Australian Immigration - Business and Skilled Visas

Migration Review Tribunal Decision Summaries

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• Australian Immigration: Related Appeals Articles

Australian Skilled Visas

0909362
5 October 2010, Sydney
Ms D Dimitriadis, Member

SKILLED (MIGRANT) (CLASS VE) – SUBCLASS 176 – SKILLED - SPONSORED – CL.176.211 – ASCO REQUIREMENTS – ENGLISH AS A SECOND LANGUAGE TEACHER – A delegate of the Minister refused to grant the applicant a Subclass 176 visa, on the basis that the delegate was not satisfied that the visa applicant had been employed in a skilled occupation for at least 12 months in the 24 month period ending immediately before the day on which the application was made. The visa applicant was sponsored by his father, a Professor (the review applicant), who was an Australian citizen. The review applicant claimed that the visa applicant had taught English language classes for approximately ten years in Taipei and Australia. The visa applicant advised that his past employment was as an English teacher at ELSI/Kojen English Language School in Taipei from 2001 to 2005 and May 2006 to the “present” (June 2009). In a letter, the Academic Director of Kojen English Language School, Taipei, claimed that the visa applicant‟s principal role was to teach adults and children conversational English, 20 hours per week of reading, writing, speaking and listening. He further claimed that the visa applicant created his own source material, attended numerous workshops, provided advice in staff meetings and trained new teachers. A Skills Assessment Certificate issued in 2009 by Teaching Australia stated that the visa applicant had been assessed as suitable for the nominated occupation of Secondary School Teacher (ASCO 2413-11).

The review applicant claimed that the visa applicant taught within a prescribed secondary school curriculum and promoted students‟ social, emotional, intellectual and physical development. He claimed that the visa applicant undertook a number of activities at the school which were co-extensive with those in the ASCO Code, that he met the entry level requirements for a Secondary School teacher, and that the visa applicant‟s qualifications were assessed in Australia and were found to be equivalent. He further claimed that the delegate had taken a narrow view in applying the template for a Secondary School Teacher to the evidence. The review applicant claimed that although the visa applicant worked in a language school, he went far beyond what was required of a language teacher. The visa applicant claimed he had been accredited to teach overseas and that, at Kojen School, the fundamentals of writing, reading, skills and techniques, pronunciation and grammar were the bedrock.

The review applicant provided a submission in which he stated that the refusal of the visa had had a significant effect on the visa applicant to pursue a teaching career in Australia and to be reunited with his parents, who were Australian citizens. He also stated that the visa applicant had met the entry level requirements for the occupation and he had a Bachelor of Arts majoring in English and History, and a Bachelor of Laws and a Higher Diploma in Education. His qualifications were assessed by Teaching Australia and found to be equivalent. He claimed the visa applicant had the qualifications and capacity to function as a Secondary School Teacher.

Held: Decision under review affirmed.

The Tribunal noted that the ASCO Code was a guide to the requirements for different occupations, and it accepted that the visa applicant had undertaken 9 of the 10 tasks included in the ASCO Code 2413-11 for a Secondary School Teacher. The Tribunal was not satisfied that the visa applicant co-ordinated teaching in a particular subject area or that he assisted with sporting activities. The Tribunal found that the visa applicant‟s duties fell within the sets of tasks listed in ASCO Code 2413-11 for a Secondary School Teacher, and ASCO Code 2492-11 for an English as a Second Language Teacher. The lead statement for an „English as a Second Language Teacher‟ is that a person teaches special classes in English to students whose first language is not English, whereas the lead statement in ASCO Code 2413-11 for a „Secondary School Teacher‟ is that a person teaches one or more subjects within a prescribed curriculum to secondary school students and promotes students' social, emotional, intellectual and physical development. The Tribunal found that although the visa applicant performed all of these tasks and duties, it was not satisfied that he had been employed at Kojen School as a Secondary School Teacher. The Tribunal found that the Kojen School was not a secondary school, rather, that it was a language school.

The Tribunal considered the visa applicant‟s statement that he taught children between the ages of 7-8 years old and 16 years old, and the review applicant‟s submission that if he taught pupils who were secondary school pupils, it followed that he was a „Secondary School Teacher‟. However, the Tribunal did not accept this statement. The Tribunal was not satisfied that the visa applicant‟s occupation was to teach English within a prescribed curriculum to secondary school students and to promote students' social, emotional, intellectual and physical development. Although some of the tasks and duties of the „Secondary School Teacher‟ and the „English as a Second Language Teacher‟ were similar, the Tribunal was not satisfied that the visa applicant had been employed as a Secondary School Teacher at Kojen School.

Accordingly, the Tribunal was not satisfied that the visa applicant had been employed in the skilled occupation of „Secondary School Teacher‟ for at least 12 months in the period of 24 months ending immediately before the day on which the application was made. Therefore, the Tribunal found that the visa applicant did not satisfy cl.176.211 of the Regulations.

0901871
1 September 2010, Melbourne
Mr D Young, Member

SKILLED (RESIDENCE) (CLASS VB) – SUBCLASS 885 – CL.885.213(b) – IELTS TEST – IDENTITY – A delegate of the Minister was not satisfied that the Australian immigration visa applicant met cl.885.213 of the Regulations, as the delegate found that the person who had undertaken the IELTS test, and whose photograph was scanned onto the score sheet, was not the applicant. The Australian immigration visa applicant claimed that the IELTS test administration procedures left little room for deception or fraud and that the two photographs presented to the IELTS centre both depicted him. He claimed that the photograph scanned onto the test results sheet was taken 3 years before his passport photograph and that in the meantime he had gained weight, lost some hair, changed his hairstyle, and he hadn‟t worn glasses in the latter photograph because the photographer asked him to remove them due to the lenses reflecting the studio flashlight. He also claimed the test centre staff were all Anglo-Australians and may have had difficulty telling Indians apart. The applicant produced a witness at the Tribunal hearing who was a fellow student and who claimed that he was present at the same IELTS test session where he saw the applicant.

Held: Decision under review affirmed.

The Tribunal noted that the Australian immigration visa applicant produced a witness at the hearing who had a similar appearance to himself. As to his similar hairstyle, the witness claimed it was common for young people to mimic the local style. The witness and the Australian immigration visa applicant disputed the Tribunal‟s suggestion that had deliberately contrived to look similar, but different from their respective passport photographs, in order to raise doubts in the Tribunal‟s mind about the reliability of the photographic evidence, or its own capacity to tell Indian people apart.

The Tribunal did not dispute the IELTS test results, however it questioned whether it was the applicant who had obtained them. The Tribunal noted that there was no claim that the IELTS test centre photograph was incorrectly scanned onto the applicant‟s score sheet, nor that there was an administrative error. The Tribunal was satisfied that the person depicted in the Australian immigration visa applicant‟s IELTS test results photograph was not the applicant, whose likeness had been well-captured in his passport photograph. The Tribunal found that there were multiple significant differences between the people in the photos which were manifestly obvious, even to the untrained eye, and which did not generally change. The Tribunal‟s observations were consistent with. the expert testimony of the Department‟s document examiner, and use of specialised facial recognition and matching software. The Tribunal rejected the claim that the applicant was asked to remove his glasses for the latter passport photograph, and noted that passport holders who normally wear visual aids were required to do so in these photos. The Tribunal also noted that the  Australian immigration visa applicant did not explain why he provided the IELTS centre with an old photograph in circumstances where identity might be an issue. The Tribunal was aware of fraud at the IELTS test centre in recent years, and was prepared to countenance the possibility of human error, or even malfeasance, by test centre staff not sensitive to differences in facial features of Indian people. However, the Tribunal considered it was not its task to speculate on the actions or decisions of IELTS test centre staff, but to determine whether the two photographs depicted the applicant on two occasions, three years apart. The Tribunal was satisfied that they did not. Accordingly, the Tribunal found that the applicant did not satisfy cl.886.213 of the Regulation and the decision under review was affirmed.

0901644
5 August 2010, Sydney
Ms J Ciantar, Member

SKILLED (RESIDENCE) (CLASS VB) – SECONDARY APPLICANT – CL.885.215 – ARRANGEMENTS TO UNDERGO MEDICAL EXAMINATION – A delegate of the Minister refused to grant the Australian immigration visa applicants Skilled (Residence) visas on the basis that evidence was not provided at the time of application that arrangements had been made for the infant, Nusaiba Alam, to undergo a medical examination. The Australian immigration visa application was made by the parents of Nusaiba Alam. Nusaiba Alam was born on 26 February 2008 and the  Australian visa application was lodged on 25 March 2008 with a letter from Westmead Hospital containing information from medical records of Nusaiba Alam. The letter advised that the child had completed a post natal medical assessment at Westmead Hospital on 27 February 2008 and she that had met all the medical standards.

The Tribunal wrote to the Australian immigration visa applicants inviting them to provide evidence that the Australian visa application, which was lodged on 27 March 2008, was accompanied by evidence that arrangements had been made for Nusaiba Alam to undergo a medical examination. The applicants responded by referring the Tribunal to the High Court decision of Berenguel v MIAC [2010] involving applicants for Subclass 485 visas where the matter was remitted by consent as a consequence of the Berenguel decision. The applicants submitted that while this decision related to the requirements concerning IELTS, the same principle applied in relation to the medical requirement. If that was accepted, the fact that the child had undertaken the medical examination, should resolve the matter.

The Australian immigration visa applicants appeared before the Tribunal and gave evidence that their previous representative had advised them that as their baby was only four weeks old at the time of application, it was only necessary to provide the baby’s birth certificate and passport. Although the Department had asked for a medical assessment, they claimed their previous representative had advised them that sufficient information had been provided. Following the refusal of the visa application, the Australian immigration visa applicants changed representatives. The applicants claimed that their baby had since been assessed by HSA and had received a positive assessment. On 10 June 2010, the applicants provided the Tribunal with receipts that showed that Nusaiba Alam undertook a medical examination on 28 October 2008.

Held: Decision under review affirmed.

The issue was whether evidence had been provided with the Australian visa application that each applicant had made arrangements to undergo a medical examination for the purpose of the application. The Tribunal accepted that Nusaiba Alam had undertaken a post-natal medical assessment at Westmead Hospital on 27 February 2008 and that she met all the medical standards. However, this examination was performed the day after Nusaiba Alam was born and the Tribunal was of the view that this assessment was routine for newborn children. The Tribunal was not satisfied that the arrangements to undergo the assessment were made for the purpose of the visa application or that evidence of the arrangements to undergo this assessment had accompanied the visa application.

The Tribunal accepted that Nusaiba Alam undertook a further medical examination on 28 October 2008 with Health Services Australia for the purpose of the Australian visa application. However, as this evidence was provided to the Tribunal on 10 June 2010, the Tribunal was not satisfied that this evidence accompanied the visa application. The Tribunal considered the applicants’ submissions but it was of the view that the decision in Berenguel did not apply to cl.885.215. In Berenguel the Court distinguished between cl.885.213, which was the regulation at issue, and cl.885.215, which the Court cited as a contrasting regulation that required the visa application to be accompanied by specific evidence.

The Tribunal referred this matter for Ministerial consideration as it considered the outcome in this case was unduly harsh as the Australian immigration visa applicants all met the public interest criteria and it was only the failure to provide evidence of arrangements with the Australian visa application in respect of a new born baby which led to the application being refused. The failure to provide evidence with the Australian visa application was because she was born only a month prior to the lodgement and also because the applicants received incorrect advice from their previous agent. The Tribunal noted the first named applicant’s IELTS results, his nominated occupation, educational qualifications, age and employment history and concluded that there was no evidence that he would not have achieved the required score in the points test at the time of application. The Tribunal also noted that the first-named applicant had nominated the occupation of cook, which was no longer an occupation in demand. However, the first named applicant had worked in this occupation since completing his course and appeared committed to continuing to do so. For these reasons, the Tribunal considered that the matter should be referred to the Minister of Immigration and Citizenship for his consideration. Accordingly, the Tribunal found the applicants did not satisfy the requirements of cl.885.215 of the Regulations.

0901106
29 July 2010, Melbourne
Ms R Gagliardi, Member

SKILLED (MIGRANT) (CLASS BQ) – AUSTRALIAN SPONSORED – CL.138.216 – CAP REACHED – A delegate of the Minister refused to grant the Australian immigration visa applicant a Skilled - Australian Sponsored (Migrant) (Class BQ) visa on the basis that the number of visas granted for this class of visa had reached the cap imposed by legislative instrument IMMI 10/023.

The Australian immigration visa application was made on 29 August 2007. The delegate decided to refuse to grant the visas on 28 November 2008 on the basis that the first-named visa applicant did not satisfy cl.138.216 of the Regulations as the delegate was not satisfied that the  Australian immigration visa applicant had performed the duties required to satisfy the work experience requirement within the relevant time frame. The review applicant applied to the Tribunal on 17 February 2009 for review of the delegate’s decisions.

Held: Decision under review set aside and substituted with a decision that the Tribunal had no jurisdiction in relation to this visa application.

The Tribunal found that the Minister, by legislative instrument IMMI 10/023, ‘Determination of the Maximum Number of Certain Skilled Visas that may be granted in the 2009-10 Financial Year’ fixed the number of visas that could be granted in the 2009-10 financial year of the Skilled - Australian-sponsored (Migrant) (Class BQ) visa class at 546. On the advice of the Department, the Tribunal found that this figure had been reached. Accordingly, any outstanding applications for the grant of visas of this class were taken not to have been made. Therefore, as the visa application currently under review was taken never to have been made, the Tribunal found that the Tribunal had no jurisdiction to consider the application.

Whilst the Tribunal was not able to make a decision on the merits of this case, the Tribunal observed that had the application not been subject to the cap, there was every likelihood that the decision would have been remitted as the evidence submitted by the visa applicant following the hearing was credible and the Tribunal had no reason to doubt the veracity of the claims being made by the  Australian immigration visa applicant. The evidence included extensive third-party statements corroborating the visa applicant’s claims as well as material concerning the visa applicant’s former workplace. Such material had not been available to the delegate to assist them in making a decision at the time of application. For these reasons, the Tribunal found that the applicant’s visa application was taken not to have been made and that the Tribunal had no power to consider it. Accordingly, the Tribunal set aside the decision refusing to grant a Skilled - Australian Sponsored (Migrant) (Class BQ) visa to the applicants and substituted a decision that the Australian visa application was taken not to have been made.

0900641
29 July 2010, Sydney
Ms K Raif, Member

SKILLED (PROVISIONAL) (CLASS VF) – SUBCLASS 475 – REGIONAL SPONSORED – PUBLIC INTEREST CRITERION 4005 – HEALTH – The delegate refused to grant the Australian immigration visa applicants Skilled (Provisional) visas as the second named applicant did not satisfy the health criteria in Public Interest Criterion (PIC) 4005. The Australian immigration visa applicants were sponsored by the visa applicant’s aunt (the review applicant).  The first named visa applicant was born in Ireland where she currently resides. She applied for a Skilled (Provisional) visa on 18 September 2007. Included in the application was the visa applicant’s defacto partner, the second named applicant. In order to be granted the visa, the applicants were required to undertake medical examinations. However, a Medical Officer of the Commonwealth (MOC) formed an opinion that the second named applicant did not meet the health requirements in PIC 4005. The MOC found that the second named applicant was a person diagnosed with Multiple Sclerosis in 2004 and that he immediately began preventive treatment and had been relapse-free since. His neurological examination was normal and he was fully independent. The MOC noted that the applicant’s prognosis appeared to be favourable with the use of Betaferon and that he would likely require this ongoing treatment, which represented a significant cost to the Australian community. The MOC also noted that this was consistent with the likely requirement for health care of a hypothetical person with the form and level of the condition suffered by the second named applicant. Based on the opinion of the MOC, the delegate found that the second named applicant did not meet PIC 4005 and the visa application was refused.

The Tribunal offered the applicant the opportunity to seek a review of his health by the Review Medical Officer of the Commonwealth (RMOC) and additional medical evidence was provided for the RMOC’s consideration. The Tribunal received an opinion from the RMOC indicating that the second named applicant did not meet the health requirement. The review applicant submitted to the Tribunal that the visa applicants do satisfy the health criteria as they would not subject the Australian community to any cost for the duration of their stay in Australia. She referred to the secondary visa applicant’s current condition and prognosis and to a number of reports which indicated that the second named applicant’s condition was in remission and not progressing. The review applicant noted that the visa applicants had arranged health cover and would also receive support from their relatives in Australia, noting that any cost to the Australian community would be minimal. The review applicant suggested that PIC 4005 had been met by the applicants and the application should be remitted because the cost to the Australian community would not arise due to the applicant not being eligible to make a claim for assistance, and that his medical condition was well managed. The applicants also informed the Tribunal that since their application was lodged, they had since married.

Held: Decision under review affirmed.

The Tribunal had regard to the Federal Court decisions in Robinson v MIMIA [2005] FCA 1626 and Ramlu v MIMIA [2005] FMCA 1735 and was of the view that there was no evidence that the RMOC had applied the wrong test in this matter. Specifically, the Tribunal was satisfied that the RMOC opinion identified the second named applicant’s condition to which the public interest criteria had been applied, had ascertained the form or level of the condition suffered by the visa applicant and had applied the statutory criteria by reference to a hypothetical person who suffered from that form or level of the condition. Accordingly, the Tribunal found that the secondary visa applicant had undertaken medical examinations and that a MOC found that he did not meet the health requirements in PIC 4005. Also, the RMOC had found that the secondary visa applicant did not meet PIC 4005.

As the Tribunal was bound to accept the final assessment of the RMOC to be correct for the purposes of deciding whether the second named applicant satisfied the relevant health criterion, the Tribunal found that the second named visa applicant did not satisfy public interest criterion 4005. Accordingly, the Tribunal found that the second named visa applicant was a member of the family unit of the visa applicant. He was also an applicant for a Subclass 475 visa. As he did not satisfy PIC 4005, the visa applicant did not meet cl.475.226. Accordingly, the Tribunal affirmed the decision not to grant the visa applicants Skilled (Provisional) (Class VF) visas.

0807011
1 July 2010, Melbourne
Ms J Ellis, Member

SKILLED (RESIDENCE) (CLASS VB) – SUBCLASS 886 – SPONSORED – CL.886.211(2) – COURSES CLOSELY RELATED TO NOMINATED SKILLED OCCUPATION – A delegate of the Minister refused to grant the applicant a Subclass 886 visa on the basis that the courses he had undertaken in Australia were not closely related to his nominated skilled occupation. The delegate noted the applicant’s nominated skilled occupation was “pastry cook” and found that the Diploma of Business he had completed and relied upon in meeting the two-year study requirement for the grant of the visa was not relevant to his assessed position. The applicant, who had completed a Certificate III in Food Processing (Retail Baking) and a Diploma of Business (Management) in Australia, provided a detailed submission in relation to the relevance of his Diploma of Business to the profession of a Pastry Cook. He claimed that “his main goal was to open his own excellent Pastry & Cake Shop” and that to do so successfully he would need good business skills. He listed some of the units that he had studied during the Diploma of Business and elaborated on how these courses would assist him in running a bakery business. The applicant gave similar evidence at the Tribunal hearing and stated that being a pastry cook was not just about producing a product; he needed to be able to sell the product as well. Additional evidence in support of the application was provided by the applicant’s representative. This evidence included documents confirming the applicant’s Australian qualifications and references to other cases whereby holders of similar qualifications had been successful in their visa applications. The evidence submitted on behalf of the applicant included reference to Departmental advice on the significance of “closely related” and an extract from the Departmental Procedures Advice Manual (PAM3).

Held: Decision under review set aside.

The Tribunal considered all the material before it and found the applicant to be a credible witness. The Tribunal accepted the applicant’s evidence that he intended to be employed as a pastry cook and that he wished to be self employed in that industry. The Tribunal referred to the relevant Departmental policy contained in PAM3 and found that the Diploma of Business that the applicant had undertaken was “sufficiently compatible” with the nominated skilled occupation of pastry cook, and that it did assist the applicant to be “job ready” for employment in the Australian labour market. The Tribunal also accepted that the skill set underpinning the Diploma of Business Management was complimentary to, and could be used in, the nominated occupation of pastry cook. In light of the above, the Tribunal found that both courses of study undertaken by the applicant in Australia (the Certificate III in Food Processing and the Diploma of Business Management) were “closely related” as required by cl.886.211(2)(b) to the applicant’s nominated skilled occupation of “pastry cook”. Accordingly, the Tribunal found that the applicant met the requirements of cl.886.211(2) of the Regulations.

0902411
12 May 2010, Melbourne
Ms D Buljan, Member

SKILLED (PROVISIONAL) – (CLASS VC) – SUBCLASS 485 – SKILLED GRADUATE – CL.485.214 – IELTS SKILLS ASSESSMENT NOT PROVIDED AT TIME OF APPLICATION – A delegate of the Minister refused to grant the visa applicant a Skilled Graduate visa as the delegate was not satisfied that the visa applicant had applied for an assessment of his English language skills for his nominated occupation at the time of lodgement of his visa application and, therefore, found that he did not meet clause 485.214. The visa applicant nominated the occupation of a ‘Computing Professional (not elsewhere classified)’ in the online visa application lodged on 30 July 2008. On 9 March 2009 he provided to the Department evidence that he had applied for an assessment from the Australian Computing Society on that date. As a result, the delegate found that the visa applicant had applied for his skills assessment more than 7 months after he lodged his visa application. The visa applicant’s representative advised the Tribunal that, through no fault of his own, the visa applicant was unable to apply for a skills assessment without his academic record and completion letter from the university because the Australian Computing Society would not accept such applications without these documents. Further, the representative contended that the education provider was under no obligation to provide such documents within a specified time. As a result, students were usually faced with a very confusing situation because they were required to lodge an application before their student visa expired, which is usually shortly after the completion of their course, but before they have been able to obtain some of the evidence required for the visa application. The representative further argued that the purpose of Subclass 485 visas was “…to allow 18 months temporary stay in Australia for applicants who have recently completed studies in Australia but need additional time to gain the skills required to apply for a permanent General Skilled Migration visa.” The representative also referred to the observations of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979). As a result, the visa applicant’s representative asked the Tribunal to consider the rights of an applicant who had lodged an application online and whether there was misleading information that led to the refusal of the visa application.

Held: Decision under review set aside.

The Tribunal considered the time of application criterion and the relevant case law at length. In considering the requirements of clause 485.214, the Tribunal had regard to the recent High Court decision in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (5 March 2010). The Tribunal found that this review application highlights the fact that the visa applicant faced practical difficulties in providing the relevant information at the time of application, which go to the issue of fairness. Specifically, in this case the relevant assessing authority, the Australian Computer Society, would not accept an application for a skills assessment without an academic record and letter of completion from the relevant education provider. However, the visa applicant’s academic transcript and the letter of completion were not provided to him by Edith Cowan University until 9 September 2008, almost 6 weeks after his student visa had ceased to be valid. Notably, the timing of the issue of these documents was not a matter over which the visa applicant had any practical control. In addition, as noted by the visa applicant’s representative, there was nothing in the legislation that required an education provider to issue this documentation to applicants within specified timeframes. In this case, the Tribunal found that, although the visa applicant stated in his online visa application that he had not applied for a skills assessment, he had applied for his skills assessment from the Australian Computing Society on 7 March 2009, three days after the Department requested this evidence, and approximately a week before the delegate refused his visa application. On 13 April 2010, the Tribunal received a letter dated 10 June 2009 from the Australian Computer Society stating that the visa applicant’s skills had been assessed as suitable for migration under ASCO Code 2231-79 (ICT Recent Graduate). As a result, the Tribunal found that there was evidence before the Tribunal at the time of decision that the visa applicant had applied for an assessment of his skills by the relevant assessing authority, the Australian Computing Society, for his nominated skilled occupation of ‘Computing Professional (not elsewhere classified)’. The Tribunal therefore found that the visa applicant met the requirements of cl.485.214 of the Regulations for the grant of a Subclass 485 (Skilled - Graduate) visa.

0903021
3 May 2010, Sydney
Mr J Cipolla, Acting Senior Member

SKILLED – (PROVISIONAL) (CLASS VC) – SUBCLASS 485 – SKILLED GRADUATE – CL.485.222 – COMPETENT ENGLISH – FALSIFIED IELTS RESULTS – A delegate of the Minister refused to grant the applicant a skilled visa on the basis that the visa applicant had not provided evidence that he had Competent English. The applicant advised the Tribunal at hearing that although he had not achieved Competent English in previous tests, he hoped to sit a further IELTS exam. The applicant requested that he be allowed to sit a further exam at the first available opportunity and the Tribunal agreed to this. The applicant advised the Tribunal that he would sit an IELTS exam on 23 January 2010, and exam results subsequently provided to the Tribunal indicated that the applicant achieved scores of 7.0 for Listening, 6.0 for Reading, 6.0 for Writing, and 6.0 for Speaking, with an overall band score of 6.0 in this exam. An online verification of these results undertaken by a Tribunal officer revealed, however, that the applicant had achieved scores of 7.0 for Listening, 4.5 for Reading, 5.0 for Writing, and 6.0 for Speaking. Due to this discrepancy, the Tribunal sought verification of the test results with the assessing authority. This authority was ‘unable to confirm as genuine’ the results as submitted by the applicant. The Tribunal wrote to the applicant inviting comment and response to this information but no response was received to the Tribunal’s correspondence.

Held: Decision under review affirmed.

The Tribunal noted that the applicant had undertaken several IELTS tests during the processing of the application and had not achieved a score of at least 6.0 in each of the four test components in any of these tests. It also referred to the evidence before it which indicated a falsified copy of an IELTS result was provided to the Tribunal and noted that the attempted verification of that test result indicated the applicant had again failed to achieve a score of 6.0 in each of the four components. The Tribunal found that there was no evidence before it to indicate that the applicant had undertaken any other language test, and accordingly, the Tribunal was not satisfied that the applicant had Competent English as required by cl.485.222(b) and therefore found that he did he did not meet cl.485.222 of the Regulations.

0901699
23 April 2010, Melbourne
Ms D Buljan, Member

SKILLED (PROVISIONAL) (CLASS VC) – SUBCLASS 485 – SKILLED GRADUATE – CL.485.213 – CLOSELY RELATED COURSES – A delegate of the Minister refused to grant the applicant a Subclass 485 visa on the basis that the courses which the applicant had completed in Australia were not ‘closely related’ to her nominated occupation of ‘Translator’. In particular, the delegate noted that the subjects studied in the visa applicant’s Master of Engineering (Integrated Logistics Management), including Project Management, Risk and Technology Decisions, Engineering Economic Strategy etc, were not complementary to her nominated occupation of ‘Translator’. In her application, the visa applicant indicated that she had completed an ‘Advanced Diploma of Translating (August 2007 – February 2008) at the Australian Institute of Translating and Interpreting’, a ‘Master of Engineering’ (February 2006 – July 2007) at RMIT University (‘RMIT’) and a Bachelor of Arts (July 2000 – July 2004) from the Dalian University of Foreign Languages in China. The visa applicant provided a lengthy submission setting out her educational background, history and future career direction; an analysis of the relationship between translation and logistics management; an analysis of the Australian-Chinese bilateral economic relationship and the importance of translation and logistics in maintaining and facilitating this relationship; her work experience in Australia involving both translation and logistics management and the fact that she met the departmental points test with 120 points. A submission from the visa applicant’s employer advised that the visa applicant had been employed with the ‘Home Barista Institute and The Café Coach’ since September 2007, originally as a junior office assistant, being later promoted to the position of ‘Business Development Manager of Chinese Division.’ The employer stated that in this latter role, the visa applicant was required to “assist the General Manager to develop and expand the business within the Chinese speaking clientele for coffee courses, workshops, cafe management trainings, cafe consulting and retails product sales. Further evidence was provided in support of the application.

Held: Decision under review set aside

In considering whether the visa applicant’s ‘Master of Engineering (Integrated Logistics Management)’ qualification was ‘closely related’ to her nominated occupation of ‘Translator’, the Tribunal noted that, at first glance, it appeared not to be, as described in ASCO. However, in the present case the Tribunal was persuaded, upon closer examination of the role of a ‘Translator’ in Australia, that a qualification that developed skills in research, data collection, analysis, project management, personnel organisation and communication was closely related to this nominated occupation. The Tribunal also accepted that a ‘Translator’ may work in a range of fields in Australia, including sectors as diverse as legal, health and business, including distribution and supply. The Tribunal found there was no reason to assume from reading the description set out in ASCO that skills in research, data collection, analysis, project management, personnel organisation and communication were incompatible with the tasks of a ‘Translator’. The Tribunal gave weight to the applicant’s employer’s evidence of how the skills the visa applicant had acquired in her ‘Master of Engineering (Integrated Logistics Management)’ had complemented her work as a ‘Translator’ in the setting in which the Home Barista Institute operates, particularly as regards its significant Chinese clientele. She advised that the visa applicant’s combined qualifications in integrated logistics, or project management, and translation had assisted the Home Barista Institute to expand into a second business site in Melbourne and to take serious steps towards expanding into mainland China. The Tribunal was satisfied on the evidence before it that the ‘Master of Engineering (Integrated Logistics Management)’ and the ‘Advanced Diploma of Translating’ completed by the visa applicant in Australia had left her not only job-ready at the Home Barista Institute, but with skills that would be easily carried across to any translation work environment she may find herself in. Accordingly, the Tribunal remitted the application made by the visa applicant for a Skilled (Provisional) (Class VC) visa for reconsideration with the direction that the visa applicant met Clause 485.213 of the Regulations.

0806286
24 March 2010, Melbourne
Mr P Fisher, Member

SKILLED (RESIDENCE) (CLASS VB) – SUBCLASS 887 – SKILLED REGIONAL – CL.887.221 – CONDITION 8539 – REGIONAL WORK – A delegate of the Minister refused the primary visa applicant’s Subclass 887 visa as he did not satisfy cl.887.221 of the Regulations, because he had not complied with condition 8539 to which that visa was subject. At the time of the visa application, the primary visa applicant was the holder of a Subclass 495 Skilled – Independent Regional (Provisional) visa which was subject to condition 8539, which provided that while the holder was in Australia, he must not live, study or work outside a postcode which was specified in the relevant Gazette Notice. The Gazette Notice specified a number of institutions with campuses located in regional and low population growth metropolitan areas, as well as postcode ranges located in these areas for the purposes of where an applicant must study, reside and work. The applicant was a national of Pakistan whose wife was included as the secondary applicant in the visa application. At the time the visa application was lodged, the applicants were living in St Kilda, an inner suburb of Melbourne, and the primary visa applicant was working at a hotel in the Melbourne CBD. The application was refused on the basis that the primary visa applicant was not living in a ‘regional area’ at the time of application. The applicants submitted that they had lived and worked for two years in regional Victoria, and that after contacting the Department to see whether they could move back to Melbourne, they were informed that they could. Similarly, the primary visa applicant claimed that his new employer contacted the Department to make sure he was permitted to work while holding the Subclass 495 visa, and was assured by the Department that he could. The applicant’s representative submitted that the relevant policy provisions set out in the Procedures Advice Manual (PAM) were open to interpretation, noting, for example, that once provisional GSM visa holders have held their visa for at least two years and abided by the conditions of that visa they are eligible to apply for permanent residence, and that there was no obligation on them to remain in a regional area until the case was decided.

Held: Decision under review set aside

The Tribunal found that the primary visa applicant was granted a Subclass 495 visa in January 2006, and that the evidence provided from rental agreements, bond authority receipts, utility bills, payslips and letters from employers showed that he had lived and worked in regional Victoria between November 2005 and October 2007. The Tribunal accepted that the applicant did not comply with condition 8539 from February to October 2008, however, it found that cl.887.221 did not demand absolute compliance; rather, it required that applicants, while they were the holders of specified visas, must have complied substantially with the conditions to which the visa was subject. The Tribunal found that even before the Subclass 495 visa was granted, the applicant was living and working in regional Victoria. The Tribunal noted that this went to the question of the applicant’s intentions, and lent credibility to his claim that after two years in regional Victoria he approached the Department to enquire whether he could return to Melbourne, and was apparently misled into thinking he could do so without either breaching his visa conditions or adversely affecting his permanent visa application. The Tribunal found that he had formed this view from the fact that he openly declared in his application that after two years in regional Victoria he was now living and working in inner Melbourne. The Tribunal found that the evidence indicated that once he was informed that he was in breach of Condition 8539 via the primary decision, the primary visa applicant promptly took steps to rectify the situation by leaving his job and moving back to regional Victoria. The Tribunal was satisfied that the applicant did not deliberately flout condition 8539, and concluded that the breach was not a serious one. Therefore, the Tribunal found that the applicant had complied substantially with condition 8539, and consequently, the Tribunal found that the requirements of cl.887.221 had been met.

1000944
8 March 2010, Sydney
Ms K Raif, Member

SKILLED INDEPENDENT OVERSEAS STUDENT (RESIDENCE) (CLASS DD) – SUBCLASS 880 – CANCELLATION – S.109(1) – A delegate of the Minister cancelled the applicant’s Subclass 880 visa under s.109 because the delegate found that the applicant had provided a bogus document for the purpose of a skills assessment application. The applicant was a citizen of China who travelled to Australia on a Student visa in 2005 and completed a Diploma of Hairdressing Salon Management the following year. In 2007 the applicant applied for a Skilled visa, stating on the application form that he had obtained a skills assessment for the nominated occupation of a Hairdresser from Trades Recognition Australia (TRA). In the application, the applicant stated that he had been employed as a trainee hairdresser from April 2004 and he provided a signed employment reference which stated that he performed hair washing, hair treatment, drying and cutting, applying serum, scalp treatment and maintaining relevant health and safety procedures. The applicant also provided to the TRA a training book outlining his duties and responsibilities and was also granted a pre-migration skills assessment in 2006 which indicated that it was based on the completion of an Australian Qualification Framework Certificate (AQF) and 900 hours of work experience. The applicant was subsequently granted the visa. At a later date, officers from the Department conducted an investigation into the applicant’s claimed employment where they spoke to the signatory of the employment reference who stated that the visa applicant was not employed but only helped in the salon, which was not the salon to which the employment reference referred. She stated that the applicant cleaned and washed hair but did not do any hairdressing as outlined in the reference, nor was he paid. The signatory stated that she recognised the signature on the employment reference but she did not write the reference and did not recognise the content of the document. Departmental officers concluded that the references were manufactured and that they were written by a person who had no authority to do so, and subsequently the applicant received a Notice of Intention to Consider Cancellation (NOICC) under s. 109 of the Act.

Held: Decision under review set aside.

In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant based on the material before it. The Tribunal found that the notice under s.107 given to the applicant referred to the employment reference given by the applicant to TRA. Thus, the question that arose was whether those documents were given to an “officer” for the purposes of s.103. The Tribunal found that the documents given to TRA were not given to a person or body specified in s.103 and that there was no breach of s.103 in respect of the document that the applicant gave to the TRA.

A breach may also be established if a ‘bogus document’ was provided by the applicant to the Department. ‘Bogus document’ is defined to include “a document that the Minister reasonably suspects is a document that … (b) is counterfeit or has been altered by a person who does not have authority to do so”; or (c) “was obtained because of a false or misleading statement, whether or not made knowingly”. The delegate found that the TRA assessment was obtained on the basis of a false or misleading employment reference from Hair Force 1 and that the TRA assessment was obtained because of a false or misleading statement and the assessment itself was a bogus document. This document was then given to DIAC, which suggested non-compliance with s.103. However, the Tribunal formed the view that the s.107 Notice did not sufficiently particularise the non-compliance or sufficiently state the basis on which the non-compliance was alleged, thereby not allowing the recipient an opportunity to understand and attempt to answer the allegation. As a visa cannot be cancelled under s.109 on a ground not sufficiently particularised in the s.107 notice, the Tribunal did not consider that the applicant was given a real opportunity to understand and answer the allegation. Accordingly, the Tribunal found that although the s. 107 Notice did not offer sufficient particulars, because the bogus documents given to TRA were not given to an “Officer”, it was not possible to decide that there was non-compliance by the applicant “in the way described in the notice”. It followed that the power to cancel the visa did not arise. Accordingly, the Tribunal found that the notice issued under s.107 of the Act was not a valid notice in that it did not sufficiently particularise the non-compliance and therefore, there was no power to cancel the visa. It followed that the delegate’s decision to cancel the visa was set aside.

0808209
25 February 2010, Melbourne
Mr A Gregory, Member

SKILLED – INDEPENDENT (RESIDENCE) (CLASS VB) – SUBCLASS 885 – CL.885.221 – POINTS TEST – A delegate of the Minister refused the applicant’s Subclass 885 visa application as the applicant did not satisfy cl.885.221 of the Regulations because she did not have sufficient points for this type of visa for which the pool and pass mark was 120 points. The delegate, in assessing the visa applicant, allocated 110 points which did not meet the pass mark. The visa applicant claimed she was entitled to 15 points and not 5 points in view of her Honours Bachelor’s degree. The delegate stated that the Bachelor of Animal Science with Honours degree from La Trobe University was not eligible for 15 points, as the applicant had been awarded Second Class B honours, when the requirement was a Second Class Division 1 level or above. The applicant’s representative submitted that there was ambiguity in the definition of “Second Class (Division 1) or above”, and pointed out the varying standard of grades of the honours degrees by different Australian universities. The representative also pointed out that the applicant had endeavoured to seek clarification with the university and the Department before she made her application in relation to her situation and was led to believe that she would meet the 15 points criteria for her Honours degree. The applicant claimed that there was confusion regarding the university’s grading system, both on their website and in their reference guide, and that before she completed her degree she obtained a booklet from the Department which indicated that she needed an “upper second class level”. The applicant stated that a “Division 1” was required and that this was not indicated in the booklet. She claimed that she asked for an answer as to what was an “upper second class level” and was told it was 55% and that she would get 20 points. Under the circumstances the applicant claimed that she was not given the correct information.

Held: Decision under review affirmed.

The Tribunal found that the applicant had been given misleading advice by both the Department and the university and therefore she had been placed in a difficult situation. The Tribunal accepted that the visa applicant acted in good faith and endeavoured to meet the points test and that she felt she had attained what was required in regard to her degree. The Tribunal took “the simple view” that an H2B Honours grading, given that there were H1 and H2A grades, was not a Second Class Honour (Division 1), but equated to a Second Class Honour (Division 2). The Tribunal also referred to the Australian Government’s Australian Education International Gradings, which equated Second Class Honours (Lower Division), to Second Class Division 2 or B. The Tribunal noted that La Trobe University listed as its honours grades: H1, H2, H2A, H2B and H3. Given this, the Tribunal found that the applicant had not met the requirements of an honours degree at the Second Class Division 1 level by an Australian educational institution and so was therefore entitled to 5 points and not 15 points. Hence, the Tribunal found that the applicant did not meet the requirements for the grant of the visa.

0807020
19 February 2010, Sydney
Ms S Pinto, Member

SKILLED — AUSTRALIAN SPONSORED (MIGRANT) (CLASS BQ) – SUBCLASS 138 – CL.138.216 — SKILLED OCCUPATION – A delegate of the Minister refused the applicant’s Subclass 138 visa on the basis that the visa applicant did not satisfy cl.138.216 of the Regulations because the delegate found that the visa applicant had not been employed in a skilled occupation during the relevant period. The visa applicant was a citizen of Indonesia who was sponsored by the sister of the visa applicant’s husband. The visa applicant nominated the skilled occupation of “accountant” and claimed that she had completed a Bachelor of Accounting in Indonesia in 2004, and that she had obtained a skills assessment from CPA Australia in 2007. She claimed that she had been employed with a firm in Jakarta since 2002 as “accounting staff”; and at another firm as “data analysis staff” from 2002 until 2006, and she also provided a skills assessment from VETASSESS as an “Internal Auditor”. The applicant provided a reference from the Managing Director of her employer stating that she had been employed as an “Internal Auditor” since 2002, and included a detailed list of her job description and duties. The Tribunal requested that the Department of Foreign Affairs (DFAT) in Indonesia conduct an unannounced visit to the offices of the applicant’s employer to ascertain further details of her employment, and they were advised that the applicant worked in a sub-branch, as did the Managing Director. Subsequently, DFAT contacted the company’s Human Resources (HR) department by phone who advised that the applicant was employed as “accounting staff”, and denied that the applicant was an “Internal Auditor” as this function was outsourced. At the hearing the visa applicant claimed that on a daily basis she would check the accounting system and financial reports and compare the debit and cash available to the company, and that she also prepared reports for the external auditor. The applicant provided a letter from the company President stating that the visa applicant performed the duties of an Internal Auditor, as well as a statement from a representative of their HR department, stating that they had provided “wrong information” to DFAT as the representative had been “busy” at the time of the call.

Held: Decision under review affirmed

The Tribunal found that the visa applicant’s duties, as described to both the Department and DFAT, were consistent with low level accounting duties undertaken by a person such as a Bookkeeper or someone in a similar role. The Tribunal was not satisfied that such duties were undertaken by someone who was at the professional level of an Internal Auditor. The Tribunal found that the ASCO Guide indicated that an Internal Auditor was involved at a professional level to ensure that businesses complied with laws and regulations and ensured that financial reporting was reliable and that the business operations were effective and efficient. It found that by contrast, a Bookkeeper was described at a substantially lower level and the duties were essentially to maintain and evaluate records of financial transactions in books or computerised accounting systems. Although the Tribunal was prepared to accept that as part of her role as “accounting staff” the visa applicant may have undertaken some lower level auditing functions such as checking that the financial reports were correct, the Tribunal did not accept that the visa applicant’s duties, as initially described to the Department and to DFAT, established that she undertook the range of duties commensurate with that of an Internal Auditor. The Tribunal found that the outline of duties provided by the company’s HR Manager was at a much lower level than that of an Internal Auditor, and therefore it did not accept that it was credible that the later evidence in relation to the visa applicant’s duties would differ so significantly from the duties as initially provided to the Department and those provided to DFAT during its inquiries. The Tribunal was satisfied that the DFAT site visit was properly conducted and considered that this evidence also established that the company did not employ Internal Auditors. Therefore, the Tribunal found that the visa applicant was not employed in a skilled occupation for at least 24 months in the 36 months preceding the date of application, and that accordingly she did not meet the requirements of cl.138.216 of the Regulations.

0901251
12 February 2010, Sydney
Mr A Mullin, Member

SKILLED (PROVISIONAL) (CLASS VC) – SUBCLASS 485 – CL.485.215(c) – EVIDENCE OF IELTS LANGUAGE TEST – A delegate of the Minister refused to grant the applicant a Skilled (Provisional) visa on the basis that the applicant did not satisfy the requirements of cl.485.215(c) of the Regulations. The applicant’s results from an IELTS test held in September 2008 showed he did not achieve the required score. He submitted results of another IELTS test taken in March 2009 where he had achieved the required score, however, the applicant’s migration agent was unable to show that this IELTS test had been booked at the time of the visa application due to the fact that the applicant had used a different migration agent, and there was no evidence that the applicant had notified the details of a further IELTS test to the Department. The applicant submitted the original IELTS test for March 2009 along with a letter from Macquarie University stating that in October 2008 he had booked an IELTS test which he attended in January 2009. The applicant admitted that he understood his English language ability at the time of application was neither at the “Competent” nor the “Vocational” level. He claimed that before he submitted his visa application, he had booked an IELTS test and obtained a receipt from the test centre confirming this but that he did not know where this document was now. He claimed he had attempted to scan the booking receipt and forward it electronically to the Department but that the result was not very clear. He claimed he then sent the receipt to the Department by mail ‘some days later’ and that he did not know why there was nothing on his file to indicate the Department had received the receipt by mail. The applicant’s brother claimed at the hearing that he and the applicant realised the visa application form had not asked for the date of the next test, and confirmed their claimed attempts to notify the Department electronically and by mail. The migration agent claimed that the applicant was genuinely working as a cook, and that he and his brother planned to open a restaurant together in Australia.

Held: Decision under review affirmed.

The Tribunal found that there was no evidence that the applicant had achieved, in an IELTS test, a score as required by the Regulations. The Tribunal found, on this basis and as conceded by the applicant, that he did not have vocational English at the time of application. The Tribunal therefore found that the applicant did not have competent English at the time of application and further found, as conceded by the applicant, that his visa application was not accompanied by evidence that he had made arrangements to undergo a specified language test as required under cl.485.215(c). The Tribunal noted and accepted that in October 2008 the applicant made arrangements for and sat an IELTS test in January 2009. The Tribunal also noted the applicant’s submission that there was no indication in the online visa application form that he would be required to submit evidence of arrangements for a subsequent IELTS test at that time and there was no facility to attach such evidence to the application form. The Tribunal was satisfied, however, that these circumstances did not alter the fact that the applicant did not provide the requisite evidence with the visa application. The Tribunal found the applicant’s visa application was not accompanied by evidence that he had made arrangements to undergo a language test specified for the purposes of cl.485.215(c). The Tribunal accepted that the applicant had made arrangements for an IELTS test to be undertaken after the date of application and noted that it was unfortunate he did not submit the evidence of this with his visa application. The Tribunal indicated that although the decision appeared to be a harsh one in these circumstances, given the findings above, the Tribunal must affirm the decision.

0807974
20 January 2010, Sydney
Dr S Crosdale, Member

SKILLED (RESIDENCE) (CLASS VB) – SUBCLASS 885 – SKILLED – INDEPENDENT – CL.885.212 – A delegate of the Minister refused to grant the applicant a Subclass 885 visa on the basis that she did not satisfy cl.885.212 as she had not provided evidence that she had applied for an assessment of her skills for her nominated occupation by a relevant assessing authority. The applicant identified her nominated occupation as a Registered Nurse and the assessing authority as the Australian Nursing and Midwifery Council. She subsequently provided to the Tribunal a positive assessment from the Australian Nursing and Midwifery Council for migration purposes. At the Tribunal hearing, the applicant claimed she did not think she had to provide an assessment of her skills because she was registered in NSW and she had a degree that was recognised in NSW. She said that it was because of this misunderstanding that she did not submit the assessment when lodging her application. The applicant also submitted that she believed Australia was very short of nurses and she was a very good nurse. She provided a large number of documents relating to her ongoing employment as a Registered Nurse, including several references which spoke highly of her nursing ability and also an offer of full-time employment from St George Public Hospital.

Held: Decision under review affirmed.

The Tribunal found that the applicant, at the time of application, had not applied to the Australian Nursing and Midwifery Council for an assessment of her skills for her nominated skilled occupation of Registered Nurse. Accordingly, the Tribunal was not satisfied that the applicant met cl.885.212. The Tribunal acknowledged however, that there is a shortage of Registered Nurses in Australia and noted that since the completion of her Bachelor of Nursing the applicant had worked full-time as a Registered Nurse in NSW. The Tribunal also referred to the references provided by the applicant and her evidence that she was an experienced nurse who loved her job and her patients. In light of this evidence, the Tribunal accepted that it would be of benefit to the public if the applicant remained in Australia and continued her nursing career and it referred the matter to the Department for the Minister’s attention.

Australian Business Visas

0905698
5 August 2010, Melbourne
Mr D Young, Member

BUSINESS SKILLS (RESIDENCE) (CLASS DF) – SUBCLASS 892 – STATE/TERRITORY SPONSORED BUSINESS OWNER – CL.892.211 – QUALIFYING BUSINESS – A delegate of the Minister refused the applicants’ Subclass 892 visa applications as they did not satisfy cl.892.211 of the Regulations. The Tribunal found that the Australian visa application of the primary visa applicant’s husband was invalid because he was not in Australia at the time of either the delegate’s decision or the review application. However, it accepted the remaining three applicants’ applications as MRT reviewable. The primary Australian immigration visa applicant claimed that she and her husband were the sole proprietors of EEC International Pty Ltd, a company which exported scrap metal. She claimed that she had attempted to expand her business by visiting Sims Metal in an effort to find new local suppliers, as well as visiting the Austrade office in Guangzhou in order to find new customers in China, however, these approaches did not yield any results. The Australian immigration visa applicant claimed that she did not employ any staff in order to keep her overheads down and that, in any event, it would be difficult to find employees since the business required highly specialised knowledge. She claimed that she occasionally asked her son to accompany her during visits to scrap metal yards because he spoke some English.

The Australian immigration visa applicant claimed that she had two customers who had a standing list of materials in which they were interested, and that she monitored the prices of those metals advertised on the internet by the two suppliers that she dealt with. She claimed that she would advise the customers of the prices of desired materials and make the arrangements if they wanted to place an order. The applicant claimed that she was paid by adding between 5% and 10% to the advertised price when quoting to her buyers. She claimed that she had acquired the knowledge necessary to function successfully in this industry due to her exposure to the automotive parts industry, and to her husband’s building and renovation business. She claimed that she had also done some market research and “consulted professionals” to learn how to identify alloys and metal grades.

Held: Decision under review affirmed.

Whilst the Tribunal was satisfied that the main applicant has had, and continues to have, an ownership interest in a business in Australia for at least two years prior to the date of Australian visa application as specified in cl.892.211, it was not satisfied that that business was a ‘qualifying business’ within the meaning of r.1.03, and that, by implication, it was a ‘main business’ within the meaning of r.1.11(1). The Tribunal noted that the legislation was silent on the meaning of the phrase ‘to the public’ as it occurred in the r.1.03 definition of ‘qualifying business’, and that it could find no judicial guidance directly on that point. After consulting the dictionary meaning, the Tribunal construed the provision to require that a qualifying business be one which engaged in the supply of goods and/or services to the community, and ordinary people in general. The Tribunal observed that such goods and/or services would, by their nature, almost invariably be finished goods and/or services which were ready for consumption, rather than raw materials or partially completed commodities requiring further processing. The Tribunal therefore found that the correct construction of ‘qualifying business’ was one which engaged in the provision of goods and/or services for consumption by ordinary members of the community, rather than to businesses for use in productive processes, or for further processing. The Tribunal further found that the expression ‘the public’, in ordinary parlance, would normally be confined to members of one’s own national community. It followed that the Tribunal did not accept that a ‘qualifying business’ within the meaning of r.1.03 encompassed the Australian immigration visa applicant’s business, which was engaged solely in organising the supply of raw materials for processing by two Chinese-owned corporations, located offshore. It found that the applicant’s business thus failed to meet the requirements of r.1.11(1)(d), and by implication, failed the definition of ‘main business’ at r.1.11(1). The Australian immigration visa applicant therefore failed to meet the requirements of cl.892.211(1), and by extension, the requirements of cl.892.211. Accordingly, the Tribunal affirmed the decision under review.

0809131
8 June 2010, Melbourne
Mr A Gregory, Member

BUSINESS SKILLS (RESIDENCE) (CLASS DF) – SUBCLASS 892 – STATE/TERRITORY SPONSORED BUSINESS OWNER – CL.892.211 – OWNERSHIP INTEREST IN A MAIN BUSINESS – A delegate of the Minister refused the applicant’s Subclass 892 visa application as the applicant did not provide evidence that he had an ownership interest in a ‘main business’ both at time of application and at time of decision, and that the definition of ‘main business’ included that a main business must be a ‘qualifying business’. The main business nominated in the visa application was Jinze International Australia Pty Ltd (Jinze), of which the applicant claimed to be the major shareholder. He claimed that the main activity of the company was to produce recycled goods and export them, including waste clothes, waste fabric, waste tyres and waste plastics. The applicant claimed that in the first three years of the business that he also exported wool and that the annual turnover of the company was $1 million. He claimed that he then set up a factory in Canberra and invested $1.3 million on recycling equipment, and that he exported these products to the USA and Japan. The applicant claimed that he had two joint ventures with partners in Adelaide, and that they used waste to produce rubber powder, and also waste plastic to produce rail sleepers, which had attracted government funding of $5 million. The applicant claimed that Charles Li Textile was the manufacturing arm of the business and that Jinze was the sales and investment company which also undertook research and development. He claimed that they had many patents including one for a mobile abattoir, and that he had spent five years promoting the export of white donkeys to China which had culminated in the signing of a trade agreement. The applicant claimed that he was in discussion with the Northern Territory and Queensland governments about the export of cane toads to China for use in Chinese medicine and that this would significantly benefit regional employment. He claimed that the business would export donkeys, camels and cane toads to China and that the contract would be worth $100 million a year, with a future target of $1 billion in sales, given that there were 5 million white donkeys, 1.7 million camels and 200 million cane toads in Australia. He also claimed to have developed a “grape muck” program in conjunction with the South Australian government, which involved separating the skin to feed cattle and the seed for export to China, which would be worth $100 million a year. The applicant’s representative claimed that the business was a manufacturing one, and that the Department had erred in comparing it to a trading company as the applicant had to undertake significant development and research which meant there were significant periods where there was little in the way of product or wages.

Held: Decision under review set aside.

The Tribunal considered the applicant to be an impressive witness and noted his ideas for export and product development, including an emphasis on using waste to good effect and in solving some of Australia’s problems such as white donkeys, wild camels and cane toads. The Tribunal made further note of his work with grape waste and sending the seeds to China as an export and made the point that the role of research and development in bringing these products to fruition was clearly of great importance. The Tribunal accepted that the applicant was actively involved in the company undertaking research and development work, and while there were few sales in the relevant period, that being in the two years prior to when the application was made, the figures shown for the relevant quarters showed a turnover of $3,800 for January to March 2003, $1,344,331 for April 2003 to June 2003, and $1,347,108 for the period April 2004 to June 2004. Given the nature of the business and the developmental aspect for the products, the Tribunal accepted the uneven pattern of the turnover and that the company was active throughout the two year period. The Tribunal was satisfied that the applicant was a shareholder in both nominated businesses and therefore that he had an ownership interest in each nominated business as required by Subclause 134(10). The Tribunal was also satisfied that the applicant had maintained direct and continuous involvement in the management of the day to day operations of his nominated businesses. Considered cumulatively, the Tribunal was satisfied that at the time of application, the applicant had and continues to have, an ownership interest in one or more actively operating main businesses in Australia for the two year period immediately preceding his visa application, and therefore he satisfied cl.892.211(1) of the Regulations.

0900244
10 May 2010, Sydney
Ms N Dougall, Member

BUSINESS SKILLS (RESIDENCE) (CLASS DF) – SUBCLASS 892 – STATE/TERRITORY SPONSORED BUSINESS OWNER – CL.892.211 & CL.892.212 – NO OWNERSHIP INTEREST IN MAIN BUSINESS – A delegate of the Minister refused to grant the applicant a Subclass 892 visa on the basis that the visa applicant did not satisfy cl.892.211 of the Regulations because the visa applicant did not have an ownership interest in a business in Australia. The delegate also found that the visa applicant did not meet clause 892.212 as the delegate was not satisfied that the visa applicant, or the visa applicant and his spouse together, had assets in Australia of not less than $250,000 and their assets in the nominated business were not less than $75,000, throughout the 12 months immediately preceding the visa application. An historical extract from ASIC indicated that the business was placed into external administration in March 2009, and in February 2010 the final accounts of Creditors’ Voluntary Winding Up were lodged with ASIC.

Held: Decision under review affirmed.

The Tribunal found that, at the time the business was placed into external administration in March 2009, the business was not a “qualifying business”, as it was not being operated for the purpose of making profit through provision of goods, services, or goods and services to the public. The Tribunal noted that it had invited comments from the visa applicant on information in the ASIC historical search, and it had also invited the visa applicant to provide additional information, including a submission and supporting evidence that he had an ownership interest in another business. It further noted that he had failed to comment on or respond to the information or provide the requested information within the prescribed time frame. Therefore, the Tribunal found that as the visa applicant did not have an ownership interest in a business, he did not satisfy the criterion in cl.892.211, and as such did not meet the criterion in cl.892.221 of the Regulations.

0806108
9 February 2010, Sydney
Mr T Delofski, Member

BUSINESS SKILLS (RESIDENCE) (CLASS BH) – SUBCLASS 845 – ESTABLISHED BUSINESS – CL.845.214 – DIVISION 1.4 OF SCHEDULE 7 – A delegate of the Minister refused the applicant’s Subclass 845 visa application on the basis that the visa applicant did not satisfy cl.845.222 as the applicant’s score on the business skills points test was not less than the number of points that is specified by Gazette Notice. The applicant’s sole main business is Ozpak Enterprises Pty Ltd. The applicant submitted that he genuinely believed when he employed Nisha Ahmad that she was an Australian citizen and that Nisha Ahmad should be included in the Tribunal’s assessment of Division 1.4 since the applicant did not knowingly hire her as an ‘ineligible person’. At the time of his visa application when he saw her passport, the applicant agreed that it had been tampered with and it was not Nisha Ahmad’s true passport. Evidence of wages records and residence status for the company’s employees were also provided for the relevant period.

Held: Decision under review affirmed.

The Tribunal considered whether the applicant’s score on the business skills points test was not less than the number of points specified by the relevant Gazette Notice. The Tribunal found that the applicant’s sole main business is Ozpak Enterprises Pty Ltd and the period of 12 months immediately preceding the making of the visa application was from 14 February 2007 to 14 February 2008. Based on wages records and evidence of employees’ immigration status for this period, the Tribunal was satisfied that six employees were either Australian citizens, Australian permanent residents or eligible New Zealand citizens and were therefore eligible for inclusion in the Tribunal’s assessment of the applicant’s points entitlement under Division 1.4 of Schedule 7. Another employee named Nisha Ahmad, who was also an employee over the relevant 12 month period, provided a copy of an Australian passport which had clearly been tampered with. The Tribunal found that the name of Nisha Ahmad had clearly been written by hand over the (illegible) name of the passport’s true owner. Because of the clear tampering, the Tribunal did not accept that Nisha Ahmad was the true owner of the passport. In the absence of any additional supporting evidence, the Tribunal was not satisfied that Nisha Ahmad was an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. While the Tribunal acknowledged that the applicant may have genuinely believed that Nisha Ahmad was an Australian citizen when he employed her, the Tribunal did not accept that Nisha Ahmad should be included in the Tribunal’s assessment of Division 1.4. Accordingly, the Tribunal was obliged not to include her in its assessment. In order to determine whether the applicant was entitled to 60 points under Division 1.4, the Tribunal assessed whether the aggregate number of hours worked by these employees over the relevant period was equivalent to 3 full-time employees. The Tribunal found that the aggregate hours actually worked, plus leave entitlements by the applicant’s employees (namely 4,501.25 hours) is less than the 4,680 hours that represents the total minimum number of hours 3 (notional) full-time employees would be expected to work over a 12 month period. It followed that the applicant was not entitled to any points under Division 1.4 of Schedule 7. Since the maximum aggregate entitlement under Parts 2, 3 and 4 of Schedule 7 is 75 points, the Tribunal found that the applicant’s score on the business skills points test is less than the 105 points that is specified for the purposes of this subclause by Gazette Notice. It followed that the primary visa applicant did not meet cl.845.222 of the Regulations.

Australian Employer Sponsorship Visas - Permanent

0908477
17 September 2010, Melbourne
Mr G Haddad, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 856 – CL.856.213(c) – VOCATIONAL ENGLISH – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister refused the Australian immigration visa applicant‟s Subclass 856 visa on the basis that he did not satisfy cl.856.213(c), which pertained to the applicant possessing vocational English. The Australian visa applicant was nominated for the approved nominated position of „General Manager‟, with the business being operated by the applicant and his wife. The Australian immigration visa applicant had requested that his visa application be considered as „exceptional‟ for the purposes of the vocational English requirement, on the basis that the work environment in a Chinese noodle shop did not require a high level of English language skills, and that his colleagues spoke English as well as the applicant‟s language, Mandarin, meaning that he had no difficulty communicating in order to perform his duties. The Australian immigration visa applicant provided results of an International English Language Testing System (IELTS) test which he had attempted in September 2009, but the results he achieved did not meet the requirement set out in r.1.15B. The delegate considered the Australian immigration visa applicant‟s request against factors set out in the Procedures Advice Manual 3 (PAM 3), but was not satisfied that exceptional circumstances existed.

The applicant‟s representative submitted that the applicant was not a conventional employee; rather, he was an entrepreneur and investor as well as being a general manager. It was claimed that the applicant held a financial interest in two restaurants, as well as a timber flooring business, and that his role as an investor, entrepreneur and manager put him outside the usual role of an ENS visa applicant such as a tradesperson or specialist employee. The representative claimed that the applicant was adding to the expansion of the economy in regional areas, and employed 13 staff, including seven on a full-time basis. It was claimed that as an entrepreneur and manager, the applicant had established „exceptional circumstances‟ and that he had sufficient English language skills to conduct his business. The representative also claimed that the applicant met all of the factors in PAM 3.

Held: Decision under review affirmed.

The Tribunal noted that it was not contested that the applicant did not have vocational English at the time of application or at the time of decision, but that the contention was that exceptional circumstances applied so as to waive this requirement. The Tribunal found that, whilst the term „exceptional circumstances‟ was not defined in the Act or Regulations, the concept of „exceptional‟ had been the subject of judicial consideration by the courts, which had observed that the word should be understood as meaning „unusual‟ or „atypical‟.

The Tribunal accepted that the applicant would not consider it appropriate to recruit another candidate for the position who had vocational English, given that the size of the investment and turnover of the businesses was relatively small. However, the Tribunal did not accept the proposition that the applicant could be assessed outside the scheme for which he was applying, in order to establish an exceptional circumstance for the purpose of the visa under that scheme. Further, it did not accept the fact that the applicant had brought funds from China to invest in his business was a relevant consideration for the purpose of establishing „exceptional circumstances‟ for a visa applicant to be employed by an Australian business. It found that the circumstances arose because of the coincidence that the company which nominated the visa applicant was also owned by him. The Tribunal found that the fact that this might be „unusual‟ does not establish „exceptional circumstances‟.

The Tribunal considered the submission as to why it was not essential for the applicant to have vocational English to perform the duties of general manager. It considered the evidence of his efforts to improve his English language skills; however, it was not satisfied that this evidence demonstrated exceptional circumstances, as it did not set the duties of the position or the applicant apart from a comparable situation to justify waiving the vocational English requirement. The Tribunal also considered the factors in PAM 3, but it did not accept that they related to, or were, exceptional circumstances, and it rejected the suggestion that meeting those factors in policy was determinative of establishing exceptional circumstances.

After considering all of the evidence, the Tribunal was not satisfied that the applicant had established that the circumstances, individually or cumulatively, were exceptional within the ordinary meaning of the word, and observing the comments in the judicial consideration of the term. The Tribunal therefore found that „exceptional circumstances‟ did not apply in this case, and that the applicant did not meet cl.856.213(c), and hence was unable to satisfy the requirements of cl.856.213.

0907281
16 July 2010, Melbourne
Mr D Lennon, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 856 – CL.213(c)(ii) – IELTS –VOCATIONAL ENGLISH – A delegate of the Minister refused to grant the applicant a Subclass 856 visa on the basis that the visa applicant did not satisfy cl.213(c)(ii) of the Regulations. The visa applicant claimed that he was an education officer in a school comprising mainly of Chinese students, and that he was irreplaceable as he knew the characteristics and mindset of the Chinese students better than someone of Australian background. He claimed that he had sufficient English to conduct his work and communicate in simple English as needed with students, parents and teachers. He claimed he undertook occupational health and safety (OH&S) training in China and was the responsible officer in his workplace. He claimed that he received some informal instruction from his Australian sponsoring company and participated in monthly fire drills and first aid. The applicant claimed that he attended night classes in English and obtained Certificates II and III and completed courses tailored for the IELTS test. The sponsor claimed that the visa applicant advised on new ideas and on how to deal with problems, he provided feedback on assessment issues, and was the “social welfare officer”. The sponsor claimed that the visa applicant had passed the OH&S course without an interpreter and had almost achieved a score of 5 for his English tests. He claimed that attempts were made to recruit locally, however, applications to the Department had been refused, and other applicants were unsuitable as they had worked for a short period of time and then left. The sponsor claimed that there were exceptional circumstances because the school was highly specialised and catered for students with ethnic Chinese backgrounds, and that the visa applicant had specific duties such as communication with parents and teachers, mostly in Chinese.

Held: Decision under review affirmed.

The Tribunal found that the visa applicant did not have ‘vocational English’, and he, therefore, had to establish exceptional circumstances to justify a waiver of the English language requirement. The Tribunal also considered the ASCO descriptors and determined that the applicant should demonstrate proficiency in a number of those tasks since there was some complexity in the communication needed. The Tribunal found that a significant reason the applicant provided a valuable service to the school was because he currently communicated in Chinese, since a significant proportion of students and teachers were currently Chinese or of Chinese descent. The Tribunal found that if the linguistic composition of the school changed in the future, the applicant’s lack of vocational English would impede his performance of the job. The Tribunal found it difficult to accept that the visa applicant could provide the same level of counseling and assistance to Chinese students as he could to those who were not Chinese, and it concluded that the applicant was able to work fluently without vocational English because of the proportion of Chinese students, and that this did not amount to an exceptional circumstance. The Tribunal noted that the applicant did not transfer his skills as an Education Officer to other employees and, without vocational English, he did not have the capacity to do so. The Tribunal was concerned about the applicant’s ability to comply with OH&S issues and, in the event of an emergency, he and others could be at risk, and it was not clear how, without vocational English, the applicant would communicate with non-Chinese students and staff to ensure their safety. In relation to his employment obligations and entitlements, the Tribunal found that these were technical matters and considered the applicant would need some assistance to maintain his awareness of these obligations and entitlements. The Tribunal noted the sponsor’s attempts to recruit an Education Officer locally and accepted it may be difficult to recruit but it did not consider that significant effort was expended to find someone with vocational English. The Tribunal accepted that the visa applicant made efforts to improve his English but it found that this effort was not exceptional. The Tribunal was sympathetic to the applicant; however, it found that there were no exceptional circumstances which justified the waiver of the requirement for vocational English. Accordingly, the Tribunal found that the applicant did not meet the requirements of cl.856.213()(ii) of the Regulations.

0909198
8 July 2010, Sydney
Mr D O’Brien, Principal Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 857 – REGIONAL SPONSORED MIGRATION SCHEME – CL.857.213(c) – SUPERVISED PRACTICE PLAN – AREA OF NEED - A delegate of the Minister refused to grant the applicant a Subclass 857 visa on the basis that the visa applicant did not satisfy cl.857.213(c) of the Regulations because he is an overseas trained medical practitioner. The delegate also considered that the conditions which applied to his registration by the Medical Board of Queensland were not such as to allow him to work without requiring further training or on-the-job supervision. The applicant’s representative claimed that the applicant’s special purpose registration allowed him to work without the need for further training or on the job supervision, that he held an Area of Need (AoN) conditional registration and that he was nominated for an AoN position. The representative claimed the visa applicant’s supervised practice plan provided for a program of continuous learning and professional development. The visa applicant claimed he sat the Royal Australian College of General Practitioners (RACGP) final clinical exam but had not passed. He claimed he could sit the exam again and that this would enable him to obtain specialist accreditation as a general practitioner. He claimed he was in general practice in Australia for more than ten years, prior to that he had practiced overseas and had practiced for seven years in regional Australia. He claimed that when he first arrived, he practiced with two other doctors, but they had since retired and he now practiced alone. He claimed he conducted his practice like any other general practitioner and without supervision. He claimed he passed the first two components of the requirements for specialist general practitioner accreditation and the only remaining component was the clinical exam. He claimed his present status as a general practitioner qualified him to practice without restriction in an AoN, where he was located. He also claimed it was difficult to do his supervised practice plan as this involved supervision from another GP in the town who was very busy and they found it hard to get together. He claimed the other supervising doctor had been with the local hospital but had moved to the city some distance away. The visa applicant claimed he was most anxious to get the RACGP specialist GP exam completed and he had a further two years in which to pass the final clinical exam so he could obtain unconditional registration. The representative provided a letter from the town’s Regional Council which confirmed the applicant’s nomination and that he worked in an area defined by the Australian Health Practitioner Regulation Agency as an AoN. The Australian medical registration details for the applicant show that he held limited registration in an Area of Need.

Held: Decision under review set aside.

The Tribunal accepted the applicant’s evidence that he practiced as a general practitioner in a regional area without supervision and that he was proceeding towards becoming a Fellow of the Royal Australian College of General Practitioners but had not yet successfully completed the final clinical exam. The Tribunal found that the terms of the supervised practice plan were consistent with the status of someone seeking to pass that exam, but did not limit him to supervised practice or require him to undertake further training. The Tribunal found that under Departmental policy AoN medical registration was conditional registration, normally issued when a person had yet to complete their medical fellowship requirements but had acquired the skills and experience to perform their work without the need for daily supervision by another medical practitioner. The Tribunal found this registration was acceptable if certain conditions were met and it found that they had been met since the town’s Regional Council, as nominator, confirmed the position to be an AoN position. The Tribunal also found the applicant’s medical registration showed that he held an AoN registration which did not specify any need for further training or daily supervision, or practice plans which required him to consult other medical practitioners or submit patient cases for evaluation. The Tribunal found that the requirement to consult other practitioners was for the limited purpose of exam preparations. Accordingly, the Tribunal found that the applicant met the requirements of cl.857.213(c) of the Regulations.

0904989
29 June 2010, Melbourne
Mr J Atkins, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 856 – EMPLOYER NOMINATION – CL.856.213(c)(ii) – EXCEPTIONAL CIRCUMSTANCES – OVER 45 YEARS OF AGE – A delegate of the Minister refused to grant the applicant an employer nomination visa on the basis that there were no exceptional circumstances in relation to the applicant being over 45 years of age at the time of application. The primary applicant, a qualified electrician with over 36 years post apprenticeship experience, was nominated to fill the position of General Electrician. He gave evidence at the Tribunal hearing in support of his claim for exceptional circumstances and submitted that the duties of the nominated position of a highly skilled and technically competent electrician were so specialised that few, if any, younger persons would have the required level of expertise. He further submitted that having regard to his acquired practical skills and experience in the field, his productive benefit to Australia would be greater than that of a person less than 45 years of age. The Tribunal received oral evidence in support of the applicant’s claims from several witnesses who confirmed that the applicant possessed an unusual and highly specialised range of skills and experience which it would not be possible to find in a younger applicant. The Managing Director of the sponsoring company explained that the applicant’s knowledge and experience in design and installation of electrical, data and communications infrastructure had been invaluable for the construction of its new premises in Western Australia and had indirectly led to an increase in employees by some 40 personnel. He also explained that the business had recently purchased new machinery to improve its production efficiency and as some of these machines were new to Australia, there were limited experienced technicians available for the servicing and maintenance of these machines. He stated that the applicant had become one of the most knowledgeable people in Western Australia for servicing and maintaining one machine in particular and he stressed that failure to have equipment running properly would have a disastrous effects upon his business. Another witness referred to the difficulty of finding electricians willing to undergo training on the relevant machinery in Western Australia due to the demands of the mining industry and said that his company proposed to send the applicant to Switzerland for training. Evidence of the applicant’s qualifications, his salary and other material were also provided in support of the application.

Held: Decision under review set aside.

The Tribunal found that the applicant’s employer had demonstrated that it was not possible to find in Australia or overseas, a suitably qualified person younger than the applicant. The Tribunal noted that the employer is a Western Australian business providing a range of meat and poultry products at a number of locations and found that the applicant, as a highly skilled and experienced electrician, was essential to the operation of the business, especially in light of the company’s plans to expand. The Tribunal accepted that the applicant had been responsible for the installation and maintenance of a number of highly specialised machines integral to the employer’s business and the continued employment of its staff. The Tribunal also concluded that evidence given by the employer and the other witnesses clearly demonstrated that the applicant had skills and experience that could only be acquired over many years and which would not be possessed by a younger applicant. Having taken into account all the circumstances and having considered the factors set out in the Department’s Procedures Advice Manual, the Tribunal was satisfied that the applicant’s circumstances were sufficiently unusual and out of the ordinary as to constitute exceptional circumstances for the purposes of clause 856.213 (c)(ii)(A). The Tribunal found that the applicant therefore met the requirements of clause 856.213(c)(ii) even though he had turned 56 at the time of application.

0909060
21 May 2010, Melbourne
Ms G Hamilton, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 857 – REGIONAL SPONSORED MIGRATION SCHEME – CL.857.213(b) – DIPLOMA OR HIGHER QUALIFICATION RELEVANT TO THE APPOINTMENT – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister refused to grant the applicant a Subclass 857 visa on the basis that she did not have a relevant diploma or higher level qualification. The delegate considered that according to the Australian Standard Classification of Occupations (ASCO) definition, without the applicant having 5 years experience, exceptional circumstances did not exist to justify waiving this requirement. The applicant was nominated by a radio station to work as a radio presenter in Western Australia, and the sponsor had asked for the job to be considered exempt from the need for diploma level qualifications as the applicant had already been working in the job and had received very good listener feedback. The sponsor noted that the applicant had a psychology degree which was ‘ideal’, and that she had the necessary outgoing personality, further noting that the nominated position was approved. In lodging her visa application, the applicant sought a waiver of the criterion of diploma level qualification on the basis of exceptional circumstances. She submitted that in her work she constantly drew on the skills she had developed whilst studying psychology. Nonetheless, the visa application was rejected on the basis that the applicant did not have a relevant diploma or higher level qualification. In support of the review application, the applicant’s sponsor made a written submission reiterating the station’s strong business need to retain the applicant in her position. The applicant lodged further supporting references from numerous local government and business people, as well as a newspaper article publicising her cause.

Held: Decision under review set aside.

The Tribunal was able to decide the review in the applicant’s favour on the basis of the material before it without the need for a hearing. The Tribunal referred to the ASCO description of the nominated occupation, which indicated the entry requirement for a radio presenter was a bachelor degree or higher qualification, or at least 5 years relevant experience. It also stated that the occupation required high levels of creative talent or personal interest as well as, or in place of, formal qualifications or experience. The Tribunal noted that cl.857.213(b) did not require that academic qualifications be in the same field as the nominated occupation, only that they be relevant. The Tribunal pointed out that it was apparent from the ASCO description that personal qualities could take the place of formal qualifications as the requisite skill level for entry into the nominated occupation. The Tribunal found that this meant no particular degree was required at all, let alone a degree in radio specifically. In accordance with the evidence given by the applicant and her sponsor, the Tribunal found that as the role was very much about communicating with an audience, it made sense that the applicant’s psychology degree was relevant to the occupation. The Tribunal therefore found that the applicant had a diploma or higher level qualification relevant to the appointment. Accordingly, the Tribunal found that she met the criterion in cl.857.213(b) of the Regulations.

0806919
25 February 2010, Melbourne
Mr G Robinson, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 856 – EMPLOYER NOMINATION SCHEME – CL.856.213(C) – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister refused to grant Subclass 856 visas to the applicants on the basis that the first-named applicant (the applicant) did not have vocational English. The delegate also found that there were no exceptional circumstances such that the language requirement should be waived. The applicant gave evidence at the Tribunal hearing and noted that he had obtained qualifications and experience in Turkey before he and his family came to Australia in 2002. He gave evidence that he had worked for his present employers in Australia as a pastry cook since 2004 and that he speaks only English at his workplace. In 2008 he achieved an overall band score of 3.0 in an IELTS test. He also advised the Tribunal that he had completed an English course at TAFE in 2009, and that he practiced English at home with his teenage daughter. The applicant’s employers gave evidence that the applicant is a good worker and a very talented pastry cook who supervises other employees and whose English language ability had never presented a problem. The employers noted that they had recently opened a second patisserie which would probably need to close if the applicant were to leave, as they had found it very difficult to find qualified staff from within Australia. They submitted that the applicant had already trained one apprentice and that the business intended to take on another apprentice to work under him this year. The representative noted that there was a critical shortage of pastry cooks in Victoria and that the applicant was a qualified trainer without whom the business would not be able to make sufficient products for both shops. He stated that if the second shop were to close, this would deprive a number of Australians of their jobs.

Held: Decision under review set aside.

At the hearing, the Tribunal found the applicant to be an articulate and intelligent interlocutor and it had no difficulties communicating with him in English. The Tribunal accepted that the applicant had made consistent efforts since arriving in Australia to improve his English and that he had made substantial progress in this endeavour. The Tribunal also noted that at the hearing, when the applicant was asked to read certain excerpts from a document, he was able to demonstrate a sound level of comprehension at a relatively sophisticated level. The Tribunal took into account relevant Departmental policy advice, as well as the evidence provided at hearing when considering whether exceptional circumstances existed. It found that overall the first-named applicant was able to work effectively and safely in the workplace. The Tribunal accepted that the applicant worked exclusively in the English language and that he had no difficulty communicating with his employer, his fellow employees and outside suppliers. The Tribunal also accepted the employers’ evidence that they had tried to recruit other pastry cooks, however, there was a shortage of them in Victoria. The Tribunal found that the applicant had made, and will continue to make, a valuable contribution to training Australian citizens in pastry cooking and that he is an integral employee in a small family business which would be severely disadvantaged were he to leave Australia. Having taken all of the evidence into account, the Tribunal found that the first-named applicant and his employers had demonstrated that exceptional circumstances existed in this case and that the language requirement should be waived. Accordingly, the Tribunal found that the applicants satisfied the requirements of cl.856.213(c)(ii), and therefore satisfied cl.856.213(c) of the Regulations.

0804506
22 January 2010, Melbourne
Mr George Haddad, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 856 – EMPLOYER NOMINATION SCHEME – CL.856.213 –- A delegate of the Minister refused the visa application on the basis that the applicant did not satisfy cl.856.213. The delegate found that the applicant did not have vocational English and was not satisfied that exceptional circumstances applied. The applicant’s migration agent provided submissions requesting that the English language requirement be waived and the application be considered under exceptional circumstances. These submissions addressed the regulatory requirements, noting that the applicant had already been employed with the nominator as a cook for two years; the nominator had previously advertised unsuccessfully locally, and the applicant was very well able to train and transfer his skills to colleagues by means of practical demonstration. The applicant’s agent also submitted that the nominator had faced great difficulties in recruiting and retaining a suitably qualified Indian cook as the market demand was very high. Also provided to the Tribunal were three Statutory Declarations from people who had dealt with the applicant on a professional basis, vouching for his level of English. At the Tribunal hearing the applicant submitted that he had some difficulty speaking English but he knew the work that was required of him and he had managed to communicate with people in the workplace. The applicant subsequently supplied IELTS test results indicating an overall band score of 3.0 to the Tribunal.

Held: Decision under review affirmed.

The Tribunal referred to the definition of vocational English in regulation 1.15B and, having regard to the IELTS test results provided with an overall band score of 3.0, found that the applicant did not meet the requirement. The Tribunal then went on to consider whether exceptional circumstances existed that would warrant the waiver of the English language requirements, referring to both the relevant policy in the departmental Procedures Advice Manual and the submissions of the applicant’s migration agent. Having regard to the requirement to perform the range of duties listed for this position by his sponsor, including complying with occupational health and safety issues, the Tribunal did not accept that the position of cook was one for which vocational English was not essential. Nor did it accept that the applicant would be able to transfer his skills to Australian employees who did not speak his first language. The Tribunal also had regard to the submission by the migration agent and the oral submissions by the sponsor that efforts had been made to recruit a cook locally but that it was not practical to advertise overseas. As the Tribunal noted that such efforts comprised only three photocopies of advertisements, it did not accept that significant effort had been made to recruit a suitably qualified person who had vocational English to fill the position, notwithstanding the high market demand for specialised cooks. Thus, having considered all of the evidence and arguments submitted, the Tribunal was not satisfied that exceptional circumstances applied in this case. Further, as the applicant did not have vocational English within the meaning of the Regulations, the Tribunal found that he did not meet the requirement of cl.856.213(c)(ii)(B) and could not therefore meet cl.856.213.

Australian Employer Sponsorship Visa - Temporary

1002492
5 August 2010, Melbourne
Mr P Tyler, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 – BUSINESS – LONG STAY –  CANCELLATION – S.116(1) – CONDITION 8107 – CEASED EMPLOYMENT WITH SPONSOR – A delegate of the Minister cancelled the Australian immigration visa applicant’s Subclass 457 visa as the visa applicant had ceased employment with his then sponsor, and was therefore unable to comply with visa condition 8107. The Australian immigration visa applicant was a Fijian national, who had  previously been working in New Zealand and had given up that position on the basis of an offer of employment in Australia. He claimed that six weeks after arriving in Australia, his employment was terminated because the sponsor had insufficient work. The Australian immigration visa applicant claimed that he had tried to find another employer but was unable to do so before the Department cancelled his Subclass 457 visa, and that this decision had subsequently been overturned by the MRT on review. He claimed that he found another employer willing to sponsor him, but unfortunately this company was not approved as a business sponsor. The Department then sent him a letter by email to his sister’s computer inviting him to an interview to discuss a further cancellation however the Australian immigration visa applicant claimed he did not receive this letter due to the computer having a virus and his visa was subsequently cancelled.

The Australian immigration visa applicant claimed that in the meantime he had obtained further employment with another company who was willing to sponsor him, and that this new employer contacted the Department in relation to the Australian immigration visa applicant’s status, only to be told that his Subclass 457 visa had been cancelled and that he did not have permission to work. The business, which was already an approved sponsor, then lodged a nomination on the applicant’s behalf which was currently under consideration by the Department. The Australian immigration visa applicant submitted that it would have been reasonable for the Department to attempt to contact him once more by telephone or post before they cancelled his visa, given that he had always acted appropriately and co-operated with them in the past, and that he had been actively pursuing alternate employment. The Australian immigration visa applicant’s employer appeared before the Tribunal and gave evidence that the applicant was of good character, his work was of an exemplary nature and that the company was very keen to employ him on a full-time basis.

Held: Decision under review set aside.

The Tribunal noted that it must first decide whether the grounds for cancellation under s.116 identified by the delegate had been made out, with the relevant condition being identified as condition 8107, which required the visa holder not to cease to be employed with the employer in relation to which the Australian visa was granted. Based on the Australian immigration visa applicant’s oral evidence, the Tribunal was satisfied that he had ceased to be employed by the sponsor, and had therefore not complied with this condition of the visa. The Tribunal then considered whether to exercise its discretion to cancel the applicant’s visa, having regard to the relevant circumstances and the Department’s policy guidelines.

The Tribunal noted that the purpose of the Australian immigration visa applicant’s travel to Australia was to work as a diesel mechanic, and that he continued to work in this profession in his new employment. It also found that the loss of the Australian immigration visa applicant’s initial job had been traumatic and had caused him significant hardship, given that he had accepted the position in good faith only to be terminated after six weeks due to economic circumstances.

The Tribunal found that the applicant had made significant efforts to seek employment after this position had ceased, and that he remained in regular contact with the Department concerning his circumstances. It further found that the applicant’s past and present behaviour towards the Department had been ‘exemplary’, noting that they had only commenced the cancellation process after he had contacted them, and that he was a highly credible and cooperative witness. The Tribunal accepted the applicant’s evidence that he did not receive the cancellation notice from the Department due to problems being experienced with his sister’s computer, and that the delegate did not make any other attempts to contact him. Considering the circumstances as a whole, the Tribunal concluded that the Australian visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 457 visa.

1002102
19 August 2010, Melbourne
Ms N Burns, Member

BUSINESS NOMINATION – OCCUPATIONAL TRAINING PROGRAM – R.2.72 – STRUCTURED WORKPLACE TRAINING – A delegate of the Minister refused to grant the review applicant, Ocean Promotion (Australia) P/L, (the Company), a nomination approval as she was not satisfied that the proposed training was “structured workplace training specifically tailored to meet the training needs of the nominee”.

The delegate was concerned that the training program reflected more work than training and would not lead to enhanced skills and that 12 months was too long for the training to be considered ‘intensive’. The review applicant was a registered company trading as Mariana Hardwick Emporium, which specialised in creating custom-made wedding gowns. The company applied for an occupational trainee nomination for the nominee in this case. The nominated position was for a General Clothing Tradesperson. The nominee spent one year training in Australia with Mariana Hardwick Emporium from April 2008, on a Subclass 416 (Special Program) visa. This initiative was facilitated by Lifestart Foundation, an accredited charity organisation that supports skills training for marginal youth from Vietnam, under the auspices of a DIAC Cross Cultural Mentoring Program. This nomination was made in order for the nominee to undertake a further year of training which was considered necessary by Mariana Hardwick for the nominee to gain the high level of skills and knowledge required to make high-quality wedding gowns and for the nominee to teach others to do so on her return to Vietnam.

Ms Hardwick provided evidence to the Tribunal that the training program had been developed in consultation with industry training experts and was based on a training needs analysis. The aim was to train nominees with sufficient skills to return to Vietnam to manufacture haute couture garments, which indicated that the program was highly intensive. Ms Hardwick advised that the nominee had had no prior dressmaking experience however she underwent six months training prior to coming to Australia in April 2008. This was necessary as the level of teaching quality in Vietnam was very poor and the nominee’s skills on arrival were minimal. After realising that the nominee would not be able to gain the level of competency required in one year, Ms Hardwick spoke with DIAC about options for another years training.

The representative claimed that the training modules they have now presented to the Tribunal are more detailed and are based on a comprehensive training needs analysis undertaken when the nominee first arrived in Australia, then again after six months of training, and after a year. At the end of the year, it was clear that she had developed certain skills to produce basic garments but she required more supervised training to hone and strengthen her skills to be able to make high-quality wedding gowns. The representative argued that the work was not repetitious because of the variety of dress styles created and the different types of fabrics used.

Mr Long, an industry training expert, explained to the Tribunal the rationale behind the training plan for the second year to ensure the nominee strengthens and deepens her dressmaking skills. He said the challenge would be for the nominee to gain an understanding of quality and body type, to manage the idiosyncrasies of bespoke garments, the behaviour of fabrics, and to ensure the quality of the finished product. He claimed that such skills need to be gained through observation and demonstration as well as learner-directed training.

Held: Decision under review set aside.

The Tribunal considered Ms Hardwick’s evidence submitting that whilst there are a plethora of dressmakers in places like Hoi An – the dressmaking capital of Vietnam – the quality was poor. Based on independent reviews, the Tribunal accepted the high quality nature of Ms Hardwick’s company’s products and standards and the Tribunal was satisfied that the nominated occupational training was not available in Vietnam.

A letter of support provided by the Australian Ambassador to Vietnam explicitly indicated that this training would promote capacity building in Vietnam. The Tribunal was therefore satisfied that the nominated occupational training was supported by a government agency in Australia or a government agency in the home country of the identified visa holder or applicant (Vietnam).

The Tribunal considered that Ms Hardwick, supported by one of her company’s in-house trainers and an industry training expert, was able to clearly demonstrate the rationale for a further 12 month training program for the nominee. It was claimed that this would enable the nominee to gain the requisite skills to not only independently create high quality wedding gowns, but to pass on her skills and knowledge to others on her return to Vietnam. The Tribunal found the explanation provided at the hearing that the supervised training needed to be complemented with at least the same amount of time for the nominee to apply those skills (i.e. learner-directed training) entirely plausible and a sound approach. Whilst some of the tasks would inevitably involve a certain amount of repetition, the fact that the business created custom-fitted, unique designs meant that the nominee would be given a variety of challenging tasks, which would increase in complexity as she worked with different fabrics and styles. The Tribunal was therefore satisfied that the tasks to be completed in the proposed training are consistent with the objectives and timeframe of the program. It was also satisfied that the proposed training is appropriate for the current skill level of the nominated trainee and that the training will give her the additional or enhanced skills in the occupation to which the training relates.

The Tribunal noted that the training program was developed specifically with the nominee in mind, given it was based on analysis of the nominee’s training needs and skill level from her training in Australia with Mariana Hardwick Emporium from April 2008 to April 2009. For these reasons, the Tribunal was satisfied that the nominated occupational training programme was structured, workplace-based, specifically tailored to the nominee, and will give the nominee additional or enhanced skills in dressmaking and training of other dressmakers. Accordingly, the Tribunal set aside the decision not to approve the nomination and substituted a decision that the nomination was approved.

0805389
20 August 2010, Melbourne
Mr G Haddad, Member

STANDARD BUSINESS SPONSOR – NOMINATION REFUSAL – TASKS OF ACTIVITY RELATE TO A POSITION NECESSARY TO THE OPERATION OF THE BUSINESS – R.2.72 – OCCUPATION SPECIFIED BY THE MINISTER IN THE RELEVANT INSTRUMENT – The sponsorship and nomination form submitted to the Department confirmed that the applicant, Andritz Pty Ltd (Andritz), was an approved Standard Business Sponsor however, a delegate of the Minister refused to approve the Australian immigration visa applicant’s nomination as he was not satisfied that the nominated activity of “Nanny” related to the services of the applicant business. The delegate referred to the website of the applicant company, Andrtiz Pty Ltd, which described the company’s focus on the provision of services and sales of customised plant operations in industries such as pulp and paper.

The registered migration agent submitted that Andritz had been contracted to undertake a project as part of a pulp mill project in Tasmania and that Andritz had successfully sponsored Ms Theresa Olsen on a Subclass 457 visa in the critical role of Construction Project Manager. Therefore, the nominated occupation of ‘Nanny’ was for the benefit of Ms Olsen’s children who had accompanied Ms Olsen to Tasmania, and employing a nanny was critical to her role with Andritz. The Tribunal wrote to the Australian immigration visa applicant referring to amendments to the Regulations which came into effect on 14 September 2009, and which introduced r.2.72 to replace r.1.20H. In light of the changes to the Regulations, the  Australian immigration visa applicant was invited to provide information about the nominated occupation of ‘Nanny’ and whether it was a position with the business or an occupation specified by the Minister in the relevant instrument in writing. The response argued that the changes made on 14 September 2009 did not apply. A representative of Andritz stated at the Tribunal hearing that the nomination for the position of ‘Nanny’ was to care for the childrens distance education in their own first language of Portugese, and that this was critical to Ms Olsen’s role in the Tasmanian project. The  Australian immigration visa applicant’s migration agent subsequently submitted that there were exceptional and unique circumstances in respect of this matter that would make it appropriate to refer the matter to the Minister under s.351 of the Act.

Held: Decision under review affirmed.

The Tribunal found that the nominated occupation of ‘Nanny’ did not correspond to an occupation listed in the relevant instrument in writing for this purpose. The Tribunal had regard to, but did not accept, the migration agent’s argument that the changes of 14 September 2009 did not apply so as to remove the availability of the nominated occupation for the purpose of an application made prior to this date. The Tribunal noted that the amendments make clear that the changes applied to applications not finally determined. Accordingly, the Tribunal found that r.2.72(10)(a) was not met. It noted that failure to meet this requirement meant that the applicant could not meet r.2.72 and the nomination could not be approved.

The Tribunal noted that the Tasmanian Pulp Mill project was valued at approximately $200 million, and was expected to add $6.7 billion to the Tasmanian economy and create hundreds of jobs. The Tribunal also found the submission from the  Australian immigratio visa applicant’s migration agent, which highlighted the connection between the role of the nanny and the construction project manager as part of a larger project involving significant investments and was expected to produce economic benefits to the Tasmanian economy, to be persuasive.

It therefore formed the view that the circumstances of the case highlight the benefit of the availability of the Ministerial discretion under s.351 of the Act and supported a referral of the matter to the Minister. Nevertheless, as the Tribunal was not satisfied that the  Australian immigration visa applicant met the applicable criteria prescribed in r.2.72 of the Regulations for the nomination to be approved, it affirmed the decision under review.

0902056
30 April 2010, Melbourne
Mr D Thomas, Member

STANDARD BUSINESS SPONSOR – CANCELLATION – S137B – APPROVAL OF BUSINESS SPONSOR – MINIMUM SALARY LEVEL – A delegate of the Minister took action under section 137B to cancel the sponsor’s (PVC Windows Australia Pty Ltd) approval as a standard business sponsor as he found three Subclass 457 sponsorship breaches had been substantiated. The delegate also barred the sponsor from making applications for approval as a sponsor for five years, the subject of a separate review. The sponsor notified the Department that one of their Subclass 457 visa holders (Mr Sari) had ceased employment. Mr Sari provided pay slips and time cards showing that he was paid $15.00 per hour for overtime, he was paid cash in hand and no tax deductions were made. He claimed that the rate of $15.00 per hour for overtime was in contradiction of his contract with the sponsor and the gazetted Minimum Salary Level. A Director of PVC Windows was interviewed by the Department, and provided salary information. The Department, with officers of the Workplace Ombudsman, visited the sponsor’s premises and interviewed the Director and another Subclass 457 visa holder. A breach notice was issued to the sponsor stating that false or incorrect information had been given to the Department which did not correspond with information provided by Mr Sari or the company Director during a telephone interview. Mr Sari also made allegations to the Workplace Ombudsman regarding his overtime payments and his dismissal. Following an investigation, the Ombudsman determined that PVC Windows had breached the award by failing to pay Mr Sari his accrued pro rata annual leave on termination of employment and the correct penalty rates for weekend work, overtime work and work on public holidays. The delegate noted that the company’s failure to make tax deductions was not a breach of the relevant regulation but referred it to the Australian Taxation Office. The delegate found that three breaches were substantiated; failure to comply with laws relating to workplace relations, failure to comply with minimum salary level payments and the provision of false information. At the Tribunal hearing, the sponsor agreed that the breaches identified by the Department had occurred and that the Ombudsman’s investigation had reached its conclusion and all monies owed to Mr Sari had been paid. The Director explained that when he first approached the two visa holders, they agreed to a particular salary and he would assist by paying their air fares and other expenses. However, he later found that he was required to pay a minimum salary which was higher than the agreed salary. He claimed he paid for some of their expenses and they came to an ‘arrangement’ to adjust the salary and hours, however, he terminated Mr Sari’s employment around September 2008. Evidence was also taken from the other Subclass 457 holder who claimed he had no such problems and that he was still employed by the business. He said the business paid his rent and he typically worked 38 hours on ordinary time and two hours overtime per week. He claimed that he was paid about $50,000 pa. Documents later received by the Tribunal indicated his total income was $44,001.

Held: Decision under review set aside.

The Tribunal noted that the delegate had found that three breaches in respect of the Subclass 457 sponsorships were substantiated and that sanctions were imposed, taking the form of the imposition of a bar on further sponsorships for a period of five years and cancelling the sponsor’s approval as a business sponsor under section 137B. The sponsorship bar under section 140L(e) was the subject of a separate application for review. In relation to the cancellation of the sponsorship under section 137B, the Tribunal found that Section 137B was repealed by Item 9 of the Migration Legislation Amendment (Workers Protection) Act 2008, together with the then existing Subdivision GA of Division 3. The Tribunal further noted that Subdivision GA had been inserted prior to the insertion of Division 3A, and was repealed because it was no longer necessary to have a cancellation process and powers for business sponsors in that Subdivision. It found that a Subclass 457 visa was a prescribed visa for the purposes of Division 3A: r.2.56, whereas previously it was not, and that the repeal took effect from 14 September 2009. However, the Tribunal found that there was no direct reference to the power to cancel the approval of a person as a business sponsor under s.137B. Accordingly, the Tribunal noted that no equivalent provision existed from the date of repeal. Therefore, the Tribunal found that, in the absence of transitional provisions relating to  the cancellation of powers under s.137B, it had no option but to set aside the cancellation and substitute a decision that the sponsorship not be cancelled.

0900256
9 April 2010, Brisbane
Mr G Cranwell, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 – BUSINESS LONG STAY – CL.457.211 – CRITERION 3004 – SUBSTANTIVE VISA NOT HELD AT TIME OF APPLICATION – A delegate of the Minister refused to grant the applicant a Class UC visa on the basis that the applicant did not satisfy cl.457.211 of the Regulations because he did not hold a substantive visa at the time of application and he did not meet Schedule 3 criteria 3003, 3004 and 3005. The applicant appeared at a hearing before the Tribunal to give evidence and present arguments. He conceded that he did not hold a substantive visa at the time of application and explained that he had been under the impression that his employer had lodged a sponsorship application and that this would be sufficient to enable him to remain in Australia. The applicant claimed that he had been unaware that he had to lodge his own visa application. He stated that he was uninformed and had left matters to the business owner. He acknowledged that he should have done more research. In relation to compelling reasons for the grant of the visa, the applicant stated that he was a hard worker and that this would benefit his employer. He also referred to the fact that he had been in a serious relationship with an Australian citizen for three years, and that they had lived together for two of those years. The applicant stated that, as far as he was aware, he had substantially complied with the conditions of all previous visas, and that he intended to comply with the conditions of the Subclass 457 visa if granted.

Held: Decision under review affirmed

The Tribunal explained Schedule 3 criterion 3004 and the requirement that the Minister (or Tribunal) be satisfied that he was not the holder of a substantive visa at the time of application because of factors beyond his control and that there were compelling reasons which exist for granting the visa sought. The Tribunal found that the applicant was in Australia and that he did not hold a substantive visa at the time of application. Furthermore, the Tribunal took the view that checking whether a visa application had been lodged and whether a visa had been granted, were matters for which the applicant had responsibility and which were within his control. The Tribunal was therefore not satisfied that the applicant was not the holder of a substantive visa because of factors beyond his control and found that cl.3004(c) was not satisfied. As the Tribunal found that cl.3004(c) was not satisfied, it was unnecessary for the Tribunal to consider the application of cl.3004(d) and whether there were compelling circumstances for granting the visa. The Tribunal observed in passing, however, that it had some sympathy for the position in which the applicant found himself in relation to his partner and their longstanding relationship. Nonetheless, as the applicant did not meet Schedule 3 criterion 3004, the Tribunal found that he did not meet the requirements of cl.457.211 of the Regulations and the application for review was affirmed.

0806538
22 February 2010, Sydney
Mr R Derewlany, Member

EMPLOYER NOMINATION (MIGRANT) (CLASS AN) – SUBCLASS 121 – (EMPLOYER NOMINATION SCHEME) – CL.121.211 – OVER 45 YEARS OF AGE – EXCEPTIONAL CIRCUMSTANCES – A delegate of the Minister refused to grant the applicant a Subclass 121 visa as he did not satisfy cl.121.211 of the Regulations because he was over 45 years of age at the time of application and the delegate was not satisfied that exceptional circumstances applied in which to waive the age requirement. The visa applicant was aged 50 at the time of application. On learning of the decision to refuse the applicant's permanent residence application the applicant’s employer, Maccaferri Australia Pty Ltd, lodged an application for a Subclass 457 Long Stay Business visa for the applicant. This application was approved in October 2008 and the applicant arrived in Australia in March 2009 and commenced work as a Civil Engineering Technician with the company immediately. Following a "settling in" period and a review of Maccaferri Australia's direction and structure, the applicant's title was changed to National Technical Manager in April 2009. In support of the review application, the Tribunal received a supporting letter from the Chairman of Maccaferri Australia Pty Ltd stating that the applicant’s position of National Technical Manager was a key role internally as it supported the drive to introduce the three technologies to the Maccaferri Australia Pty Ltd business and the broader Australian engineering community. He further claimed that, due to the applicant’s significant experience in the company’s specialised product range over a number of years and his success in his senior role with the group in South Africa, the 45 year age limit should be waived. It was further claimed that once the applicant’s services as a senior technical expert were secured, this allowed the company to initiate other actions including opening two new sales branches in north Queensland, recruiting a mid-level technical resource in Sydney and committing to Officine Maccaferri, who own 15% of Maccaferri Australia, about their actions to ensure growth thereby giving Officine Maccaferri confidence to proceed with their investment in new manufacturing locations. Evidence of Maccaferri Australia’s unsuccessful efforts to recruit civil engineers and civil engineering technicians with the appropriate expertise locally was also provided.

Held: Decision under review set aside.

The Tribunal took into account the policy guidelines on the issue of ‘exceptional circumstances’ in respect of age. The Tribunal also received substantial additional evidence regarding the highly specialized nature of the nominated position, the visa applicant’s skills and experience, and the difficulty the company has had and continues to have in filling such a position (and other related positions) from the local and international market. The Tribunal found the additional evidence from the Chairman of the review applicant company, the Managing Director, and the visa applicant about the position and its place in the company’s operations, to be comprehensive and very persuasive. Based on this evidence, the Tribunal found that the additional evidence established that there were exceptional circumstances in this case, due to the highly specialized nature of the position, combining technical, business and mentoring/training/development roles, and the high level skills and significant experience required to perform the roles of the position. The Tribunal was satisfied that the demands and requirements of the position were so specialized, unusual and extraordinary that the position would normally require a person with skills and experience acquired over a number of years, and that it would be extremely difficult, if not impossible, for Maccaferri Australia Pty Ltd to find a suitably qualified and experienced person of a younger age to fill the position. In reaching this conclusion, the Tribunal also had regard to factors such as the remuneration for the position and the evidence of the contribution the visa applicant had made to the company since his arrival in Australia as the holder of a Subclass 457 visa; although that had occurred after the date of application, the Tribunal considered the evidence further supported a finding that there were exceptional circumstances at the time of application relating to the age requirement. Accordingly, the Tribunal was satisfied that exceptional circumstances applied in this case with respect to the age requirement and the Tribunal therefore found that the visa applicant satisfied the requirements of cl.121.211(c)(i) of the Regulations

0909479
19 February 2010, Melbourne
Mr G Haddad, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 – BUSINESS (LONG STAY) – CANCELLATION S.116 – CONDITION 8107 – EMPLOYMENT CEASED – A delegate of the Minister cancelled the applicant’s Subclass 457 visa on the basis that the applicant had ceased working for his sponsoring employer. The applicant claimed that from the outset he was given duties to perform that were different from the duties originally discussed for the position. He claimed that he was mistreated, humiliated and abused verbally by his direct manager who is his niece. He further claimed that at times he had no choice but to work very long hours. He was provided with accommodation on the work site but he preferred to live elsewhere however his employer did not help him to find other accommodation. He claimed he spoke with his wife and raised his concerns with the manager’s husband which led to arguments and in June 2009, he decided to leave the job. The applicant stated that he filed a complaint with the Fair Work Ombudsman to seek compensation and that he sought assistance from a Filipino advocacy group. He claimed he had received an offer by his previous employer in the sum of $14 000 to be paid in instalments and he continues to pursue the claim for compensation. He is concerned that he may not be able to continue the claim if he were to return to the Philippines and he continues to look for another employer to sponsor him. At the Tribunal hearing, the applicant indicated that he understood the circumstances which led to the cancellation of his visa and he confirmed that he understood that he had breached condition 8107. In relation to the hardship he and/or members of his family would suffer as a result of the visa cancellation, the applicant stated that he had accepted the offer of work in Australia because he saw it as a good opportunity to provide a better future for his family. If he were to return to the Philippines as a result of the decision to cancel his visa, he would return without any money. He claimed he had been trying to find another job in Australia but it had been very difficult to find a job; and it would be especially difficult to find one in the Philippines.

Held: Decision under review affirmed

On the basis of the applicant’s statutory declaration and his confirmation that he had ceased to be employed by the employer in relation to which the visa was granted, the Tribunal was satisfied that the applicant had not complied with condition 8107 of his visa and, therefore, the ground for cancellation in s.116(1)(b) existed. The Tribunal next considered whether to exercise its discretion to cancel the applicant’s visa. The Tribunal noted that the applicant had suffered an unfortunate experience of dashed hopes and unmet expectations and it was apparent from the Department’s file that he had gained the sympathy of Departmental officers and also of the Tribunal. However, having regard to the purpose of the Subclass 457 visa, to assist Australian businesses to recruit skilled labour from overseas because of a shortage in the domestic labour market, taken together with the evidence that the applicant had been trying without success for longer than seven months to find a sponsor to employ him for his skills, the Tribunal was not satisfied that it was appropriate to exercise its discretion to set aside the decision. In the circumstances of this case, there appeared not to be a valid reason to re-instate a Subclass 457 Business Long Stay visa to the applicant only so the applicant could remain unemployed and search for an employer in Australia. Considering the circumstances as a whole, the Tribunal concluded that the visa should remain cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant’s Subclass 457 visa.

0807267
12 January 2010, Sydney
Mr J Duignan, Member

STANDARD BUSINESS SPONSOR – TRAINING BENCHMARKS – R.2.59D – The applicants operate a business trading as Garlic House, which is primarily involved in the packing and distribution of garlic within Australia. They have sought approval of their business as a standard business sponsor for the purpose of sponsoring a person to assist the business in a sales and marketing role. The applicants provided financial records for the business to the Department, but did not respond to requests for additional information in respect of training activities. Accordingly, the delegate was not satisfied that r.1.20(2)(c) was met and as a result the delegate refused approval. At the Tribunal hearing, the proprietor of the business gave evidence that it had been operating as a family business for 13 years. The main business involved peeling and selling garlic and, in addition, they import products from Korea and China and sell these in Australia. The applicant initially claimed that the business had never employed any person other than himself, his wife and his sons. In respect of training, he explained that the business did training in starting a business and marketing. He claimed that one of his sons did this training and was taught through private lessons. The proprietor claimed he spent some money training people in China, but never in Australia. He explained that the business was small and they could not start training people without knowing an appropriate trainer and that the business needed the proposed sponsored employee because he needed people who were experienced in speaking Chinese, Korean and English. In addition to this, he needed someone who could “do sales well”. The proprietor claimed that he came into contact with the proposed sponsored employee when the business employed him for three months in 2007. From this, he got to know that he spoke Chinese and Korean well and he was a reliable and credible man. The difficulty in considering training for the proposed sponsored employee was because he was not an Australian citizen or permanent resident. The proprietor claimed it was difficult to find an employee with the required skills and he hoped the application would be successful. Also provided was a copy of an agreement between the Australian College of Management, a registered training organisation, and the business for the training of the nominated existing employee.

Held: Decision under review affirmed.

At hearing, the Tribunal discussed the impact of the training benchmarks and that they exclude the training activities of principals of the business or their family members. The Tribunal found that the only expenditure which was identified and could be relied upon for the purpose of calculating whether the business met the training benchmark was specifically excluded from that calculation through the relevant instrument. The training agreement in respect of the nominated existing employee could not be counted as he was a family member of the two principals of the business. Furthermore, the Tribunal found that the only other ongoing employee was also a family member of the two principals. In the case of the proposed sponsored employee, the Tribunal noted that he was not an Australian citizen or permanent resident when any of his training occurred or at the present time, for otherwise, the application in relation to his employment would not be necessary. He was also only employed for a very short period some two years ago. Excluding that expenditure which could not be relied upon, the Tribunal found that there had been no other recent expenditure which was otherwise known which could be counted towards showing expenditure on training to the level required by the benchmark. The Tribunal noted that the business had been trading for well in excess of 12 months and had a payroll by virtue of payments to the principals and their family members. There was no identifiable expenditure which could be relied upon and therefore, the Tribunal did not believe that there had been recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training. Neither had it been submitted to the Tribunal that the business had made any relevant contribution to any industry training fund. This being the case, it was the view of the Tribunal that approval under s.120E should not be granted. Accordingly, the Tribunal affirmed the decision not to approve the applicant as a standard business sponsor.

Related Australian Immigration Appeals Articles:

Australian Immigration: Appeal Decisions 2010

• Australian Immigration: Family Visas - 2010
• Australian Immigration: Partner Visas - 2010
• Australian Immigration: Student Visas - 2010
• Other Australian Immigration Visas - 2010

Australian Immigration: Appeal Decisions 2009

• Australian Immigration: Business & Skills Visas - 2009
• Australian Immigration: Family Visas - 2009
• Australian Immigration: Partner Visas - 2009
• Australian Immigration: Student Visas - 2009
• Other Australian Immigration Visas - 2009

Australian Immigration: Appeal Decisions 2008 - coming soon

• Australian Immigration: Business & Skills Visas
• Australian Immigration: Family Visas
• Australian Immigration: Partner Visas
• Australian Immigratio: Student Visas
• Other Australian Immigration Visas

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