incorrect advice he received from his migration agent but found that it had no discretion in respect of this matter. Accordingly, it found that the applicant was not sponsored by a State or Territory government agency at the time of the application and did not meet cl.495.219A.

0713543314

24 July 2008, Melbourne

Ms W Boddison, Member

SKILLED – AUSTRALIAN SPONSORED (MIGRANT) (CLASS BQ) VISA – SUBCLASS 139 – CL.139.217 – EMPLOYED IN A SKILLED OCCUPATION – A delegate of the Minister for Immigration and Citizenship refused to grant the applicant a Subclass 139 visa as the delegate was not satisfied that the applicant had been employed in a skilled occupation for a period of, or for periods totalling, at least 12 of months in the 18 month period immediately before the day on which the visa application was made as required by cl.139.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The applicant nominated his skilled occupation as Sales Manager (ASCO 12310-11) and claimed to have worked for an automotive manufacturing company. However, the delegate was not satisfied on the evidence before her that the applicant had been employed in that skilled occupation for the relevant period. The applicant claimed that the Department had not undertaken the appropriate level of investigation into his claimed employment and provided the Tribunal with further information and evidence from his employer.

Held: Decision under review set aside.

The Tribunal examined the tasks and responsibilities that the applicant performed during the relevant period of employment. The Tribunal was impressed with the applicant’s evidence and level of knowledge of the industry in which he worked. He understood the role of market research and the Tribunal accepted that he was responsible for advertising, monitoring of sales, approval of discounts and the supervision of sales staff. The Tribunal noted that the applicant clearly undertook virtually all of the duties of a Sales and Marketing Manager as set out in ASCO code 12310-11. The Tribunal further accepted that the applicant worked in this role between September 2004 and March 2006. Accordingly, the Tribunal was satisfied that the applicant had been employed in a skilled occupation for the relevant period and that he therefore met the requirements of cl.139.217.

060826391

17 June 2008, Sydney

Ms S Leal, Member

SKILLED – INDEPENDENT OVERSEAS STUDENT (RESIDENCE) (CLASS DD) VISA – SUBCLASS 880 – CL.880.223 - VOCATIONAL ENGLISH - A delegate of the Minister for Immigration and Citizenship refused to grant the applicant an Independent Overseas Student (Residence) Subclass 880 visa on the basis that the applicant did not satisfy cl.880.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found he did not have vocational English as defined by r.1.15B of the Regulations. The applicant completed six IELTS tests and did not score five or more, in each of its components, in any of the tests. He contended that an IELTS test was not necessary and the Tribunal should instead consider whether the applicant had vocational English on the basis of his Australian study and vocational experience, particularly as his brother, who lodged his subclass 880 visa only days after the applicant, had not been required to sit for the test.

Held: Decision under review affirmed.

The Tribunal found that the pre-1 November 2005 policy gave Departmental officers discretion to require that an IELTS be undertaken by the applicant. The Tribunal found the exercise of the discretion in relation to his brother’s application was not material or relevant to the applicant’s case. The Tribunal found that the applicant did not have ‘vocational English’ as defined in r.1.15B(3) (and amended by the Migration Amendment Regulation 2006 (No. 6)) as it was not satisfied that the applicant had achieved a score of at least five or more for each of the four test components of speaking, reading, writing and listening in a test conducted during the processing of the application. As the applicant had an IELTS test score in a test conducted during the processing of the application, the exercise of the discretion in r.1.15B(4) could not be considered. As the Tribunal was not satisfied that the applicant had vocational English, he did not meet cl.880.223.

071678684

30 May 2008, Sydney

Ms S Pinto, Member

INDEPENDENT OVERSEAS STUDENT (RESIDENCE) (CLASS DD) VISA - SUBCLASS 880 – CL.880.222 – POINTS TEST - ENGLISH LANGUAGE – DESIGNATED SECURITY - A delegate of the Minister for Immigration and Citizenship refused the application for an Independent Overseas Student (Residence) (Class DD) subclass 880 visa on the basis that the applicant did not satisfy cl.880.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not have the qualifying score when assessed under the points test. In relation to the English language requirement in Part 3, the applicant stated that he had sat IELTS tests and had achieved at least 5 for each of the 4 test components, but had been unable to achieve 6 for each of the 4 test components. He claimed he felt unwell when he had to sit the test and could not concentrate. He claimed his English skills were adequate to live and work in Australia. The applicant also advised that he was able to deposit $100,000 into a designated security. The applicant claimed that the Department had closed the option of depositing a security and expressed frustration at this. His entitlement to points under other parts was not in dispute.

Held: Decision under review affirmed.

On the basis of the IELTS test results provided the Tribunal found the applicant was entitled to 15 points in accordance with Part 3 of Schedule 6A. The Tribunal was not satisfied that it was not reasonably practicable or necessary for the applicant to be tested under IELTS. The Tribunal accepted advice from the applicant that the option to deposit a security was no longer available and considered it unfortunate that the Department had effectively precluded this as an option whilst the legislation remained applicable for at least some applicants. However, in circumstances where the applicant had not deposited $100,000 into a designated security for a period of at least 12 months, the Tribunal was unable to find that he met item 6A81(a) of Schedule 6A. The Tribunal found the number of points to be awarded to the applicant was 110 at the time of the primary assessment and the time of the Tribunal’s assessment. At those dates, the pass mark was 115 points and the pool mark was 115 points. Accordingly, the Tribunal found that the applicant failed to achieve the qualifying score required to pass the points test or to be placed into the pool. The applicant did not meet cl.880.222 which was a prescribed criterion for the grant of the visa.

071115705

22 May 2008, Melbourne

Ms G Hamilton, Member

SKILLED – AUSTRALIAN-SPONSORED (MIGRANT) (CLASS BQ) VISA – SUBCLASS 138 – CL.138.225 – QUALIFYING SCORE – DESINGNATED SECURITY DEPOSIT – A delegate of the Minister for Immigration and Citizenship refused to grant the applicant a Subclass 138 visa as the delegate was not satisfied that the applicant had achieved the qualifying score when assessed under points test in Subdivision B of Division 3 of Part 2 of the Migration Act 1958 (the Act). The delegate found that the applicant was 15 points short of the pass mark of 110 points. After the delegate’s decision, the applicant and her spouse sat further English language tests which entitled them to an additional 10 points. The Tribunal wrote inviting the applicant to make a deposit of $100,000 in a designated security for a term of not less than 12 months, which would have entitled her to 5 bonus points under Part 8 of Schedule 6A of the Migration Regulations 1994 (the Regulations). However, on 30 November 2007 State Treasuries ceased accepting deposits.

Held: Decision under affirmed

The Tribunal found that although the applicant qualified for an extra 10 points on the basis of her and her spouse’s improved English language test results, her total score was 105 points, 5 points short of the pass mark. She did not have the qualifying score under the points test and therefore did meet cl.138.225 of Schedule 2 to the Migration Regulations 1994. The Tribunal noted that applicant was in a position to theoretically make a $100,000 deposit in a designated security. However, the bonus points were only available if the funds had in fact been deposited. The Tribunal also noted that the case could be characterised as involving unique or exceptional circumstances where the public interest may be served by the Minister exercising his powers to substitute for the Tribunal’s decision a more favourable one.

071943712

3 April 2008, Melbourne

Ms R Gagliardi, Member

SKILLED DESIGNATED AREA-SPONSORED (CLASS BQ) VISA – SUBCLASS 139 – VISA CANCELLATION – S.109 – BOGUS DOCUMENTS – A delegate of the Minister for Immigration and Citizenship cancelled the applicant’s Subclass 139 visa under s.109 of the Migration Act 1958 (the Act). The delegate found that he had not complied with ss.101 and 103 of the Act by giving incorrect answers on his visa application and providing bogus documents. The applicant had submitted the results from an International English Language Testing System (IELTS) test to acquire his visa. However, the Document Examination Training and Liaison Unit of the Department of Immigration and Citizenship, using facial matching software, concluded that another person had sat this test. The applicant submitted to the Tribunal that his visa should not be cancelled, as he was unaware that his migration agent had sent someone in his place, he was willing to sit an IELTS test and he occupied an important role in an Australian company.

Held: Decision under review affirmed

The Tribunal found that the applicant had not complied with ss.101 and 103 of the Act in the manner described in the s.107 notice. The visa application was incorrect and a bogus document was submitted. The applicant had admitted the document was bogus, did not attempt to rectify the situation and took advantage of the document to obtain a visa. He had never sat an IELTS test and the Tribunal was not satisfied that he would have passed. It accepted that he occupied a key position within an importing company employing Australians but there was limited information suggesting that he could not be replaced or that the company was unable to function prior to his arrival. It accepted that his spouse would suffer some hardship due to separation. However, they had no children and there was no evidence that cancellation would breach Australia’s non-refoulement obligations. The Tribunal was satisfied that the applicant’s visa should be cancelled.

071351220

2 May 2008, Sydney

Ms N Dougall, Member

DISTINGUISHED TALENT (MIGRANT) (CLASS AL) - SUBCLASS 124 – CL.124.211 – RECORD OF EXCEPTIONAL AND OUTSTANDING ACHIEVEMENT – BENEFIT TO AUSTRALIA – A delegate of the Minister for Immigration and Citizenship refused to grant the applicant a Subclass 124 Distinguished Talent (Migrant)(Class AL) visa as the delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in the sport of Black Bass Angling, that he was still prominent in the field and that he would be of exceptional benefit to Australia. The applicant claimed to be a highly distinguished angler, administrator and a trainer of bass anglers who was also involved in the conservation and hatchery of bass. The applicant claimed he had established many bass clubs and Bass Federation Chapters in Zimbabwe and South Africa; held presidential positions in these clubs and was considered the leading figure in the bass sports fishing community in Australia. He also claimed that he introduced new concepts and innovation for bass fishing internationally and mentored the first Australian to compete successfully on professional tours, who was also the highest ranked female angler in the world of bass and redfish angling. The applicant submitted that he was not claiming to meet the criteria as a currently competing angler. He further submitted that he would benefit Australia via his expertise in the technology of bass breeding, hatchery and conservation in Australia and that his connections and promotional skills would help Australian anglers qualify and represent Australia in international competitions. Furthermore, he submitted that he would have no difficulty in obtaining employment as he was qualified as a Deacon in the Catholic Church.

Held: Decision under review set aside

The Tribunal accepted evidence that the applicant was instrumental in establishing bass fishing as a competitive sport in Zimbabwe and South Africa. It accepted that the applicant was involved in the breeding and conservation. The Tribunal also accepted that the applicant was well known internationally and that he had established many bass clubs in South Africa and Zimbabwe as attested to by all of his referees. It found that the applicant’s record of exceptional and outstanding achievement was not just in competition but in his administration of the sport of Bass Angling and that he was still prominent in his field of Bass Angling. The Tribunal was satisfied that the applicant’s experience would strongly contribute to the establishment of a strong national competition for Bass Angling in Australia and may lead to international recognition of Australian Bass Anglers. It found that the applicant would be of exceptional benefit to the Australian community given his ability to raise Australia’s standing in the sport of Bass Angling. The Tribunal also found that the applicant would have no difficulty in obtaining employment, or in becoming established independently, in the area of bass fishing as he was a Deacon at his local Catholic Church. Accordingly, the Tribunal found that the applicant met the requirements in cl.124.211 for the grant of the visa.

071195250

18 February 2008, Sydney

Mr S Roushan, Member

SKILLED — INDEPENDENT OVERSEAS STUDENT (RESIDENCE) (CLASS DD) – SUBCLASS 880 – VISA REFUSAL – CL.880.230 – SKILLS ASSESSMENT – A delegate of the Minister for Immigration and Citizenship refused to grant the applicant a Subclass 880 (Skilled – Independent Overseas Student) visa on the basis that the she did not satisfy cl.880.230 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Clause 880.230(2) required that a qualification obtained in Australia must be the result of full time study of a registered course. The delegate found that she did not attend a registered course as the college was not registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). The applicant provided a Certificate III to Trades Recognition Australia (TRA) for a skills assessment in respect of her nominated skilled occupation as a pastry cook under the Australian Standard Classification of Occupations. Although TRA had provided the applicant with a positive skills assessment, the Certificate was not a qualification obtained as a result of study in a registered course within the meaning of the Regulations. During the course of the review the applicant submitted a further qualification.

Held: Decision under review set aside

The Tribunal found on the evidence that the applicant had been awarded a Certificate III from a second institution which was registered under CRICOS. It also noted that the applicant had lodged a second application for a skills assessment to TRA, including evidence of this new qualification obtained from the second college and details of relevant work experience. TRA provided a positive assessment. The Tribunal was satisfied that a relevant assessing authority had assessed the skills of the applicant as suitable for her nominated skilled occupation of pastry cook. Furthermore, there was no evidence before it that the information given or used as part of that skills assessment was false or misleading in a material particular. Accordingly the Tribunal was satisfied that the applicant met cl.880.230 for the grant of a Subclass 880 visa.

071221356

23 January 2008, Melbourne

Ms N Burns, Member

SKILLED – INDEPENDENT OVERSEAS STUDENT (RESIDENCE) (CLASS DD) – SUBCLASS 880 – VISA REFUSAL – CL.880.230 – REGISTRATION OF COURSE – CL.880.223 – VOCATIONAL ENGLISH – In March 2005 the applicant applied for a subclass 880 (Skilled – Independent Overseas Student) visa. A delegate of the Minister for Immigration and Citizenship refused to grant the visa. The delegate was not satisfied that the applicant met cl.880.230 of the Migration Regulations 1994 (the Regulations) because the course undertaken by the applicant was not registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). The applicant provided a skills assessment from Trades Recognition Australia and an International English Language Testing System (IELTS) Test Report showing she received a score of at least 5 on all four test components.

Held: Decision under review set aside.

The Tribunal found that, pursuant to the Migration Amendment Regulations 2005 (No. 3), cl.880.230 only applied to applications made on or after 1 July 2005. It also found a further amendment contained in the Migration Amendment Regulations 2006 (No. 4) applied to visa applications not finalised on 1 July 2006, but only those made on or after 1 July 2005. Accordingly, the Tribunal held that cl.880.230 was not a relevant criterion, either at time of the visa application or the time of decision and the applicant was not required to meet that clause. The Tribunal also considered whether the applicant met cl.880.223 which required her to have vocational English as defined in r.1.15B of the Regulations. It was satisfied the applicant had taken an IELTS test which was conducted not more than 12 months before the date of application. It further found that the applicant had achieved the requisite IELTS test results. Accordingly, the Tribunal found the applicant satisfied cl.880.223 for the grant of the visa.

Business Visas

071700498
4 August 2008, Sydney
Mr G Short, Senior Member

BUSINESS SKILLS – ESTABLISHED BUSINESS (RESIDENCE) (CLASS BH) – SUBCLASS 845 (ESTABLISHED BUSINESS IN AUSTRALIA) – CL.845.216 – DIRECT AND CONTINUOUS INVOLVEMENT IN MANAGEMENT OF A BUSINESS – A delegate of the Minister for Immigration and Citizenship refused to grant the applicant a Business Skills – Established Business (Residence) (Class BH) visa on the basis that the applicant did not satisfy cl.845.216 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that, in the 12 months immediately preceding the making of the application, the applicant, was the owner of an interest in a main business in Australia, had maintained direct and continuous involvement in the management of that business from day to day and in making decisions that affected the overall direction and performance of that business. The applicant claimed to have an interest in a grocery shop business. She gave evidence as to her major management responsibilities and activities undertaken, including meeting customers and suppliers, repainting walls, replacement of some of the machinery and general renovations to the business. She said this had led to a steady growth in the business. She also submitted letters from some of her suppliers, essentially confirming the applicant’s involvement in the business.

Held: Decision under review set aside.

The Tribunal found that, during the relevant period, the applicant had the requisite interest in a grocery shop business. The Tribunal also considered that over the course of the processing of the application the applicant demonstrated her direct involvement in the management of the business and in making decisions which have affected the overall direction and performance of that business. Having regard to all of the evidence before it, the Tribunal found that during the relevant period the applicant did maintain direct and continuous involvement in the day to day management of the business and in making decisions that affected the overall direction and performance of the business. It was therefore satisfied that the applicant met cl.845.216.

071635702

18 June 2008, Sydney

Mr J Duignan, Member

BUSINESS SKILLS – ESTABLISHED BUSINESS (RESIDENCE) (CLASS BH) – SUBCLASS 845 – CL.845.215 – NET ASSETS OWNED IN MAIN BUSINESS IN AUSTRALIA OF AT LEAST $100 000 – A delegate of the Minister for Immigration and Citizenship refused to grant the visa applicants a Business Skills – Established Business (Residence) (Class BH) Subclass 845 visa on the basis that the first named applicant did not satisfy cl.845.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the first named applicant did not hold assets of at least AUD$100 000 in the businesses relied upon in respect of the application. The applicants relied upon the first and second named applicant’s shareholding in two main businesses. Before the Tribunal, the applicants submitted that the delegate erred in the relevant calculation for the net assets owned in one of the businesses. It was submitted that loans which had been assigned to the applicants from the previous owners should be used in the calculation of total net assets because the relevant policy did not indicate that the loans had to originate with the applicants, or whether they could be assigned.

Held: Decision under review set aside.

The Tribunal was of the view that the appropriate way to treat the loans in considering the net assets of the applicants was that they should be treated as having been written off by the previous owners of the business. The previous owners clearly assigned those loans so that they had no further call on the company, and the sale price of AUD$85,000 indicated that they were not regarded by seller or purchaser as having their full value at the time of the sale. For this reason, the Tribunal came to the view that the loans, totalling AUD$415,000 should not be included in any calculation of the net assets held in the business after its purchase in 2003. The Tribunal formed the view that the loans should be treated as written off entirely and should therefore be removed from the calculation in their entirety. After making the relevant calculations without having regard to the assigned loans, the Tribunal found that the applicant met cl.845.215, as the available evidence supported a conclusion that the first and second named applicants together owned assets of at least $100,000 at the time when the application was made and during the relevant 12 month period for the purpose of that clause.

071561135

19 May 2008, Melbourne

Mr D Thomas, Member

BUSINESS SKILLS (RESIDENCE) (CLASS DF) VISA – SUBCLASS 892 – CL.892.212 – TOTAL VALUE OF NET ASSETS – GOODWILL - A delegate of the Minister for Immigration and Citizenship refused to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 892 visa on the basis that he did not satisfy cl.892.212 of Schedule 2 to the Regulations. The essential impediment to applicant satisfying cl.892.212 was the accounting treatment of ‘goodwill’ and its corresponding effect on the valuation of the visa applicant’s assets in the business. The applicant was a partner in the business, together with his wife and daughter. The partnership funds were divided between the partners such that the applicant received 91.2% of the funds. The applicant claimed the partnership purchased the business for $150,000. The applicant also claimed the purchase price was attributable to the purchase of the business lease, and that the lease purchase was described in financial statements as goodwill. Following the Tribunal’s request for further information pursuant to s.359(2) of the Migration Act 1958, the applicant submitted details of the valuation of the goodwill, calculated under Australian Accounting Standards Board Standard 3 (AASB-3)

Held: Decision under review set aside

The Tribunal was satisfied that the partnership purchased the business at $150,000 and that the applicant had an ownership interest in a main business in accordance with r.1.11(1)(a) of the Regulations. The Tribunal considered relevant policy and accepted that the purchase price reflected goodwill at a value of $150,000, valued in accordance with AASB-3. The Tribunal had the benefit of an explanation by the accountant as to how he reached the valuation of goodwill and accepted that explanation. The Tribunal found that the goodwill was an asset of the business; was purchased by the applicant and other partners in a reasonable arms-length transaction; and there were good reasons to believe the genuineness of the sale and the value of the goodwill. The Tribunal referred to the financial statements subsequent to purchase and considered that the value of the net assets had not reduced below the original purchase price. The Tribunal therefore had no reason to believe the value of the goodwill was impaired between the date of purchase and the date of application. The Tribunal found that the value of the net assets in the main business was AUD$167,030, and that throughout the 12 months immediately before the application was made, the applicant and his spouse had an ownership share of 95.6% of the net assets, or $159,681. As this figure was at least $75,000, the applicant satisfied cl.892.212(c) and accordingly satisfied cl.892.212 as a whole.

060805021

15 April 2008, Sydney

Mr R Inder, Member

ESTABLISHED BUSINESS (RESIDENCE) (CLASS BH) – SUBCLASS 845 – CL.845.212 – NINE MONTHS – A delegate of the Minister of Immigration and Citizenship refused to grant the visa applicants Subclass 845 visas on the basis that the primary applicant did not meet cl.845.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the primary applicant had been in Australia as the holder of a temporary substantive visa for at least nine months during the period of 12 months immediately preceding the making of the visa application. The applicants departed Australia on 12 November 2004 and returned on 13 March 2005. They applied for a Subclass 845 visa on 5 December 2005. The applicants claimed ‘months’ was not defined in the Regulations, and that a legislative intention behind cl.845.212 was that the clause should not be construed narrowly so as to preclude applicants who fell short of the nine months in Australia by a matter of days. The applicants also claimed humanitarian and hardship arguments ought to be considered including that the applicant had established a sound and effective business in Australia and had 3 Australian-born children.

Held: Decision under review affirmed

The Tribunal found that the applicants had not been in Australia for at least nine months during the period of 12 months preceding the making of the visa application. The Tribunal considered the definition of ‘calendar month’ in the Acts Interpretation Act 1901 (Cth) and considered itself bound to apply it. In doing so, the Tribunal found that while the applicants returned to Australia on 13 March 2005, in order to satisfy cl.845.212 the applicants would have had to have returned to Australia on or before 6 March 2005. Accordingly, the Tribunal found that the applicants did not satisfy cl.845.212 and therefore did not satisfy cl.845.221. The Tribunal also recommended that as their failure to meet this criteria was by such a narrow margin and was so technical in nature, favourable consideration be given to granting the visas on compassionate or humanitarian grounds as the hardship of refusing the visas on the primary applicant’s Australian business and family would not be commensurate in nature to the failure to meet this criteria by just a few days.

071414113

31 January 2008, Sydney

Ms A MacDonald, Member

BUSINESS – NOMINATED POSITION – R.5.19(2)(e) – ADEQUATE PROVISION FOR TRAINING – A delegate of the Minister for Immigration and Citizenship rejected the applicant’s application for approval of an Employer Nomination Scheme nominated position under r.5.19 of the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the applicant had made, and continued to make, adequate provision for training existing employees in work relevant to the business as required by r.5.19(2)(e). The applicant, an Islamic organisation, employed a Head Imam and two Assistant Imams. One of the Assistant Imams was the subject of the nominated position. Before the Tribunal, the applicant submitted that there was no formal training available in Australia for Imams. Training was only available overseas, but the Head Imam held short courses and seminars to train and familiarise Imams on the needs of the community. The Imams also attended lectures and workshops conducted by visiting scholars from overseas. The applicant provided supporting documents detailing the short courses conducted, examples of seminar and lecture programs and examples of training delivered by visiting scholars.

Held: Decision under review set aside.

The Tribunal accepted that the applicant, in conjunction with other Islamic organisations, had in place a training program for its Imams. It further accepted the training program was in the form of short courses and seminars and that the Imams also attended lectures and workshops conducted by visiting scholars from overseas. The Tribunal found that the applicant provided training for its employees. It was satisfied that the applicant had made, and continued to make, adequate provision for training existing employees in work relevant to the business. Accordingly, it found that the applicant satisfied r.5.19(2)(e).

071582459
23 January 2008, Melbourne
Mr P Fisher, Member

BUSINESS SPONSORSHIP – S.140L(E) – SPONSORSHIP APPROVAL BAR – R.1.20CB(1)(B) – COMPLIANCE WITH UNDERTAKING – A delegate of the Minister for Immigration and Citizenship barred the applicant from applying for approval as a business sponsor for six months under s.140L(e) of the Migration Act 1958 (the Act). The delegate considered that the review applicant had sponsored an individual for employment in an occupation corresponding to the gazetted skilled occupation of Fitness Centre Manager, but who was only working in a position comparable to a Fitness Instructor which was not a gazetted skilled occupation. The delegate found that the review applicant had failed to comply with its undertaking under s.140H of the Act and r.1.20CB(1)(b) of the Migration Regulations 1994 (the Regulations) not to employ an individual who would breach Australian immigration law as a result of that employment. The applicant provided information to the Tribunal supporting its claim that the individual performed managerial duties including purchasing equipment, training staff and marketing activities.

Held: Decision under review set aside.

The Tribunal accepted that the employee’s workplace duties were consistent with the listing for the nominated skilled occupation of Fitness Centre Manager under the Australian Standard Classification of Occupations. The Tribunal also accepted that the individual had been held out to be the Fitness Centre Manager within the review applicant’s organisation and to the general public. The Tribunal accordingly found that there had not been any breach of the review applicant’s undertaking under r.1.20CB(1)(b) of the Regulations for the purposes of s.140H of the Act. The Tribunal therefore concluded that the power under s.140L(e) of the Act to bar the applicant as a business sponsor in future had not been enlivened.

071365608

18 January 2008, Sydney

Ms A MacDonald, Member

BUSINESS SKILLS – ESTABLISHED BUSINESS (RESIDENCE) (CLASS BH) VISA – SUBCLASS 845 – VISA REFUSAL – CL.845.213 – VISA REFUSAL – OWNERSHIP INTEREST – A delegate of the Minister for Immigration and Citizenship 2 refused to grant the applicants Subclass 845 (Established Business in Australia) visas on the basis that the primary visa applicant did not satisfy cl.845.213 of the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that at the time of application the primary visa applicant had an ownership interest in one or more established main businesses in Australia for the 18 month period immediately preceding the visa application. The applicant claimed before the Tribunal that, although not formally appointed to the position, she oversaw staff, managed logistics and acted in the capacity of a director of an established main business in Australia.

Held: Decision under review set aside.

The Tribunal accepted on the basis of the available evidence that the applicant had a 20 per cent shareholding in a business operated for the purpose of supplying goods to Australian markets. It was also satisfied that, although the business had been structured through a family trust and the applicant’s step-father was principal of the trust and only director of the company, the applicant was actively involved in the daily operations of that business as well as its management and overall direction. The Tribunal concluded that the primary applicant had and continued to have an ownership interest in an established main business in Australia for the 18 month period immediately preceding the visa application. The Tribunal was accordingly satisfied that the applicants satisfied cl.845.213 of the Regulations for the grant of the visas.

Employer Sponsorship Visas - Permanent

071962746

3 December 2008, Melbourne

Ms G Hamilton, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) VISA – SUBCLASS 856 (EMPLOYER NOMINATION SCHEME) VISA – CL.856.213(C)(ii) – VOCATIONAL ENGLISH - EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister for Immigration and Citizenship refused to grant the applicant an Employer Nomination (Residence) visa. The delegate found that she was unable to satisfy cl.856.213(c)(ii) of the Migration Regulations 1994 (the Regulations), which required that an applicant have vocational English unless exceptional circumstances applied. The sponsor was a custom-made wig wholesaler and retailer. The applicant was a highly-skilled and experienced wig-maker who had been employed for several years. Before the Tribunal, the sponsor submitted that the wig-making industry in Australia was very small, that it was impossible to recruit local personnel having the requisite skill and that the applicant could understand many instructions immediately. Although the applicant’s level of English was functional or less, she experienced no language difficulties since co-workers spoke Chinese and several were bilingual. She was also able to pass on her skills by demonstrating techniques to co-workers and communicating sufficiently in English. She also wrote the training manual which was then translated.

Held: Decision under review set aside

The Tribunal found that the applicant had been successfully working within an English-speaking environment for several years. It also found that her job was a craft where use of language was not integral. The Tribunal accepted that the applicant could communicate and physically demonstrate her skills to the small number of Australian employees working in the sponsor’s business. The Tribunal found that the applicant was largely understood in a mainly English-speaking workplace and was able to understand most instructions including those relating to Occupational Health and Safety requirements and employee entitlements. The Tribunal also accepted that the applicant was regarded as an essential component of the sponsor’s business. A compelling case had been made that her skills were very rare in Australia and that it would not be possible to replace her locally. Accordingly, exceptional circumstances applied and the Tribunal found that the applicant satisfied cl.856.213(c)(ii).

0801652/0801653

2 December 2008, Melbourne

Ms D Buljan, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 857 (REGIONAL SPONSORED MIGRATION SCHEME) VISA – CL.857.221(A) – APPROVAL OF EMPLOYER NOMINATION – A delegate of the Minister for Immigration and Citizenship refused to grant the applicant a Regional Sponsored Migration Scheme (Class BW) visa because he did not satisfy cl.857.221(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that at the time of decision, the application for a permanent appointment under the employer nomination scheme lodged by the nominating company had not been approved. The company proposed to employ the applicant as a Chef under the Australian Standard Classification of Occupations (ASCO). Before the Tribunal, the applicant provided evidence of prior employment including an employer reference indicating that he was highly valued for his professional cooking skills. The applicant did not appear at hearing before the Tribunal.

Held: Decision under review affirmed

The Tribunal noted that the company’s application for a permanent appointment under the Employer Nomination Regional Sponsored Migration Scheme (RSMS) had been refused. The delegate had not been satisfied that the work to be performed in the nominated position met r.5.19(4)(c) of the Regulations. This conclusion had been affirmed by the Tribunal in a separate decision. Accordingly, the applicant would be unable to satisfy the criteria for the grant of a subclass 857 visa because he did not have an approved appointment as required by cl.857.221(a). Although the applicant could only be considered against the criteria for a Subclass 857 visa in the circumstances, it also found that there was no approved appointment as required by cl.856.221(a) and therefore the applicant could not meet the criteria for the grant of a Subclass 856 visa. The Tribunal accordingly affirmed the decision under review, finding that the applicant was not entitled to the grant of a Regional Sponsored Migration Scheme (Class BW) visa.

071932713

31 October 2008, Sydney

Mr H Wyndham, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 856 – CL.856.213(c)(ii) – VOCATIONAL ENGLISH – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister for Immigration and Citizenship refused to grant a Subclass 856 (Employer Nomination Scheme) visa on the basis that the applicant did not satisfy cl.856.213(c)(ii) of Schedule 2 to the Migration Regulations 1994 (the Regulations), as he did not have Vocational English and exceptional circumstances did not apply to the situation. Before the Tribunal, the applicant claimed that he did not need vocational English in order to perform his job and that constituted exceptional circumstances. The applicant submitted recent IELTS test results which showed improvements in results from an average of 2.5 to an average of 4. Evidence was also presented that he had continued his study of English, and it was argued that it was reasonable to assume there would be further improvement if another test were to be done.

Held: Decision under review set aside

The Tribunal did not accept that there being no need for Vocational English – even if that were true – constituted exceptional circumstances for the purposes of cl.856.213. The Tribunal noted there were various policy reasons for the requirement that an applicant have Vocational English and they were not all satisfied merely because the work involved was conducted in a wholly or largely non-English-speaking environment. The latest IELTS results submitted by the applicant showed scores between 5 (reading) and 3 (speaking) for an average of 4, and this failed the requirement of achieving 5 in all four test components for Vocational English. However, the Tribunal considered that the applicant was clearly improving his English, and that an IELTS test if conducted at the end of his present course would show him more closely approximating and possibly achieving Vocational English. The Tribunal considered that these factors, together with the applicant’s genuine intention to pursue English language studies constituted exceptional circumstances. The Tribunal therefore found that the applicant met cl.856.213(c)(ii).

071467029

12 June 2008, Melbourne

Ms D Buljan, Member

EMPLOYER NOMINATION – R.5.19(4)(C) – NOMINATED POSITION – QUALIFICATIONS – EXCEPTIONAL APPOINTMENT - A delegate of the Minister for Immigration and Citizenship refused the applicant’s application for approval of an Employer Nomination under the Regional Sponsored Migration Scheme. The delegate was not satisfied that r.5.19(4)(c) of the Migration Regulations 1994 (the Regulations) had been met because the work to be performed by the nominated position of Production Horticulturalist did not require a person with a diploma or higher qualification. The delegate was not satisfied that the nominated position was an exceptional appointment. Before the Tribunal, the applicant submitted that the delegate’s decision was affected by jurisdictional error and that the Tribunal lacked jurisdiction to review a nullity. It was also submitted that the delegate wrongly went behind a certificate from the relevant Regional Certifying Body for the purposes of r.5.19(4)(e). Evidence was provided concerning the employment conditions, duties and skills associated with the nominated position. It was also claimed that this was an exceptional appointment given local labour shortages and because a reliable worker, knowledgeable in horticultural production issues, rather than inexperienced seasonal contractors would contribute to the business’s success.

Held: Decision under review affirmed.

The Tribunal was satisfied that it had jurisdiction to review the decision irrespective of whether the delegate complied with s.57 of the Migration Act 1958. The Tribunal also found that it was not bound to approve the Employer Nomination merely because there was a certificate from the Regional Certifying Body in accordance with r.5.19(4)(e). Considering the evidence, including submissions from relevant industry bodies, the Tribunal found that the work to be performed required the appointment of a person with a Certificate III qualification rather than a diploma or a ‘higher qualification’ as required by r.5.19(4)(c). The Tribunal was also not satisfied that appointment was ‘exceptional’. While noting the applicant’s need for skilled labour in the current environment, the Tribunal found skill shortages were not unique or exceptional in the applicant’s operations; rather the issue was common across the agricultural and horticultural sectors. Accordingly, r.5.19(4)(c) was not satisfied and the application for approval of an Employer Nomination refused.

071345891

9 May 2008, Melbourne

Ms R Gagliardi, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) VISA – EMPLOYER NOMINATION – REGULATION 5.19(2)(I) – PAYMENT OF GAZETTED SALARY – POLICY INTENTION – A delegate of the Minister for Immigration and Citizenship refused to approve an employer nomination for the applicant organisation. The delegate found that it did not satisfy r.5.19(2)(i) of the Migration Regulations 1994 (the Regulations) because it was not apparent that the nominated employee would be paid a salary that is at least the salary specified for the relevant occupation and location in the relevant Gazette Notice in force at the time at which the application for approval of the nominated position was made. Before the Tribunal, the applicant provided financial information indicating that the proposed employee, nominated for the position of Minister of Religion, would receive subsidies from it but would also be expected to raise their own financial support.

Held: Decision under review set aside

The Tribunal considered the policy underlying the employer nomination requirement of r.5.19(2)(i) of the Regulations. Nominations by religious organisations for positions with primary religious duties are regarded as satisfying this requirement if they either offer at least the gazetted salary or provide for all the nominee’s living needs, including board, lodging and cash allowances for daily expenses and will meet all health, education, welfare and other costs incurred by them and dependent family members directly from its own funds, at a value that equates with the gazetted salary. The Tribunal found that this policy was intended to prevent the exploitation of religious workers, ensure that their quality of life was not compromised and that small to medium-sized religious organisations could sustain their volunteer corps. The Tribunal gave significant weight to the most recent submissions provided by the applicant that more accurately represented the nominated employee’s annual living costs and the subsidies provided to her. Accordingly the Tribunal found that the applicant satisfied r.5.19(2)(i) of the Regulations and substituted a decision that the employer nomination be approved.

071557619

16 April 2008, Brisbane

Ms R Johnston, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) VISA – SUBCLASS 857 – CL.857.213(b)(ii)(A) – AGE – EXCEPTIONAL APPOINTMENT – A delegate of the Minister for Immigration and Citizenship refused to grant a Subclass 857 visa on the basis that the applicant did not satisfy cl.857.213(b)(ii)(A), as the applicant was over 45 years old and the delegate was not satisfied that the position she was nominated for was exceptional in relation to age. The applicant was 56 years old and nominated by Central Queensland University (“CQU”) for the position of Conservation Biologist/Environmental Scientist. She contended that exceptional circumstances existed for the nominated position as the multidisciplinary aspects made it unique and highly specialised; she had performed the duties of the nominated position for several years; her age was not a hindrance, but rather an asset given the knowledge and experience she had acquired; and she was one of the few experts on the subject of an endangered Australian wallaby.

Held: Decision under review set aside

The Tribunal had regard to the position description and statements from the applicant’s employer and references from third parties and was satisfied that the nominated position normally requires a person with skills and experience acquired over many years and that it would be difficult, if not impossible, to find a suitably qualified person younger than the applicant. The Tribunal accepted the employer’s statement that due to the nature of the position to be filled, a person over the age of 45 was required. The Tribunal also considered the employer’s suggestion that without the applicant managing and overseeing all aspects of Wildlife Unit operations, it would cease to operate. The Tribunal considered this plausible because of the remoteness of the location, the inability of CQU to have sufficient funding/resources to pay ‘cash’ remuneration, the current skill shortages in Australia and the multidisciplinary skills and vast experience that the applicant possesses. The Tribunal was satisfied that the appointment was exceptional in respect of the age requirement and that the applicant met cl.857.213(b)(ii)(A) and cl.857.213 as a whole.

Employer Sponsorship Visa - Temporary

0800462

9 December 2008, Melbourne

Mr G Haddad, Member

STANDARD BUSINESS SPONSOR – R.1.20D(2)(C) – DEMONSTRATED TRAINING RECORD OR COMMITMENT – A delegate of the Minister for Immigration and Citizenship refused the applicant company’s application for approval as a standard business sponsor under r.1.20D of the Migration Regulations 1994 (the Regulations). The delegate refused to approve the sponsorship due to insufficient evidence in the application and was not satisfied that r.1.20D(2)(f) had been satisfied. Before the Tribunal, the company provided evidence including profit and loss statements, bank statements, a certificate of company registration and business activity statements. The evidence also included copies of training advice that four staff had attended a short course on the responsible service of alcohol.

Held: Decision under review affirmed

The Tribunal considered whether the applicant company would introduce, utilise or create new or improved technology or business skills, or had a satisfactory record or demonstrated commitment towards training Australian citizens and permanent residents, as required by r.1.20D(2)(c). There was no evidence before the Tribunal that the applicant would introduce, utilise or create new or improved technology or business skills. The Tribunal noted that the $250 expended on staff training represented a small fraction of the company’s total income, salaries and net profit and that all of the expenditure on training was in relation to the responsible service of alcohol course. The Tribunal was not satisfied, on balance, that the applicant’s training record was reasonably commensurate with the nature and extent of its business operations. It was also not satisfied that it had a satisfactory record or demonstrated commitment towards training Australian citizens and permanent residents. The Tribunal found that the applicant did not meet r.120D(2)(c) and accordingly could not approve the sponsorship.

071602755

3 December 2008, Sydney

Ms P Pope, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) VISA – SUBCLASS 457 BUSINESS (LONG STAY) VISA – CL.457.224(a) – PUBLIC INTEREST CRITERION 4014 – COMPELLING CIRCUMSTANCES – A delegate of the Minister for Immigration and Citizenship refused to grant the visa applicant a Temporary Business Entry visa because he did not satisfy cl.457.224(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant failed to satisfy Public Interest Criterion (PIC) 4014 which required that applicants affected by a “risk factor” must apply for the visa more than three years after departing Australia unless compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, justify an earlier grant. Before the Tribunal, the review applicant company gave evidence that the visa applicant had been employed by it, he was found to be good at his trade and considered to be a capable and reliable employee. The witness also submitted that the applicant’s skills as an expert mechanic specialising in Mercedes Benz vehicle repairs were difficult to find in Australia and the workshop faced closure if a mechanic could not be located.

Held: Decision under review affirmed

The Tribunal considered that the existence of compelling circumstances affecting Australian interests was a question of fact for it to be assessed in light of Departmental guidelines. There was no evidence before it, nor any claims, that there were compelling circumstances. The Tribunal accepted that the visa applicant was a skilled motor mechanic during the period of his employment with the company and was a desirable employee because he possessed skills which were in short supply. It also accepted that the business would employ such individuals if able to source them locally to operate more efficiently. However, the claim that the workshop would close if the visa was not granted had not been substantiated to the Tribunal by any evidence such as business or financial records. The Tribunal found that the applicant did not satisfy PIC 4014 and accordingly did not meet the criterion in cl.457.224.

0804641

12 November 2008, Sydney

Mr D O'Brien, Principal Member

TEMPORARY BUSINESS ENTRY (CLASS UC) VISA – SUBCLASS 457 – VISA CANCELLATION – S.116(1)(b) – CONDITION 8107 – INCONSISTENT POSITION OR OCCUPATION – FAMILY HARDSHIP – A delegate of the Minister for Immigration and Citizenship cancelled the applicant’s Subclass 457 visa under s.116(1)(b) of the Migration Act 1958 because he had breached condition 8107 of his visa. Condition 8017 of Schedule 8 to the Migration Regulations 1994 required that the visa holder not work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted. The applicant was granted his visa on the basis of sponsorship as a sheetmetal worker. A compliance officer of the Department of Immigration and Citizenship located the applicant driving a hire car for another company during a field operation at Sydney airport. The applicant explained that when he arrived in Australia his sponsoring company had gone into liquidation. He claimed to have been working in the hire car job to cover his family’s expenses including significant medical expenses incurred on behalf of his son. The Tribunal issued a summons to the sponsoring company requiring the production of wage records but it was not returned.

Held: Decision under review set aside

The Tribunal was satisfied that the ground in s.116(1)(b) for cancellation of his visa existed. It found that the visa holder had been working as a hire car driver, which was inconsistent with the position of sheetmetal worker in relation to which the visa had been granted. It also found that he was still working for the sponsoring company which was unable to provide sufficient work for him. As to whether the visa should be cancelled, the Tribunal was satisfied that the applicant had breached his visa conditions for reasons of financial necessity, supplementing his income with afternoon or evening shifts driving hire cars to meet his family’s necessities of life. Although cancellation of the applicant’s visa would not have an undue adverse effect upon his children as the best interests of them would be to remain united with their parents, departure from Australia would cause family hardship because of the son’s need for medical treatment and the unlikelihood of accessing the same quality of medical care in Lebanon. Accordingly the Tribunal set aside decision under review and substituted a decision not to cancel the applicant’s Subclass 457 visa.

071811249

29 October 2008, Sydney

Mr H Wyndham, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 – CL.457.223(4)(d)&(e) – PERSONAL ATTRIBUTES AND EMPLOYMENT BACKGROUND – NECESSARY SKILLS TO PERFORM THE ACTIVITY – The delegate refused the application for a Temporary Business (Class UC) visa on the basis that the applicant did not satisfy cl.457.223(4)(d) or (e) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not have the required skills, experience or employment background to perform the approved nominated occupation as a cook. The applicant submitted certificates and a VCD of him cooking. The Tribunal also received a report from the Consulate General of a site visit and opinions that the normal practice for assessing cooks favoured experience over qualifications in part due to the prevalence of fraud.

Held: Decision under review affirmed

The Tribunal watched the VCD in which the applicant cooked ten dishes in ten minutes. It found this to be very quick, but noted that the ingredients had been prepared beforehand. It found that the VCD clearly showed a demonstration for the benefit of the Tribunal and not a working chef in a restaurant preparing food for the consumption of clients. This limited the weight the Tribunal was prepared to give the VCD. It preferred the report of the Consulate General which gave an unfavourable verdict on the applicant’s restaurant work. The Tribunal also accepted the view of the Consulate General that one certificate provided was, according to a senior employee for the issuing school, of no value. As certificates were easily obtained it further accepted the Consulate General’s view they could be given little weight. The Tribunal therefore found the applicant was not a chef. As such, the Tribunal was not satisfied the applicant had the personal attributes and employment background required to perform the activity for which he was nominated. Nor did it accept that he demonstrated the necessary skills. The Tribunal found the applicant did not meet the requirements in cl.457.223(4)(d) or (e) of the Regulations for the grant of the visa.

071870846

26 September 2008, Sydney

Ms B Connolly, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) VISA - SUBCLASS 457 – CL.457.223(4)(d) – PERSONAL ATTRIBUTES AND EMPLOYMENT BACKGROUND - A delegate of the Minister for Immigration and Citizenship refused the application for a Temporary Business Entry (Class UC) Subclass 457 visa on the basis that the applicant did not satisfy cl.457.223(4)(d) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not have the required skills, experience or employment background necessary to perform the nominated activity. A Departmental officer had confirmed that the applicant’s qualification certificate was genuine. However, despite claiming he was a specialist in Min cuisine, during a phone interview, the applicant was unable to answer questions about famous Min dishes, the special cooking skills of that cuisine, or the common ingredients or condiments used in that style of cooking.

Held: Decision under review set aside

The Tribunal accepted the evidence of the sponsor’s managing director about his observation of the applicant preparing and cooking Chinese dishes for him in China and his opinion that he considered the applicant to be experienced and skilled to the level expected of the nominated position. The Tribunal also accepted the evidence of the head chef of the restaurant at which the applicant was employed in China as to his experience, skills and expertise. The Tribunal placed less weight on the observations made by the Departmental officer, as it did not consider that the questions asked of the applicant were sufficient to make accurate judgments about the applicant’s experience, skills and expertise. The Tribunal was satisfied that the applicant had personal attributes and an employment background which were directly relevant to and consistent with the activity of Cook. Therefore, the Tribunal found that the visa applicant met the requirements of cl.457.223(4)(d).

0803540

19 September 2008, Melbourne

Ms R Gagliardi, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 (BUSINESS (LONG STAY)) – S.109 – CANCELLATION – A delegate of the Minister for Immigration and Citizenship cancelled the applicant’s Subclass 457 (Business (Long Stay)) visa under s.109 of the Migration Act 1958 (the Act). The delegate was satisfied that the applicant had not complied with ss.101, 102 and 105 of the Act as it found that he had provided false and misleading information to the Department. The applicant claimed that he had not provided the Department with details of his criminal record on the advice of his migration agent, who had advised him that convictions occurring more than 10 years in the past were not relevant. The applicant also claimed to have forgotten to include details of criminal convictions occurring less than 10 years ago, including 12 current charges and an outstanding warrant for his arrest in England. The applicant stated that he wanted to provide his children with an opportunity to work in Australia and asked the Tribunal to take into account his extensive work experience in the building trade as well as the fact that he had an unfortunate start to life which had led him to make mistakes he now regretted.

Held: Decision under review affirmed.

The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act, that the notice issued under s.107 complied with the statutory requirements and that there was non-compliance by the applicant in the way described by s.107 notice. The Tribunal did not accept that the applicant’s agent had advised him not to disclose criminal records greater than 10 years old, or that he had forgotten to disclose those occurring as recently as 2003. Further,the Tribunal found that there was no evidence that the applicant would have voluntarily offered information of his convictions to the Department had it not investigated him, nor was he likely to have been granted a visa had the information been disclosed. Accordingly, having regard to all the circumstances, the Tribunal was satisfied that his Subclass 457 visa should be cancelled.

0803878

29 August 2008, Sydney

Mr G Short, Senior Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 (BUSINESS (LONG STAY)) – CL. 457.328 – PUBLIC INTEREST CRITERION 4017 – AUSTRALIAN CHILD ORDER - A delegate of the Minister for Immigration and Citizenship refused to grant the applicant a subclass 457 visa on the basis that the applicant did not meet cl.457.328 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The applicant at the time was five years old, and a citizen of the USA. She first came to Australia in 2004 with her parents on a tourist visa. She and her parents were granted subclass 457 visas on 2 June 2004 valid until 2 June 2007. On 1 June 2007, the applicant’s mother applied for a further subclass 457 visa which included the applicant as a secondary applicant. The applicant’s parents separated in late 2004 and her father subsequently returned to the USA. In October 2007, her mother initiated divorce proceedings in the Family Court. The delegate found that the applicant did not meet Public Interest Criteria (PIC) 4017 as no court documents or legal papers had been provided to confirm that the laws of the applicant’s home country permitted the removal of the applicant. The delegate found that the father did not consent to the grant of the visa. Further, as the proceedings in the Family Court had not reached their conclusion there was no ‘Australian Child Order’ in force in relation to the applicant. On 11 August 2008, an order was made by a Judicial Registrar under the Family Law Act that, among other things, until further order the applicant is to live with her mother. The father’s adviser argued that the grant of the subclass 457 visa would not be consistent with the orders as these were interim orders only, and may be revoked or varied at any time.

Held: Decision under review set aside

The Tribunal considered that the issue in the present case was whether the applicant could meet one of the alternatives in PIC 4017, which required ‘the grant of the visa to be consistent with any Australian child order in force in relation to the applicant’. The Tribunal found that the order made was an ‘Australian Child Order’ being a parenting order which deals with whom the child is to live with. The Tribunal found that the grant of the visa would be consistent with the order, notwithstanding that it was made ‘until further order’. The legislative scheme did not require that final orders be made before PIC 4017 is satisfied. The Tribunal was further satisfied that the applicant met PIC 4018 as there was no compelling reason to believe that the grant of the visa would not be in the best interest of the applicant.

071831009

28 August 2008, Melbourne

Mr P Katsambanis, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) - SUBCLASS 457 – VISA REFUSAL – CL.457.223(4)(d) – RELEVANT PERSONAL ATTRIBUTES AND EMPLOYMENT BACKGROUND – A delegate of the Minister for Immigration and Citizenship refused to grant the applicants subclass 457 Temporary Business Entry (Class UC) visas. The delegate was not satisfied that the primary visa applicant had the suitable personal attributes and employment background that were relevant to, and consistent with, the nature of the activity to be performed. The applicant claimed to be employed as a cook at a seafood restaurant. The Department of Immigration and Citizenship (the Department) conducted a site visit to the primary visa applicant’s claimed place of employment. The only report relating to the site visit was an email which stated that this was ‘A non-genuine referral outcome, See below for photos’, with seven photographs were attached. The delegate found that the applicant did not meet cl.457.223(4)(d) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

Held: Decision under review set aside

The Tribunal found that based on the photographs of the site visit report and in absence of any other information to the contrary, it was unable to make any finding that the primary visa applicant’s claims were not genuine. It found the photographic evidence pointed strongly to the genuineness of the claims made by the applicants. The Tribunal found that the statement of ‘A non-genuine referral outcome. See below for photos’ was not supported by the attached photographs. It also found that if there was any other evidence, deductions or findings from the site visit, it would expect such evidence to be on the Departmental file, and there was no such evidence on the file at all. Based on the evidence before it, the Tribunal found that the primary visa applicant was at all relevant times a cook at Fuzhou Gulou Huangqi Seafood Restaurant as claimed. Accordingly, the Tribunal found that the applicant met the requirements in cl.457.223(4)(d) for the grant of the visa.

071576466

7 August 2008, Melbourne

Mrs Rosa Gagliardi, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) VISA – SUBCLASS 457 (BUSINESS (LONG STAY)) – CL.457.223(4)(d) and (e) – EMPLOYMENT BACKGROUND AND PERSONAL ATTRIBUTES - SKILLS - A delegate of the Minister of Immigration and Citizenship refused to grant the visa applicant a Subclass 457 visa on the basis that he did not satisfy cl.457.223(4)(d) & (e) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate considered the applicant did not have the required employment background and amount of experience relevant to and consistent with the role of a cook. In particular, the delegate found the document he provided as a reference from Fuzhou Phoenix Hotel, where he claimed to have worked for 4 years was ‘non-genuine’ based on evidence gathered from a site visit by Departmental officers.

Held: Decision under review set aside.

The Tribunal found on the evidence that the Departmental officers conducting the site visit attended the 10th floor of the hotel, whereas evidence suggested that the applicant worked on the third floor. While persons on the 10th floor did not know the applicant’s name, several others were aware of him as the ‘fat guy’ who wanted to work overseas. In light of the evidence submitted to demonstrate that the applicant had worked as a cook, the Tribunal placed diminished weight on the conclusions arrived at by the Departmental officers. The Tribunal accepted evidence provided by the applicant, including payslips from 2005 to 2008, verbal testimony from his immediate employer at Fuzhou Phoenix Hotel, his qualifications, and the fact that he was awarded a prize for carving in 2002. On balance, the Tribunal accepted that the applicant has had at least 3 years experience as a cook, and that he had the personal attributes and employment background necessary to perform as a cook. It was therefore satisfied that that applicant met cl.457.223(4)(d) and (e).

0802721
30 July 2008, Adelaide
Ms D Morgan, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) VISA – SUBCLASS 457 (BUSINESS (LONG STAY)) – CL.457.223(4)(d) – PERSONAL ATTRIBUTES – EMPLOYMENT BACKGROUND – COOK – A delegate of the Minister for Immigration and Citizenship refused to grant the visa applicant a Subclass 457 visa because he did not satisfy cl.457.223(4)(d) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that he had personal attributes and an employment background relevant to his proposed employment as a cook. The delegate found that the applicant had given incorrect information concerning his employment at a restaurant in New Delhi following a site visit by Departmental officers who investigated his claims. The applicant submitted that his former manager did not remember him because he worked during the evening shift and would not recognise a photograph since his appearance had changed. The applicant provided evidence at hearing from the manager that he had worked as a trainee but never directly below him and evidence that he planned menus and discussed daily supply needs as a sous-chef.

Held: Decision under review set aside

The Tribunal accepted the applicant’s oral evidence, finding it to be consistent with his prior claims. The manager’s statement was given significant weight since it corroborated the applicant’s claim that he had worked as a restaurant chef. The evidence provided at review therefore satisfied the Tribunal that he had worked as a sous-chef at a New Delhi restaurant for approximately four years following an initial training period of around six months. Furthermore, the Tribunal found that the applicant worked in Australia as the cook in charge of a restaurant for approximately one and a half years. The Tribunal was satisfied that the applicant had an employment background and personal attributes relevant to and consistent with the occupation of cook for which he had been sponsored. Accordingly, it found that the applicant satisfied cl.457.223(4)(d).

071860978

19 June 2008, Sydney

Ms S Pinto, Member

STANDARD BUSINESS SPONSORSHIP – R.1.20D(2)(c)(ii) – TRAINING – A delegate of the Minister for Immigration and Citizenship refused to approve the applicant as a Standard Business Sponsor on the basis that the applicant did not have a satisfactory record or demonstrated commitment towards training Australian citizens and permanent residents in accordance with r.1.20D(2)(c)(ii) of the Migration Regulations 1994 (the Regulations). The delegate found that the documents provided by the applicant did not adequately explain the training activities undertaken. The applicant’s business imported cars from Japan which were not available anywhere else in Australia. He claimed the cars had to be modified to meet strict Australian standards. It was claimed the applicant employed a Consultant to educate staff in the specific requirements for each vehicle and gave staff Occupational Health & Safety training. The applicant also provided other documentation relating to the business.

Held: Decision under review set aside.

The Tribunal found the applicant’s evidence detailed and consistent. It found regulatory requirements for vehicle modification to ensure compliance with Australian safety standards were complex and required intensive training and supervision. The evidence established to the Tribunal’s satisfaction that regular in-house or in-service training was undertaken and the applicant had committed considerable financial resources to training. The Tribunal was therefore satisfied the applicant had a satisfactory record of training Australian citizens and permanent residents in accordance with r.1.20D(2)(c)(ii). The Tribunal was further satisfied that the applicant met all other requirements in r.1.20D for approval as a standard business sponsor.

0800092

23 May 2008, Melbourne

Ms R Gagliardi, Member

BUSINESS (LONG STAY) (CLASS UC) VISA – SUBCLASS 457 – VISA CANCELLATION – S.116(1)(a) – TERMINATION OF EMPLOYMENT – A delegate of the Minister for Immigration and Citizenship cancelled the applicant’s visa under s.116 of the Migration Act 1958 (the Act) because circumstances permitting the visa grant no longer existed. The applicant’s employment as a boilermaker had been terminated after he allegedly assaulted a work colleague. By leaving the sponsor in relation to which his visa was granted, the delegate concluded that condition 8107 was breached and cl.457.223(4)(i) of Schedule 2 to the Migration Regulations 1994 was no longer satisfied. The applicant submitted to the Tribunal that his visa should not be cancelled, referred to character references and prior Tribunal decisions and claimed that he, his spouse and son would suffer social and economic hardship in their country of origin.

Held: Decision under review affirmed

The Tribunal was satisfied that circumstances permitting the grant of his visa no longer existed and the ground for cancellation in s.116(1)(a) of the Act was made out. It noted that the applicant had been dismissed even though he had not instigated the altercation or been charged. The applicant had been unable to acquire a new sponsor and may find it difficult to obtain employment notwithstanding an industry shortage. In terms of the extent of the breach, the Tribunal accepted that his workplace behaviour could have been potentially dangerous but on the basis of character references found he would not ordinarily resort to physical violence. The Tribunal also considered the degree of hardship that may be caused to him and his family members in South Africa. The Tribunal took into account submissions that cases had been remitted where similar circumstances have applied but noted that the Tribunal is required to assess each case on its merits. Considering the circumstances as a whole, the Tribunal concluded that the applicant’s visa should be cancelled.

071337596

24 April 2008, Melbourne

Mr P Fisher, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) VISA – SUBCLASS 457 –CL.457.223 – S.140D – SPONSORSHIP BY AN APPROVED SPONSOR – A delegate of the Minister for Immigration and Citizenship refused to grant the visa applicant a Temporary Business Entry (Class UC) Subclass 457 visa on the basis that he did not satisfy cl.457.224 of the Migration Regulations 1994 (the Regulations). The delegate found that the applicant did not satisfy Public Interest Criteria (PIC) 4014 because the visa application was made not less than three years after he had last departed Australia as an unlawful non-citizen and none of the prescribed grounds for waiving that period existed. The visa applicant had nominated the position of Building Associate and made claims on the basis of sponsorship for employment by an Australian business.

Held: Decision under review affirmed

The Tribunal considered it unnecessary to determine whether compelling circumstances existed for the purposes of waiving PIC 4014 in view of other developments arising during the review. The Tribunal was not satisfied that the visa applicant continued to be sponsored by an approved sponsor at the time of the decision under s.140D of the Migration Act 1958. This visa applicant gave evidence that the managing director, who had sponsored the visa applicant on behalf of the Australian business, was no longer the managing director and had been barred from holding a directorship for 5 years. Although he had submitted a statutory declaration to the Tribunal, it was only in his capacity as a shareholder of the company and the Tribunal did not accept that a shareholder could ordinarily make undertakings on behalf of a company. The Tribunal requested, but did not receive, written confirmation from an office bearer of the company that it was continuing to sponsor the visa applicant. The Tribunal therefore found that the applicant did not meet cl.457.223(4). As the Tribunal was unable to conclude on the basis of the available evidence that the visa applicant satisfied any alternative criterion, it found that the visa applicant did not satisfy cl.457.223 of the Regulations for the purposes of the grant of the visa.

071584595

8 April 2008, Sydney

Ms J Ciantar, Member

CULTURAL/SOCIAL (TEMPORARY) (CLASS TE) – SUBCLASS 421 (SPORT) – HOLDER OF A SUBCLASS 421 (SPORT) VISA – CL.421.222 – CL.421.230 – A delegate of the Minister for Immigration and Citizenship refused to grant the applicant a Subclass 421 visa on the basis that he did not meet the requirements of cl.421.222(4) of Schedule 2 to the Migration Regulations 1994 (the Regulations) as the delegate was not satisfied that the sponsor had good financial status in Australia. The applicant provided evidence that he trains 6 days per week at the Elouera Tony Mundine Gym and regularly participates in boxing events. The Gym, which is part of the Aboriginal Housing Company, agreed to sponsor the applicant. Evidence was also produced that the applicant lives with a friend rent free and receives financial assistance from friends and the Gym. The applicant provided his return ticket to Papua New Guinea and financial statements from the Aboriginal Housing Company.

Held: Decision under review set aside

The Tribunal found that the applicant was not required to meet the criteria in clause 421.222, as at the time of application, the applicant was in Australia and the holder of a subclass 421 visa. The Tribunal accepted the applicant’s evidence that he trains at the Gym 6 days per week, as a boxer and he regularly participates in sporting events. The Tribunal was also satisfied that he received financial assistance from friends and the Gym. It was satisfied that he had a return ticket to Papua New Guinea when he arrived in Australia, at the time of his application and at the time of the Tribunal’s decision. Therefore the Tribunal was satisfied that the applicant met cl.421.230, as there was no reason to believe that the applicant did not continue to satisfy the primary criteria for the grant of the visa. In the alternative, if the applicant was required to meet cl.421.222, he would satisfy cl.421.222(2) as the Tribunal was satisfied that the applicant had been entered to compete in a sporting event in Australia, that he had sufficient money for his personal support and was in possession of travel tickets to a destination in a foreign country.

071856077

24 March 2008, Sydney

Mr G Short, Senior Member

BUSINESS SPONSORSHIP – S.140L – SPONSORSHIP APPROVAL BAR - R.1.20CB(1)(e) - BREACH OF UNDERTAKINGS – MINIMUM GAZETTED SALARY – NOMINATED OCCUPATION – A delegate of the Minister for Immigration and Citizenship decided to bar the applicant business as a sponsor under s.140J(2) of the Migration Act 1958 (the Act). The delegate found the applicant had breached its undertakings under to s.140H of the Act and r.1.20CB of the Migration Regulations 1994. These undertakings were to ensure that sponsored persons were paid at least the gazetted minimum salary, not to employ persons in breach of Australian immigration law and to notify the Department of any changed circumstances affecting the business’ capacity to honour its sponsorship undertakings or contributing to its approval as a sponsor or of a nomination. The delegate decided to bar the applicant from sponsoring additional individuals under existing approvals and, for two years, from making future applications for sponsorship approval or nominating persons or activities in relation to Subclass 457 (Business (Long Stay)) visas.

Held: Decision under review set aside

The Tribunal found that the applicant had breached its undertaking to ensure that sponsored employees would be paid at least the gazetted minimum salary. It found that the applicant paid wages to sponsored employees based on actual hours worked during pay periods and not a ‘salary’ which, although undefined under the Act and Regulations, ordinarily meant a fixed payment made by employers at regular intervals. The Tribunal also found that the applicant had breached its undertaking not to employ persons contrary to Australian immigration law. Condition 8107 attached to the visas of the applicant’s sponsored employees prohibited them from working in a position or occupation inconsistent with the nominated position of Residential Care Officer. This involved providing care and supervision for children or disabled persons in group housing or government institutions. However, the position or occupation in which the sponsored employees were being employed most closely corresponded to that of Personal Care or Nursing Assistants, who assist with patient care in a range of health care facilities or in the client’s own home. The Tribunal found that the applicant breached its undertaking to notify the Department of a change of information relevant to approval of nominations. However, the Tribunal decided not to take any action under s.140L of the Act, having regard to the severity of the breaches and the applicant’s past conduct as required by r.1.20HA. The applicant did not deliberately flout its undertakings, the breaches were different from those alleged and the Department was aware of the nature of the work in which the sponsored employees were to be engaged at the time it approved the sponsorships and nominations. The Tribunal considered that the correct and preferable decision in the circumstances was to set aside the decision imposing a sponsorship bar on the applicant.

071937249

19 March 2008, Melbourne

Ms R Gagliardi, Member

BUSINESS SPONSORSHIP – s.140L - SPONSORSHIP APPROVAL BAR – R.1.20CB(1)(e) – BREACH OF UNDERTAKINGS – COOPERATE WITH DEPARTMENT MONITORING – A delegate of the Minister for Immigration and Citizenship barred the applicant under s.140J of the Migration Act 1958 (the Act) for a period of 12 months from making future applications for approval as a standard business sponsor in regard to Subclass 457 visas. Regulation 1.20CB(1)(e) of the Migration Regulations 1994 required the applicant to undertake to cooperate with the Department’s monitoring of the applicant and the sponsored employee. The applicant failed to submit Monitoring Form 1110 to the Department. The delegate found that this failure was a breach of the undertaking in r.1.20CB(1)(e). The applicant declined to attend a Tribunal hearing and did not respond to the Tribunal’s requests for further information.

Held: Decision under review affirmed

The Tribunal found that the applicant had consistently refrained from engaging with either the Department or the Tribunal to provide an explanation as to why the applicant had failed to submit Monitoring Form 1110 to the Department as required by r.1.20CB(1)(e). The Tribunal noted that the bar imposed was at the lower end of the 6 months to 5 years scale of possible sanctions. The Tribunal found that the sanction was appropriate and reasonable given the applicant had had several opportunities to return the monitoring form to the Department. The Tribunal held that a breach of the undertaking to cooperate with Department monitoring was a serious breach because it impeded the Department’s ability to assess the applicant’s compliance with other undertakings.

071550885

8 February 2008, Perth

Ms L Ward, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) VISA – SUBCLASS 457 – VISA CANCELLATION – CONDITION 8107 – CESSATION OF EMPLOYMENT – A delegate of the Minister for Immigration and Citizenship cancelled the applicant’s Subclass 457 (Business (Long Stay)) visa under s.116(1)(b) of the Migration Act 1958 (the Act) on the basis of non-compliance with a condition of his visa, namely condition 8107 of Schedule 8 to the Migration Regulations 1994 (the Regulations). Condition 8107 required that, where a visa is granted to enable a visa holder to be employed in Australia, the holder must not cease to be employed by the employer in relation to which the visa was granted. The delegate determined that the applicant had ceased to be employed by his sponsoring employer after two years of employment. Before the Tribunal the applicant claimed to have resigned due to stress arising from workplace issues. These issues including cultural differences with other staff left unresolved by management.

Held: Decision under review set aside.

The Tribunal noted that the applicant had ceased to be employed by the employer in relation to which his visa had been granted. It therefore found that the applicant had not complied with condition 8107 of his visa. As such the Tribunal was satisfied that the ground for cancellation existed under s.116(1)(b) of the Act. In exercising its discretion whether or not to cancel the visa, the Tribunal observed that there were no issues concerning the applicant’s quality of work. It further noted that the applicant had cooperated with the Department of Immigration and Citizenship. The Tribunal accepted that, in a context where an employer could jeopardise an applicant’s visa application, the treatment to which the applicant had been subject had left him stressed and vulnerable. In assessing the hardship of cancelling the visa on family members the Tribunal noted that Migration Series Instruction 368 identified the effect on children as a primary consideration. The Tribunal concluded that the applicant’s two children would be best served by continuing their education in Australia. On balance it found that the applicant should remain in Australia to minimise disruption to his children. Accordingly the Tribunal substituted a decision that the applicant’s visa not be cancelled.

071658571
8 February 2008, Sydney
Mr S Roushan, Member

CULTURAL/SOCIAL (TEMPORARY) (CLASS TE) – SUBCLASS 428 – VISA CANCELLATION – CONDITION 8107 – CESSATION OF EMPLOYMENT– A delegate of the Minister for Immigration and Citizenship cancelled the applicant’s Subclass 428 (Religious Worker) visa under s.116(1)(b) of the Migration Act 1958 (the Act) on the basis of non-compliance with a condition of her visa. Condition 8107 of Schedule 8 to the Migration Regulations 1994 required that, where a visa is granted to enable a visa holder to be employed in Australia, the holder must not cease to be employed by the employer in relation to which the visa was granted. The applicant claimed that she left her position at the Chinese Korean Church (CKC) because she was underpaid and her appointment was removed without explanation. She claimed that she was ignored and insulted by CKC as she was threatened with visa cancellation. The applicant claimed that she was ignorant about condition 8107 and worked for another Church as an Assistant Pastor after her resignation. The applicant also claimed that both her children were studying in Australia and cancellation of their visas would cause them enormous difficulties.

Held: Decision under review affirmed.

The Tribunal noted that the applicant had not disputed that she resigned from CKC and had stated she was ignorant of the requirements of condition 8107. As such it found that she had breached condition 8107(a)(i). For this reason the Tribunal was satisfied that the ground of cancellation in s.116(1)(b) of the Act existed. In considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal had regard to relevant circumstances including those set out in Migration Series Instruction 368. The Tribunal noted the applicant’s evidence that she came to Australia in 2001 to further her children’s education. In its view, the purpose of the applicant’s travel and stay in Australia was not consistent with the purpose of the visa which was the subject of cancellation. The Tribunal accepted the applicant’s reasons for leaving her position at CKC, but noted she took no steps to notify the Department of Immigration and Citizenship of her changed circumstances. It was empathetic to the fact that cancellation of the applicant’s visa would mean the applicant’s children would have to return to Korea which could result in some hardship. However, it found none of these factors amounted to significant hardship as the applicant’s children were 20 and 22 years of age. It also found that, while the applicant would not be in a good financial situation as she had sold all her Korean assets and spent all her savings while living in Australia, there was nothing before the Tribunal to suggest she would be unable to engage in employment to support herself. The Tribunal concluded that considering all the circumstances as a whole the visa should be cancelled.

071709252

31 January 2008, Melbourne

Ms L Spieler, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 – VISA REFUSAL – CL.457.224 – PIC 4014 – A delegate of the Minister for Immigration and Citizenship refused to grant the visa applicant a Subclass 457 (Business (Long Stay)) visa on the basis that the applicant did not satisfy cl.457.224 of Schedule 2 of the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the applicant met the requirements of Public Interest Criterion (PIC) 4014, which required that, where an applicant has had a visa cancelled, the application for a new visa must be made more than three years after departure from Australia. The delegate found a previous subclass 457 visa had been cancelled so the visa applicant was subject to the exclusion period. The applicant had last departed Australia only two and a half years before the new visa application was lodged. The delegate further found that there were no compassionate or compelling circumstances justifying a waiver. The review applicant submitted to the Tribunal that the visa applicant had previously been employed by his business as head chef. His business was now experiencing extreme financial pressure, in part, because he had been unable to find a suitable replacement for the visa applicant.

Held: Decision under review affirmed.

The Tribunal accepted that where a business operated by an Australian citizen has to close down that may constitute compassionate or compelling circumstances affecting the interests of an Australian citizen. However, the Tribunal considered the review applicant’s claims as to the visa applicant’s role in the business exaggerated. In any event, it found the business had suffered substantial losses during the period of the visa applicant’s claimed previous employment. The Tribunal further found that the review applicant had not provided a satisfactory explanation of how the visa applicant’s presence would overcome the business’s financial difficulties. As such, it was not satisfied that the circumstances affecting the review applicant’s business interests were compelling such as to justify waiver of the three year exclusion period.

071636603

21 January 2008, Melbourne

Ms R Gagliardi, Member

BUSINESS – TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 – VISA CANCELLATION – S.116(1)(a) – CL.457.223(4)(f) – CIRCUMSTANCES FOR GRANT OF THE VISA NO LONGER EXIST – A delegate of the Minister for Immigration and Citizenship cancelled the applicants’ Subclass 457 (Business (Long Stay)) visas under s.116(1)(a) of the Migration Act 1958 (the Act). The delegate found the primary applicant no longer met cl.457.223(4)(f) of the Migration Regulations 1994 (the Regulations) which required him to be paid at the level specified in the nomination and meet the minimum salary level. Evidence indicated that the applicant’s nominated sponsor failed to pay him at the required level and had since withdrawn the sponsorship. The applicant asked the Tribunal to consider compassionate grounds on the basis that he was the victim of his former sponsor’s inappropriate employment practices.

Held: Decision under review affirmed.

The Tribunal found that cl.457.223(4)(f) of the Regulations was not met by the applicant because the Tribunal was not satisfied that the applicant would be paid at the level specified in the nomination and meet the minimum salary level. It found the former sponsor had withdrawn his sponsorship and at the time of the decision the applicant had not secured further sponsorship by which he would have met cl.457.223(4)(b)(i) of the Regulations. The Tribunal accepted that the applicant’s former sponsor had acted inappropriately by failing to pay him properly for his work. However, it found its role was limited to determining whether the applicant satisfied the criteria for the re-instatement of the relevant visa and it did not have any discretion to set aside this matter on compassionate grounds.

071085935

16 January 2008, Sydney

H Wyndham, Member

BUSINESS – TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 – CL.457.223(4) – VISA REFUSAL – PERSONAL ATTRIBUTES AND EMPLOYMENT BACKGROUND – A delegate of the Minister for Immigration and Citizenship refused to grant the visa applicant a subclass 457 (Business (Long Stay)) visa on the basis that he did not satisfy cl.457.223(4)(d) the Migration Regulations 1994 (the Regulations). The issue before the Tribunal was whether the applicant’s personal attributes and employment background were relevant to, and consistent with, the nature of the activity to be performed in Australia. The review applicant was approved to sponsor the visa applicant as a chef (Cook ASCO Code 4513-11). The review applicant claimed before the Tribunal that in his view the visa applicant was a senior chef and had been chosen for the position because he was capable of carrying out the duties of a highly experienced and skilled cook.

Held: Decision under review affirmed.

The Tribunal found the visa applicant did not have any formal training or certification to be a chef. It noted that, in the absence of formal training and certification of a person’s skill level, several years practical experience at the level may be considered sufficient to satisfy the skills requirement. However, based in part on evidence from the Australian Embassy, it held that, although the visa applicant had done some work in restaurants from time to time, he did not have the skill level required to fill the position for which sponsorship was approved. The Tribunal was therefore not satisfied that the applicant met cl.457.223(4)(d) of the Regulations. The Tribunal further considered whether the position to be filled by the visa applicant was created only for the purposes of securing entry to Australia. In light of the history of the matter and manner in which the application had been pursued it was not satisfied the visa applicant satisfied cl.457.223(4)(h) of the Regulations.

Australian Immigration Appeals: Business & Skills Visas 2008

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Business and Skilled Visas 2008

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