MIGRATION REVIEW TRIBUNAL DECISIONS
Australian Business and Skilled Visas
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Australian Immigration: Employer Sponsorship Visas - Permanent
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Skilled Visas
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Employer Sponsorship Visas - Permanent
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Other Related Appeals Articles
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.
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.
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.
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.
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).
Precis, The MRT-RRT Monthlthy Decisions Bulletin, Migration Refugee Tribunal - Refugee Tribunal, 2 February 2009, copyright Commonwealth of Australia reproduced by permission.
