Migration Review Tribunal Decision Summaries

Australian Immigration -  Business and Skilled Visas

Australian Visas On this Page:

• Australian Immigration Skilled Visas
• Australian Immigration Business Visas
• Australian Immigration Employer Sponsorship Visas
• Australian Immigration Employer Sponsorship - Temporary

Australian Skilled Visas

0805292
16 January 2009, Sydney
Mr D O’Brien, Principal Member

SKILLED (RESIDENCE) (CLASS VB) – SUBCLASS 885 – CL.885.213(b) – R.1.15C – COMPETENT ENGLISH – TEST CONDUCTED NOT MORE THAN 2 YEARS BEFORE THE DAY ON WHICH THE APPLICATION WAS LODGED – A delegate of the Minister for Immigration and Citizenship refused the application for a Skilled (Residence) (Class VB) Subclass 885 Skilled Independent visa because the Australian immigration visa applicant had not demonstrated a competent level of English as required by cl.885.213(b) of Schedule 2 to the Migration Regulations (the Regulations). Relevantly, r.1.15C of the Regulations provided that a person had competent English if the person had achieved, in a test conducted not more than 2 years before the day on which the application was lodged, an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening. The Australian immigration visa applicant had completed an IELTS test prior to the application but had achieved a score of 5 for writing. He undertook further IELTS tests after the application was lodged and, in one more recent test, scored higher than 6 for each of the 4 components. The Australian immigration visa applicant’s representative submitted that the most recent IELTS test met the requirements of r.1.15C. It was submitted that r.1.15C was to be construed as permitting an IELTS test conducted later than the day on which the application was lodged. The submissions suggested that the Tribunal should take an expansive view of the provision given its ambiguity and the Australian immigration visa applicant’s circumstances.

Held: Decision under review affirmed.

The Tribunal found that, in the most recent IELTS test, the Australian immigration visa applicant obtained scores of at least 6 in each of the test components. However, the Tribunal was of the view that the Australian immigration visa applicant was unable to rely on these results to evidence competent English because the test was not conducted not more that 2 years before the day on which the application was lodged, rather it was conducted after the application was lodged. In the Tribunal’s view, the wording of the requirement was clear and required the test to be conducted within a specified period before the application was made. The fact that competent English was a time of application requirement also indicated that the test must have been conducted before the application was made. There was no evidence before the Tribunal that the Australian immigration visa applicant had achieved a score of at least 6 for each of the test components in a test that met the requirements. The Tribunal was not satisfied that the Australian immigration visa applicant met r.1.15C and the requirements of cl.885.213(b).

0800233
21 January 2009, Melbourne
Mr T Connellan, Member

SKILLED – DESIGNATED PROVISIONAL (CLASS UZ) – SUBCLASS 496 – CL.496.215 – EMPLOYMENT IN A SKILLED OCCUPATION – A delegate of the Minister for Immigration and Citizenship refused the application for a Skilled-Designated Provisional (Class UZ) Subclass 496 visa on the basis that the Australian immigration visa applicant did not satisfy cl.496.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the Australian immigration visa applicant was employed in the skilled occupation of ‘Office Manager’, because when an officer at the Australian High Commission called the Australian immigration visa applicant’s previous employer, a manager was reported stating that the Australian immigration visa applicant had not worked for the organisation for the relevant claimed period, had not worked in the nominated occupation, and he did not sign the reference letter. Before the Tribunal, the Australian immigration visa applicant provided his bank records and various references, including a statutory declaration from the same manager who was reportedly provided adverse information. The same manager also gave oral evidence at the Tribunal’s hearing that the Australian immigration visa applicant was employed in the position of Office Manager - Accounts for the claimed period and he had signed the reference letter for the Australian immigration visa applicant in that position.

Held: Decision under review set aside.

The Tribunal accepted the evidence given to it by the manager from the Australian immigration visa applicant’s previous employer. The Tribunal found that the Australian immigration visa applicant satisfied the criteria specified in cl.496.215, in that, for the required period he was employed in a role that satisfied the description of ‘Office Manager’. It found that the Australian immigration visa applicant performed duties that were in general alignment with the tasks specified for the position of Office Manager in ASCO Code 32911-11. Accordingly, the Tribunal found that the Australian immigration visa applicant met cl.496.215.

0800623
12 February 2009, Melbourne
Dr A Gregory, Member

SKILLED-AUSTRALIAN-SPONSORED (MIGRANT) (CLASS BQ) – SUBCLASS 139 – CL.139.217 – EMPLOYED IN A SKILLED OCCUPATION – A delegate of the Minister for Immigration and Citizenship refused to grant the primary visa Australian immigration visa applicant, her spouse and child Skilled – Australian-Sponsored (Migrant) (Class BQ) visas. The delegate found the primary visa Australian immigration visa applicant had not been employed in a skilled occupation for the requisite period and so did not satisfy cl.139.217 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Although the primary visa Australian immigration visa applicant nominated the skilled occupation of ‘Financial Dealers and Brokers’, she claimed to have work experience as a ‘Hairdresser’. She claimed that she was employed in a hair salon in Iran between 1991 and 2005. Officers from the Australian High Commission in Iran visited the salon and reported that the premises was a small room in a residential flat and displayed no signage, the claimed business had not been registered with the relevant hairdressing guild, and there was no telephone number listed for the business. They identified discrepancies in the work reference regarding the periods of employment, hours worked and remuneration and the business owner was unable to provide evidence to confirm the duties stated in the work reference. The review Australian immigration visa applicant stated that hairdressers in Iran did not have signage or register because the government was harsh on hairdressers and fashion. She claimed that most of the hairdressing work was done from private homes and it was easier not to have a sign otherwise you could be targeted and subject to inspections and bribery by officials. The review Australian immigration visa applicant stated that the primary visa Australian immigration visa applicant sat for an examination in hairdressing in Australia and passed it very well.

Held: Decision under review affirmed.

The Tribunal found the evidence from the primary visa Australian immigration visa applicant’s employer to be conflicting and not reliable. It noted the visa Australian immigration visa applicant did not provide any other evidence to support her work experience as a hairdresser or any other work experience as a financial dealer or broker. As such, the Tribunal found that there was insufficient evidence to support the claims of employment experience. The Tribunal was not satisfied that the visa Australian immigration visa applicant had been employed in a skilled occupation for the requisite period for cl.139.217(1). It further found that the primary visa Australian immigration visa applicant did not obtain the necessary education qualifications specified in cl.139.217(2) and therefore did not meet cl.139.217. Accordingly, the Tribunal found that the visa Australian immigration visa applicants were not entitled to the grant of Skilled – Australian-Sponsored (Migrant) (Class BQ) visas.

0800833
12 February 2009, Sydney
Mr T Delofski, Member

DISTINGUISHED TALENT (RESIDENCE) (CLASS BX) – SUBCLASS 858 – cl.858.223(2)(b) – PUBLIC INTEREST CRITERION (PIC) 4005 – UNREASONABLENESS OF MEDICAL ASSESSMENT – A delegate of the Minister for Immigration and Citizenship refused to grant the Australian immigration visa applicant a Distinguished Talent (Residence) (Class BX) visa because he did not satisfy cl.858.223(2)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found it was not unreasonable to require the Australian immigration visa applicant’s daughter to undergo medical testing to determine whether she met PIC 4005. The Australian immigration visa applicant claimed he and his wife had separated and she lived a settled life in England with their daughter. The Australian immigration visa applicant’s wife and daughter were not Australian immigration visa applicants and he claimed they had no desire or intention to live in Australia. The Australian immigration visa applicant claimed his daughter had a developmental disability making it unlikely that she would meet the requirements in PIC 4005. However, he claimed that, while she would require institutional care if her mother predeceased her, a sizeable inheritance would provide her with total support. He further claimed he had no way of forcing his wife to undergo a PIC 4005 medical assessment. The Australian immigration visa applicant claimed that as a mining engineer, for ten years he had made valuable contributions to Australia, financially, economically, culturally and intellectually. He claimed there was a chronic shortage of skilled and experienced mining engineers and that he had developed a mining safety system manufactured in and installed throughout Australia. He claimed these contributions far outweighed any costs that may be incurred in the unlikely event that his daughter accessed community services in Australia in the future.

Held: Decision under review set aside.

The Tribunal accepted that neither the Australian immigration visa applicant’s wife nor daughter wished to reside in Australia. The Tribunal also accepted that the Australian immigration visa applicant had made and continued to make considerable economic, financial, intellectual, cultural and social contributions to Australia and that this would be largely lost if he was forced to leave. The Tribunal noted that, if the Australian immigration visa applicant’s daughter underwent a medical assessment and did not meet PIC 4005, it would be obliged to find that the Australian immigration visa applicant did not meet cl.858.223 of the Regulations and affirm the decision to refuse to grant the visa. Taking account of all the circumstances, the Tribunal considered that it would be unreasonable to require the Australian immigration visa applicant’s wife and daughter to undergo health assessments in relation to PIC 4005. Accordingly, The Tribunal found the Australian immigration visa applicant met cl.858.223(2)(b) of the Regulations for the purposes of the grant of a Subclass 858 visa.

0808815
20 February 2009, Sydney
Ms S Pinto, Member

SKILLED (PROVISIONAL) (CLASS VC) – SUBCLASS 485 - CL.485.213 – R.1.15F – TWO YEAR STUDY REQUIREMENT – A delegate of the Minister for Immigration and Citizenship refused to grant the Australian immigration visa applicant a Skilled (Provisional) (Class VC) visa on the basis that she did not satisfy cl.485.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she did not meet the “2 year study requirement” in r.1.15F of the Regulations. The Australian immigration visa applicant provided evidence that she had completed a Certificate III in Hospitality and a Diploma of Hospitality Management in a 16 month period. The delegate, applying a Departmental policy, which required a total registered duration of at least 92 weeks, found that the two courses had a total registered duration of 81 weeks and therefore did not comprise “2 academic years” of study.

Held: Decision under review set aside.

The Tribunal found that as holiday weeks and work-based training were included in the duration of the courses they were completed in 16 calendar months. The Tribunal accepted that, while compressed into a shorter than normal period, the courses took place over 4 semesters. It noted “2 academic years study” was not defined and there was no requirement that it be of a specific duration only that it totalled at least 16 calendar months. The Tribunal was unclear how the policy applied by the delegate formulated two academic years as 92 weeks, but it was not satisfied that policy was consistent with the legislation and considered it appropriate to depart from it. It considered that each academic year was generally comprised of 2 semesters. Consequently, the courses were completed as a result of at least 2 academic years study. The Tribunal also found all instruction for the courses was conducted in English and the Australian immigration visa applicant met r.1.15F of the Regulations. The Tribunal found the Australian immigration visa applicant satisfied the two year study requirement in the period of 6 months ending immediately before the day on which the application was made and that the courses were relevant to her nominated skilled occupation. Accordingly, the Australian immigration visa applicant met the criteria in cl.485.213 of the Regulations.

0800478
24 February 2009, Sydney
Ms C Carney, Member

INDEPENDENT OVERSEAS STUDENT (RESIDENCE) (CLASS DD) – SUBCLASS 880 – CL.880.222 – POINTS TEST – BONUS POINTS QUALIFICATION – ITEM 6A81 – EMPLOYED IN A SKILLED OCCUPATION IN AUSTRALIA – A delegate of the Minister for Immigration and Citizenship refused to grant the Australian immigration visa applicant an Independent Overseas Student (Residence) (Class DD) visa on the basis that the Australian immigration visa applicant did not satisfy cl.880.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not have the qualifying score when assessed under the points test. The delegate did not award the Australian immigration visa applicant any points for the Bonus Points Qualification under Item 6A81(b) of Schedule 6A to the Regulations. The Australian immigration visa applicant claimed that he worked as a Cook for the requisite period while holding a Subclass 573 visa subject to Condition 8105. He provided documentary evidence, including payslips, group certificates and certification from the restaurant at which he worked as a cook on a permanent part-time basis for 20 hours per week in the relevant period detailing the Australian immigration visa applicant’s duties.

Held: Decision under review set aside.

The Tribunal was satisfied on the documentary and oral evidence that the Australian immigration visa applicant was performing the full range of duties of a Cook for at least 6 months during the relevant period while holding a visa authorising him to work. The Tribunal further found that ‘Cook’ was a skilled occupation under the relevant instrument. As such, it found that he met the requirements of Item 6A81 and was entitled to 5 points for Part 8 of Schedule 6A. The Tribunal found the number of points to be awarded to the Australian immigration visa applicant was 120 at the time of the primary assessment and the time of the Tribunal’s assessment. At those dates, the pass mark was 120 points and the pool mark was 120 points. Accordingly, the Tribunal found that the Australian immigration visa applicant achieved the qualifying score required to pass the points test. Thus, the Tribunal was satisfied that the Australian immigration visa applicant met cl.880.222 for the grant of the visa.

0800722
5 May 2009, Melbourne
Dr A Gregory, Member

SKILLED – AUSTRALIAN-SPONSORED (MIGRANT) (CLASS BQ) – SUBCLASS 139 (SKILLED – DESIGNATED AREA-SPONSORED) – CL.139.217 – SKILLED OCCUPATION – A delegate of the Minister refused to grant a Subclass 139 visa to the Australian immigration visa applicant on the basis that the delegate was not satisfied that he had undertaken the claimed duties for the nominated skilled occupation in the relevant period prior to the date of application. The Australian immigration visa applicant had nominated his skills under the category of Business and Information Profession with a travel agency, and claimed 50 points for this occupation. The delegate considered the tasks undertaken by the Australian immigration visa applicant equated to that of a travel agent which was not a skilled occupation in demand. The employer claimed that the Australian immigration visa applicant was a middle management executive who was initially employed for his Information Technology (IT) skills and that his duties were more than that of a travel agent. The Australian immigration visa applicant stated that his work mainly involved operations and management. He also claimed he had roles in budgeting, marketing and operational aspects, product development, market research, sales promotion and staff supervision.

Held: Decision under review set aside

The Tribunal found the Australian immigration visa applicant to be an open and credible witness. The Tribunal noted that no ‘usual tasks’ were listed under the ASCO code for a Business and Information Professional. Rather, a skill level entry requirement of a bachelor degree or higher qualification or at least 5 years’ relevant experience was required to meet the skill level for this occupation. The Tribunal found that, although the visa Australian immigration visa applicant did undertake certain operational tasks which could be described as those of a travel agent, his major role in the company was of a higher level, using his IT skills for analytical purposes. Accordingly, the Tribunal found that the Australian immigration visa applicant’s qualifications met the requirements of a gazetted skilled occupation which was in demand. The Tribunal also found that the Australian immigration visa applicant was employed in a skilled occupation for at least 12 months in the period 18 months immediately before the day on which the application was made. Therefore, the Tribunal was satisfied that the Australian immigration visa applicant met cl.139.217 of to the Regulations.

0802382
15 June 2009, Sydney
Dr I O’Connell, Senior Member

SKILLED INDEPENDENT OVERSEAS STUDENT (RESIDENCE) (CLASS DD) – SUBCLASS 880 (SKILLED – INDEPENDENT OVERSEAS STUDENT) – CL.880.225 – PUBLIC INTEREST CRITERION 4001 – CHARACTER TEST – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 880 visa on the basis that she did not satisfy cl.880.225 of the Regulations as she had not satisfied Public Interest Criterion (PIC) 4001. The delegate found that the Australian immigration visa applicant did not satisfy PIC 4001 because she failed to provide the Department with a Canadian Penal Check in respect to her stay in Canada from 1996-2002. The Australian immigration visa applicant had provided to the Department a Police Clearance Certificate from the Australian Federal Police (AFP), documentation of the award of her Bachelor of Veterinary Science, a copy of an IELTS test with an Overall Band Score of 8.5, documentation indicating she had undergone the required health checks and a letter from the Australasian Veterinary Boards Council indicating that her qualifications had been assessed as suitable for migration purposes in her nominated profession of veterinary science. In support of her application for review, the Australian immigration visa applicant provided the Tribunal with a copy of her Canadian Penal check. She also provided evidence of having made a capital investment of $100,000 in a designated security in order to be awarded 5 bonus points under Part 8 of Schedule 6A to the Regulations.

Held: Decision under review set aside

On the basis of the AFP check and the Canadian Penal check, the Tribunal was satisfied that there was nothing to indicate that the Australian immigration visa applicant would fail to satisfy the Minister that she passed the character tests. Accordingly, the Tribunal found that the Australian immigration visa applicant satisfied PIC 4001(b) for the purpose of cl.880.225 of the Regulations. The Tribunal decided to proceed to make the points test assessment in reviewing the application. The Tribunal found that the Australian immigration visa applicant achieved the pool mark and the qualifying score to pass the points test and thus, that the Australian immigration visa applicant met cl.880.222. The Tribunal further found that the visa Australian immigration visa applicant had ‘vocational English’ as defined in r.1.15B(3) as it was satisfied that she had achieved a score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted not more than 12 months before the day on which the visa application was lodged or during the processing of the application. The Tribunal therefore found that the Australian immigration visa applicant satisfied the requirements of cl.880.222, cl.880.223 and PIC 4001 of cl.880.225 of the Regulations.

0901249
22 June 2009, Melbourne
Ms W Boddison, Member

SKILLED (PROVISIONAL) (CLASS VF) – SUBCLASS 475 (SKILLED – REGIONAL SPONSORED) – CL.475.214 – ENGLISH LANGUAGE REQUIREMENT – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 475 visa because he did not satisfy cl.475.214 of the Regulations as he did not meet the English language requirement. In his application, the visa Australian immigration visa applicant nominated his skilled occupation as Journalist and related professional. He provided an International English Language Testing System (IELTS) test with his application with an overall band score of 6.5, demonstrating a ‘concessional competent’ English level. The delegate stated that in order to satisfy cl.475.214 the Australian immigration visa applicant was required to provide evidence of having paid the required fee for English training to the relevant authority in the state/territory where the sponsor resided at the date of the visa application. The review Australian immigration visa applicant wrote to the delegate stating that she believed this requirement had not been clearly explained and that if they had known, the visa Australian immigration visa applicant would have re-sat the IELTS test. To do this, she claimed he needed more than 28 days. In her letter to the delegate, the review Australian immigration visa applicant stated “awaiting your reply so as to know what next step to take”. The delegate refused the application 3 days later. The review Australian immigration visa applicant subsequently submitted a letter and receipt from the Adult Migrant English Program (AMES) acknowledging that the review Australian immigration visa applicant had paid $2000 on behalf of the visa Australian immigration visa applicant for an English language program. The review Australian immigration visa applicant wrote to the Tribunal explaining that she was unhappy that the delegate had made a decision on the application when the 28 day period to respond to the Department’s request for information had not yet expired. She also submitted a new IELTS test report for the visa Australian immigration visa applicant from January 2009 with an overall band score of 7.0. The review and visa Australian immigration visa applicant were advised by the Tribunal that the requirements of ‘concessional competent’ or ‘competent’ English were required to be satisfied at the time of application. The review Australian immigration visa applicant wrote to the Tribunal stating that she felt she had been badly advised by the Department noting that the visa requirements had changed just prior to the lodgement of the application which she felt had caused the problem. The review Australian immigration visa applicant informed the Tribunal that she had a large number of debts and was in financial difficulty and the payment she made to AMES was futile and non-refundable. She claimed she had paid the fee because she believed this was what the delegate was asking her to do.

Held: Decision under review affirmed

The Tribunal found that the visa Australian immigration visa applicant did not meet the requirements of cl.475.214 at the time of application and that he was not eligible for the visa sought. The review Australian immigration visa applicant requested that the Tribunal refer the case to the Department for consideration for ministerial intervention. The Tribunal noted that the current program for skilled migration commenced two months before the visa application was lodged and that prior to this, the English requirement had to be satisfied at the time of decision. It was previously common practice for the English fee to be paid during the processing of the visa and this was the review Australian immigration visa applicant’s understanding of the procedure. Further, in the past, a subsequent IELTS test could be used to satisfy the English requirement. The Tribunal noted that the review Australian immigration visa applicant appeared to not have received correct advice regarding the new visa system, or that she may have made inquiries when the previous system was still in operation. It also noted that the visa Australian immigration visa applicant now has competent English and could have satisfied the requirements for ‘concessional’ English if the fee for English training had been paid before lodging the application. The Tribunal also took note of the review Australian immigration visa applicant’s financial difficulties and the fact she had paid for the review when it could not succeed. As the Australian immigration visa applicant failed to meet the time of application requirements, the Tribunal affirmed the decision not to grant the visa Australian immigration visa applicant a Skilled (Provisional) (Class VF) visa. The Tribunal determined that it would refer the matter to the Department for consideration by the Minister pursuant to s.351 of the Regulations.

0801189
1 July 2009, Sydney
Ms S Durvasula, Member

SKILLED – AUSTRALIAN-SPONSORED OVERSEAS STUDENT (RESIDENCE) (CLASS DE) – SUBCLASS 881 – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 881 visa as he did not meet cl.881.215 of the Regulations because he did not have the required relationship with his sponsor. On the application, the Australian immigration visa applicant claimed that his sponsor was his uncle and submitted documentation showing his family composition. The delegate refused the application on the basis that the sponsor was the Australian immigration visa applicant’s first cousin once-removed, not his uncle. The sponsor claimed that he was the Australian immigration visa applicant’s uncle through adoption, following the death of his father. He claimed he was adopted by his grandfather and that his uncle and his father were raised in the same household for a substantial part of his youth. After his father passed away, his paternal uncle came to his village to help his family. This uncle was quite wealthy and lived in Dhaka where he had his own businesses. As the sponsor was a good student, his uncle agreed to adopt him. The sponsor claimed that his mother agreed to this and asked this uncle to take him into his family. No other siblings moved and no formal documents were signed. The sponsor claimed he moved to Dhaka to live with his uncle and his family and he attended school there. The Australian immigration visa applicant provided a letter from a Bangladeshi lawyer stating that between 1971 and 1975 there were no specific adoption rules or proceedings in Bangladesh and that the remaining family members took responsibility for orphaned or father-less children.

Held: Decision under review set aside

Based on the evidence, the Tribunal accepted that, following the death of the sponsor’s father in 1973, he was customarily adopted overseas by his paternal uncle, the Australian immigration visa applicant’s paternal grandfather, in accordance with the usual practices of recognised customs within Bangladeshi Islamic culture. The Tribunal accepted that after his father passed away in 1973 the sponsor went to live with his paternal uncle. He was 12 years old at the time and spent his formative teenage years being raised by this uncle. Although his biological mother was still alive, the sponsor stopped having a continuing relationship with her. She gave permission for the paternal uncle to care for the sponsor and she relinquished care of him. The sponsor’s paternal uncle assumed exclusive care and responsibility for all matters pertaining to the sponsor’s welfare. Therefore, the Tribunal accepted that the Australian immigration visa applicant looked upon his paternal uncle and aunt as his new parents and he was closer to them than he was to his biological mother. On this basis, the Tribunal was satisfied that the child-parent relationship between the sponsor and his paternal uncle was significantly closer than any such relationship between the sponsor and any other person. Based on country information, the Tribunal accepted that there is no provision for legal adoption in Bangladesh and it was satisfied that formal adoption was not available or was not reasonably practicable in the circumstances. The Tribunal was satisfied these arrangements had not been contrived to circumvent Australian migration requirements and that the adoption took place in order to provide for the welfare and education of the sponsor, not for migration purposes. Also, the adoption took place in 1973, well before any of the parties considered migrating to Australia. The Tribunal found that the sponsor is the adopted son of the Australian immigration visa applicant’s paternal grandfather under r.1.04. Therefore, he is the adoptive brother of the Australian immigration visa applicant’s father, and in turn, the adoptive uncle of the Australian immigration visa applicant. He therefore had one of the relationships with the Australian immigration visa applicant that is set out in cl.1128BA(3)(l)(iii) and he was found to have met cl.881.215 of Schedule 2. Accordingly, the Tribunal remitted the application for reconsideration, with the direction that the Australian immigration visa applicant met cl.881.215 of the Regulations.

0802774
21 August 2009, Melbourne
Ms N Burns, Member

SKILLED (PROVISIONAL) (CLASS UZ) VISA – SUBCLASS 496 – DESIGNATED AREA SPONSORED – CL.496.215 – RELEVANT EXPERIENCE – A delegate of the Minister refused to grant a Subclass 496 visa on the basis that the visa Australian immigration visa applicant did not satisfy cl.496.215 of the Regulations, and found that concerns raised by Australian High Commission (AHC) staff cast doubt on the Australian immigration visa applicant’s work experience claims. The Australian immigration visa applicant claimed he completed an apprenticeship as a diesel engine mechanic in 2000 and that he had been assessed favourably in his nominated occupation through Mechanic and Trades Recognition Australia. He claimed he had been employed by his current employer as a diesel mechanic since September 2005. In 2007, Australian High Commission staff (AHC) in Sri Lanka telephoned the Australian immigration visa applicant and his employer to verify the Australian immigration visa applicant’s work experience claims. This resulted in contradictory information being provided. The Department sought the Australian immigration visa applicant’s comments on the results, and in an affidavit the Australian immigration visa applicant explained that when he received a call from the AHC he said he was not at work because he thought it was his girlfriend who had called. He claimed that when he heard that AHC had been on the line he had tried to call them back but he could not get through to them until the following day. He further claimed that he told his employer that he may need to go to the AHC the following day and this explained why his employer thought he had left work to attend the AHC. He also clarified that engines are used in cranes and top lift transfers, because AHC staff were concerned that the Australian immigration visa applicant told them that he mostly worked on cranes and top lift transfers, but his employer had told AHC staff that the Australian immigration visa applicant mostly worked on engines. The Australian immigration visa applicant provided affidavits in support of his claimed work experience and his responses to the Department’s adverse information letter. He also submitted photographs of his worksite, timesheets indicating he was at work on the days in question, and copies of his ID cards.

Held: Decision under review set aside

The Tribunal found the Australian immigration visa applicant to be a credible witness. Based on his written and oral evidence, letters and affidavits from his employer, and various work related documents, the Tribunal accepted he had been employed as a diesel mechanic since September 2005 and that he performed duties commensurate with the occupation of Motor Mechanic. The Australian immigration visa applicant’s description of his role and responsibilities were comprehensive and detailed, which demonstrated a level of familiarity and competence in the job which had been achieved over time. The Tribunal accepted why the Australian immigration visa applicant told AHC staff he was not at work when they called him and accepted that the information given by his employer and himself regarding the types of engines he worked on and tools he used was not necessarily conflicting. The Tribunal was satisfied the Australian immigration visa applicant was employed in a skilled occupation from September 2005 to date, totaling at least six months in the period of 12 months immediately before the date of application, as required by cl.496.215(1)(a). Accordingly the visa Australian immigration visa applicant satisfied the requirements of cl.496.215(1)(a) and met cl.496.215 of the Regulations.

0805108
28 August 2009, Sydney
Mr R Derewlany, Member

SKILLED – (PROVISIONAL) (CLASS VC) VISA – SUBCLASS 485 (SKILLED – GRADUATE) VISA – CL.485.213 – RELEVANT EXPERIENCE – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 485 visa on the basis that she was not satisfied the Australian immigration visa applicant had met the required full time study load, on the basis that he had received credit for 2 of the required 16 units for the Master degree from another institution. The Australian immigration visa applicant nominated Marketing Specialist as his skilled occupation in the visa application. He provided evidence that he completed the requirements for award of a Master of Business Administration from the University of Technology, Sydney (UTS) as a result of a course he commenced on 1 August 2005 and completed on 18 July 2007. A letter from UTS dated 20 August 2007 confirmed the Australian immigration visa applicant had met the requirements for award of the degree, that all instruction was in English, that he was enrolled as a full time student and that the full-time duration of the course was 4 semesters. The Australian immigration visa applicant provided his academic record which indicated he had been granted credit for 2 subjects totalling 12 credit points. The Australian immigration visa applicant also provided evidence that he had completed a Bachelor of Business Management degree from Bangalore University in October 2004.

Held: Decision under review set aside.

In deciding whether the Australian immigration visa applicant met the 2 year study requirement in respect of his Master of Business Administration degree, the Tribunal was required to determine whether the requirements of r.1.15F were met. The Tribunal was satisfied from the evidence that the Australian immigration visa applicant completed his registered course at UTS in a period of 23 calendar months. The Tribunal considered the Department’s guidelines on the issue, which indicated that the intention is that the Australian immigration visa applicant has successfully completed the equivalent of 2 years study at 100% of the full-time load, without benefit from credits, recognition of prior learning and/or recognition of work experience that would allow a reduction in the amount of study undertaken. The Tribunal considered, however, that these guidelines suggest an approach to the consideration of the 2 academic years study requirement (r.1.15F(c)) that is narrower and more prescriptive than the regulation itself. The Tribunal considered that whether an Australian immigration visa applicant has been given credits in a course is not determinative of whether an Australian immigration visa applicant has completed a relevant qualification as a result of at least 2 academic years study in a registered course. The Tribunal was satisfied on the basis of the evidence from UTS that the Australian immigration visa applicant undertook the course as a full-time student over 4 semesters, which equates to the course duration specified in the CRICOS registration. The Tribunal therefore was satisfied the Australian immigration visa applicant completed the course leading to the Master qualification as a result of 2 academic years of study. The Tribunal was satisfied this was within the period of 6 months ending immediately before the day the application was made. The Tribunal accordingly found the Australian immigration visa applicant satisfied cl.485.21 (a). The Tribunal was satisfied that the Australian immigration visa applicant’s Master of Business Administration qualification is closely related to his nominated skilled occupation of Marketing Specialist. The Tribunal therefore found the Australian immigration visa applicant satisfied cl.485.213(b), and thus met the requirements of cl.485.213 of the Regulations.

0904267
23 September 2009, Sydney
Mr L Hardy, Member

SKILLED – AUSTRALIAN-SPONSORED (MIGRANT) (CLASS BQ) – SUBCLASS 138 (SKILLED – AUSTRALIAN-SPONSORED) – CL.138.216 – CL.138.225A – SKILLED OCCUPATION – REQUISITE PERIOD OF TIME – A delegate of the Minister refused to grant a Subclass 138 visa on the basis that the visa Australian immigration visa applicant had not satisfied cl.138.216 of the Regulations because he was not employed in a skilled occupation for the requisite period of time. The visa application stated that the visa Australian immigration visa applicant had worked as an electrical engineer from June 2006. The visa application included a letter from Engineers Australia which stated that his qualifications met the requirements of his nominated occupation. A “Certification” on his employer’s letterhead and signed by the general manager, stated that the Australian immigration visa applicant was employed from 1 June 2006 and his duties and responsibilities for the position were listed. Officers from the Department conducted a site visit and were satisfied that the Australian immigration visa applicant’s employer was a genuine business. The General Manager advised them that the visa Australian immigration visa applicant was a previous employee of his company but he could not provide any employment records at that time as all documents were with his accountant. He confirmed the authenticity of the employment certificate for the visa Australian immigration visa applicant. The visa Australian immigration visa applicant supplied payslips for the periods 1 June 2006 to 28 June 2006 and 1 May 2008 to 28 May 2008 which were expressed to be the first and last month of the visa Australian immigration visa applicant’s employment.

Held: Decision under review set aside.

The Tribunal found that the nominated skilled occupation of Electronics Engineer required the visa Australian immigration visa applicant to be employed in a skilled occupation for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day on which the application was made. The Tribunal found the relevant period was 11 January 2006 to 11 July 2007, and based on the evidence provided, the visa Australian immigration visa applicant was employed from 1 June 2006 to 31 May 2008. The Tribunal accepted he was employed for this period and that his duties were as set out in the certificate of employment. The Tribunal also found that the Australian immigration visa applicant’s responsibilities and duties indicated he performed the duties and functions of an Electronics Engineer during his employment. The Tribunal found the Australian immigration visa applicant nominated a skilled occupation for which 60 points were specified, and that he was employed in a skilled occupation for a period of at least 12 months in the period of 18 months immediately before the day on which the application was made. Accordingly, the Tribunal found that the Australian immigration visa applicant met the requirements of cl.138.216 and cl.138.225A of the Regulations.

0807471
13 October 2009, Sydney
Ms N Dougall, Member

SKILLED INDEPENDENT OVERSEAS STUDENT (RESIDENCE) (CLASS DD) – SUBCLASS 880 (SKILLED-INDEPENDENT OVERSEAS STUDENT) – CL.880.214 – SKILL QUALIFICATION – A delegate of the Minister refused the Australian immigration visa applicant’s Subclass 880 visa application as the visa Australian immigration visa applicant did not satisfy cl.880.214 of the Regulations. The delegate found that the Australian immigration visa applicant had not, in the 6 months immediately before the day when the application was made, completed more than one degree, diploma or trade qualification for award by an Australian educational institution as a result of a total of at least 2 years study. The delegate found that the visa Australian immigration visa applicant had completed his Certificate IV in Hospitality – Commercial Cookery and his Diploma in Hospitality Management in December 2007, which was more than 6 months prior to lodging the visa application. The Australian immigration visa applicant claimed that he had been awarded a Diploma of Hospitality Management by Holmes Institute (Holmes), which commenced on 14 November 2005 and finished on 10 November 2006. This Diploma was awarded to the Australian immigration visa applicant in September 2007. The Australian immigration visa applicant claimed that he was awarded a Certificate IV Hospitality (Commercial Cookery) by Holmes, which commenced on 8 January 2007 and finished on 21 August 2007. The Australian immigration visa applicant also provided a letter from Sydney International College of Business (SICB) dated 1 February 2007 which stated that SICB had issued a Statement of Attainment – Partial Completion of Certificate III in Hospitality – Commercial Cookery. The Australian immigration visa applicant claimed that he enrolled in Certificate III in Hospitality (Commercial Cookery) at SICB as Holmes did not offer the course at that time. He claimed that Holmes then introduced a Certificate IV in Hospitality (Commercial Cookery) commencing in February 2007, so he left SICB and re-enrolled in Holmes. He claimed that when he left SICB he was given a letter stating he had partially completed his Certificate III, and as a Certificate III was part of a Certificate IV in Hospitality (Commercial Cookery), Holmes gave him credits towards his Certificate IV which is why this course at Holmes was fast tracked. The Australian immigration visa applicant claimed that there were two Academic Transcripts for the Certificate IV in Hospitality (Commercial cookery). It was submitted that the second transcript showed the dates that the Australian immigration visa applicant actually studied the course as it was fast tracked, whilst the initial transcript showed the actual dates for the course if it had not been fast tracked. The Australian immigration visa applicant submitted a letter from Holmes which stated that he studied both a Diploma in Hospitality Management and a Certificate IV in Hospitality (Commercial Cookery) between 14 November 2005 and 24 August 2007. These courses were fast tracked and completed in over 1 year and 9 months taking into account the SICB subjects the Australian immigration visa applicant had received credits for.

Held: Decision under review set aside.

The Tribunal was satisfied given the evidence before it that the Australian immigration visa applicant had been studying his Diploma of Hospitality Management and Certificate IV in Hospitality (Commercial Cookery) from 14 November 2005 to 21 August 2007 at Holmes and SICB. The Tribunal was also satisfied that the Australian immigration visa applicant had studied during that period without any holidays due to having to change education providers to study a prerequisite for his Certificate IV in Hospitality (Commercial Cookery). The Tribunal found that his study of over 1 year and 9 months was more than equivalent to at least 2 academic years. Therefore, the Tribunal found that the Australian immigration visa applicant had studied for at least 2 years full time study for a Diploma of Hospitality Management and a Certificate IV in Hospitality (Commercial Cookery) at Holmes and SIC, which he completed on 21 August 2007. The Tribunal accepted that the Australian immigration visa applicant, in the 6 months immediately before the day when the application was made, completed more than one degree, diploma or trade qualification for award by an Australian educational institution as a result of a total of at least 2 years study. Therefore, the Tribunal found that the Australian immigration visa applicant satisfied the criteria in cl.880.214 of the Regulations.

0806328
23 October 2009, Melbourne
Ms M Hodgkinson, Member

SKILLED (PROVISIONAL (CLASS VC) – SUBCLASS 485 (SKILLED – GRADUATE) – CL.485.221 – SKILLS ASSESSMENT – A delegate of the Minister refused to grant the Australian immigration visa applicant a Skilled (Provisional) (Class VC) visa on the basis that she did not satisfy cl.485.221 of the Regulations, as she had not provided a positive skills assessment from the relevant assessing authority for the nominated occupation at the time of decision. In the visa application, the Australian immigration visa applicant nominated her occupation as Translator. However, she later submitted a Notification of Changes in Circumstances form advising that she had applied for a new nominated occupation of Business and Information Professional. The Australian immigration visa applicant’s representative claimed that the Australian immigration visa applicant felt she had been misled by her previous agent in believing she had the skills to nominate as an interpreter, and that she should have been allowed to change her nominated occupation. The representative argued that the Australian immigration visa applicant met the remaining criteria for the grant of the visa and that the delegate should have used their discretion under r.2.27B in order to invite the Australian immigration visa applicant to have her skills assessed for a different skilled occupation. The Australian immigration visa applicant submitted copies of positive skills assessments obtained for the occupations of Public Relations Officer and Business and Information Professional. The Australian immigration visa applicant claimed that she had heard that there was discretion to change her nominated occupation and to seek a skills assessment for a different occupation. The Australian immigration visa applicant acknowledged that she was aware at the time the application was lodged that she had nominated her occupation as Translator and that she sat the NAATI test twice but did not pass. She claimed that this was when it dawned on her that she had made a mistake. She claimed that she came to Australia to pursue a career in communications, not in translating. She further claimed that she had worked hard in Australia and had created a niche for herself. She claimed that she had come to Australia at a young age and if she were not granted the visa she would be uprooted.

Held: Decision under review affirmed.

The Tribunal discussed with the Australian immigration visa applicant at hearing that r.2.27B was omitted in September 2007 with the introduction of the new General Skilled Migration Scheme, of which Class VC is a part. The Tribunal noted that, although the Australian immigration visa applicant had spoken to people who had received an invitation under r.2.27B in the past, it no longer applied at the time that this application was lodged (November 2007), nor did it apply to the VC visa class even when it was in force. Consequently, the Tribunal found that there was no discretion to invite the Australian immigration visa applicant to undergo a skills assessment for a new nominated occupation. The Tribunal was not satisfied that the application was affected by fraud or negligence on the part of the previous migration agent. The Tribunal noted that the Australian immigration visa applicant had acknowledged her awareness at the time of lodgment that the occupation of Translator had been nominated. The Tribunal noted that the Australian immigration visa applicant had pursued assessment of her skills as a Translator by sitting two tests, which she failed to pass. The Tribunal further observed that even if the Change of Circumstances form had been sufficient to substitute a new nominated occupation, cl.485.214 requires that the Australian immigration visa applicant had applied for assessment of skills for the nominated skilled occupation at the time of application. The Australian immigration visa applicant did not do so until March 2008, after the application was lodged. Thus, the Tribunal found that the Australian immigration visa applicant’s nominated skilled occupation was Translator. The Tribunal found that, as she had not provided a positive skill assessment from NAATI for the nominated occupation of Translator at the time of decision, the Australian immigration visa applicant therefore did not meet cl.485.221 and did not meet the criteria for the grant of a class VC visa.

0806467
11 November 2009, Sydney
Ms D Dimitriadis, Member

SKILLED (RESIDENCE) (CLASS VB) – SUBCLASS 885 (SKILLED – INDEPENDENT) – CL.885.215 – MEDICAL EXAMINATION – ITEM 4005 – A delegate of the Minister refused to grant the Australian immigration visa applicant a Skilled (Residence) (Class VB) visa because he did not satisfy cl.885.215 of the Regulations as the visa application was not accompanied by evidence that the Australian immigration visa applicant had arranged to undergo the required medical examination. The visa Australian immigration visa applicant previously held a number of temporary visas in Australia as a student. At the time of lodging the Skilled (Residence) application, the Australian immigration visa applicant answered a question stating that he had undertaken a medical examination in the previous year. He provided a receipt for a Student visa medical examination which he claimed he had undergone while seeking an extension of his Student visa and he thought that medical assessments were valid for 12 months. The Australian immigration visa applicant claimed that he had no knowledge of the difference in medical examinations for temporary and permanent visa applications. The Australian immigration visa applicant’s representative submitted that cl.885.215 refers to an Australian immigration visa applicant making an arrangement to undergo a medical examination and evidence of this is required. However, the medical check question in the online application stated that the Australian immigration visa applicant had “undergone” a medical examination. He submitted that this is confusing for an Australian immigration visa applicant lodging an application without professional help. The representative further claimed that if the Department required Australian immigration visa applicants to take different kinds of medical tests for different applications, it had a duty of care under the principles of procedural fairness to clearly state in the application which kind of medical tests were required for the particular visa class or subclass. He stated that, given the ambiguity of cl.885.215, it was reasonable to expect a decision maker to use the authority under s.56 of the Act to ask the Australian immigration visa applicant to undertake extra blood tests to establish whether he satisfied item 4005 of the Regulations. The representative submitted that, because satisfying health related public interest criteria is required to be met at the time of decision, the Tribunal should exercise its powers under the Act to accept a new medical examination including blood tests. The Australian immigration visa applicant stated that he thought that if anything else had been required by the Department at the time of his application, the Department would have asked him for further documents. Instead, his visa was just refused. The Australian immigration visa applicant provided the results of a new medical test, including a blood test, at the Tribunal hearing. He stated that he had passed all of the medical requirements.

Held: Decision under review affirmed.

The Tribunal noted that the issue under review was whether the Australian immigration visa applicant satisfied cl.885.215 which required the visa application to be accompanied by evidence that arrangements had been made for the Australian immigration visa applicant to undergo a medical examination for the purpose of the application. The Tribunal considered the Australian immigration visa applicant’s evidence and the submissions of his representative however it did not accept the submission that the wording of c.885.215 was ambiguous. The Tribunal noted recent consideration of the meaning of the phrase “has made arrangements to undergo” in case law, specifically the finding that the phrase involves two key aspects; firstly, the arrangements must have been made, in the sense of being in place or in existence, when the application is made; and secondly, the arrangements must be to undergo, in the sense of to take or to sit for, a test. The Tribunal found that the Australian immigration visa applicant’s visa application was not accompanied by evidence that he had made arrangements to undergo a medical examination for the purpose of the application. It further found that arrangements had not been made for the Australian immigration visa applicant to undergo a medical examination at the time of application. Consequently, the Tribunal found that the Australian immigration visa applicant did not satisfy cl.885.215 and thus did not satisfy the requirements for the grant of a Subclass 885 visa.

Australian Business Visas

071971024
15 January 2009
Mr P Katsambanis, Member

BUSINESS SKILLS (RESIDENCE) (CLASS DF) – SUBCLASS 892 – CL.892.211 – ACTIVELY OPERATING MAIN BUSINESSES IN AUSTRALIA FOR AT LEAST 2 YEARS IMMEDIATELY BEFORE THE APPLICATION IS MADE – MAIN BUSINESS – R.1.11(d) – QUALIFYING BUSINESS – R.1.03 – A delegate of the Minister for Immigration and Citizenship refused to grant the Australian immigration visa applicant a Business Skills (Residence)(Class DF) Subclass 892 visa on the basis that the Australian immigration visa applicant did not satisfy cl.892.211(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the Australian immigration visa applicant had, and continued to have, an ownership interest in one or more actively operating main businesses in Australia for at least 2 years immediately before the application was made. The Australian immigration visa applicant submitted that he had been the director of the company called Lady Bug Pty Ltd (Lady Bug) since 2001 and that the major activities of the business were retail and wholesale. It was also submitted that although the business’s BAS statements reflected no sales prior to April 2006 the Australian immigration visa applicant had been very active in establishing the business, including sourcing goods, negotiating with suppliers and making several trips to India to ensure that his goods were manufactured to his requirements.

Held: Decision under review set aside.

The Tribunal accepted that the business operated for the purposes of making a profit through the provision of goods to the public and was not operated primarily or substantially for the purposes of speculative or passive investment. It did not consider it material that the business had not actually sold goods to the public for the entirety of 2 year period required in cl.892.211(1). The Tribunal considered it sufficient that the Australian immigration visa applicant was actively working for part of this 2 year period to establish the business so that it could provide goods to the public and that he did commence sale of goods to the public as soon as possible. It found that Lady Bug was a ‘qualifying business’ as defined in r.1.03 and, therefore, the Australian immigration visa applicant met the requirements of r.1.11(1)(d). The Tribunal also found that Lady Bug was a ‘main business’ for the purposes of cl.892.211(1) and that it had operated in Australia for at least 2 years before the application was made. Accordingly, the Australian immigration visa applicant met the requirements of cl.892.211(1). A delegate of the Minister for Immigration and Citizenship refused the application for a Skilled (Residence) (Class VB) Subclass 885 Skilled Independent visa because the Australian immigration visa applicant had not demonstrated a competent level of English as required by cl.885.213(b) of Schedule 2 to the Migration Regulations (the Regulations). Relevantly, r.1.15C of the Regulations provided that a person had competent English if the person had achieved, in a test conducted not more than 2 years before the day on which the application was lodged, an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening. The Australian immigration visa applicant had completed an IELTS test prior to the application but had achieved a score of 5 for writing. He undertook further IELTS tests after the application was lodged and, in one more recent test, scored higher than 6 for each of the 4 components. The Australian immigration visa applicant’s representative submitted that the most recent IELTS test met the requirements of r.1.15C. It was submitted that r.1.15C was to be construed as permitting an IELTS test conducted later than the day on which the application was lodged. The submissions suggested that the Tribunal should take an expansive view of the provision given its ambiguity and the Australian immigration visa applicant’s circumstances.

0808613
31 March 2009, Sydney
Mr D O'Brien, Principal Member

ESTABLISHED BUSINESS (RESIDENCE) (CLASS BH) – SUBCLASS 845 (ESTABLISHED BUSINESS IN AUSTRALIA) – CL.845.216 – DAY TO DAY MANAGEMENT OF THE BUSINESS – A delegate of the Minister refused to grant the Australian immigration visa applicant's Subclass 845 visas on the basis that the primary Australian immigration visa applicant, as the owner of an interest in a main business in Australia, had not maintained direct and continuous involvement in the management of that business from day to day and in making decisions that affected the overall direction and performance of that business in the 12 months immediately preceding the making of the application. The primary Australian immigration visa applicant stated that she owned 100 per cent of a business, which was engaged in flooring and painting services. She claimed to be involved in all aspects of running the business, including giving quotes for jobs, meeting with builders, ordering supplies and scheduling jobs. She further claimed most work was picked up through her direct approaches to builders and owners. The primary Australian immigration visa applicant claimed she had three employees and a contractor whose fluent English had initially helped her win work, but who was no longer engaged with the business. An anonymous “dob-in” phone call asserted that the primary Australian immigration visa applicant only had a “paper” business and her employees worked elsewhere. The primary Australian immigration visa applicant also accidentally left a sheet of paper with prepared answers to questions typed in English at a cancelled interview. She claimed she had been nervous about the interview, had limited English and thought there might not be an interpreter, so had typed some prepared answers.

Held: Decision under review set aside

The Tribunal accepted that the primary Australian immigration visa applicant was the owner of an interest in the business concerned. Further, the Tribunal held it was clear that she managed the employees who performed the services in that she directed them in relation to the jobs to be performed and looked after their pay, superannuation, and workers compensation cover. It was also satisfied that while there was a person engaged on a contract basis to use his English speaking skills to win work for the company, it was clear that the primary Australian immigration visa applicant was the proprietor of the business and managed his role, dispensing with his services later when she no longer felt need of them. As to the primary Australian immigration visa applicant’s involvement in making decisions that affected the overall direction and performance of the business, it was satisfied she had responsibility for the path the company took to seek to obtain and to secure work and for the jobs it did and for those it chose not to do. Therefore, the Tribunal accepted that during the relevant period the Australian immigration visa applicant maintained direct and continuous involvement in the management of the business from day to day and in making decisions that affected the overall direction and performance of the business. The Tribunal accorded no weight to the “dob-in” information as it was at odds with evidence showing the company as the employer. The Tribunal was also not concerned about the material the primary Australian immigration visa applicant took to the interview to “prompt” her as it was an important interview which she treated as such by preparing for it. The Tribunal was of the view that the delegate’s reference to this document as a “cheat sheet” reflected poorly on the Department. Thus the Tribunal found that the Australian immigration visa applicant satisfied the requirements of cl.845.216 of the Regulations for the grant of the visa.

Australian Employer Sponsorship Visas

0805418
10 December 2009, Sydney
Ms J Ciantar, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 856 – EMPLOYER NOMINATION SCHEME – CL.856.321 – A delegate of the Minister refused the applicant’s Subclass 856 visa application because the visa applicant did not satisfy cl.856.321, as the delegate was not satisfied that the applicant was substantially financially dependent upon his parents both at the time of application and at the time of the Tribunal’s decision. The applicant claimed that he was an only child who had lived in Australia for about ten years, and that he had been employed full time since March 2009 as the Manager of a McDonald’s outlet. He claimed that he lived with his parents and earned about $550 per week and that he paid at least in part the water bills, council rates, electricity bills and all the telephone bills including his parent’s mobile phones. He claimed that prior to starting this job he did not contribute any money to household expenses as his parents were renting accommodation and he was only employed part-time. He stated that he had purchased a car from his parents for between $3000 and $4000 and he paid the car’s running costs. The applicant’s father advised the Tribunal that the applicant had given them $8,000 towards the mortgage since May 2009 and that the applicant gave his mother all his wages except about $150-$200 which he kept as pocket money. He further stated that when his son was studying, he and his wife had paid all his expenses including his school fees. The applicant claimed that he did not give his mother his salary every week but he had given her about $10,000 during the last year.

Held: Decision under review affirmed.

The Tribunal was satisfied that, at the time of application, the applicant was the dependent child of his parents and that for a substantial period immediately before the date of lodgement the applicant was substantially reliant on his parents for financial support to meet his basic needs for food, clothing and shelter. However, the Tribunal was not satisfied that at the time of decision the applicant was wholly or substantially reliant upon his parents for financial support to meet his basic needs. The Tribunal noted the applicant’s evidence that he had been employed full time since March 2009; that he lived with his parents and earned about $550 per week. It further noted that the applicant made a substantial contribution towards the household bills and that the applicant had also given his mother money towards their home loan. The Tribunal accepted that the applicant had started purchasing his own clothes from this year. The Tribunal was satisfied that the applicant worked full-time and that since commencing full-time employment he had used his salary to pay for his own clothes and living expenses and to contribute towards the cost of his food and accommodation. The Tribunal accepted that the applicant’s parents continued to provide him with some assistance as they had purchased a house in which the applicant resided, and they bought food for the family. However, the Tribunal was of the view that the applicant made a substantial contribution to the cost of his accommodation and food, as his evidence was that he had given his mother $10,000 in the last year. The Tribunal found that even if the $10,000 given by the applicant included the money he gave towards accounts such as rates and phone bills, the Tribunal was satisfied that the applicant was substantially financially independent of his parents. The Tribunal had some sympathy for the applicant as he was only aged 21 and had lived in Australia since he was 12 years of age. However, it found that the applicant was not dependent upon his mother or father and, therefore, he did not satisfy the definition of a member of the family unit under r.1.12. As the Tribunal found that the applicant was not a member of the family unit of a visa holding parent at the time of decision, the applicant did not meet the requirements of cl.856.321 of the Regulations.

0800889
10 February 2009, Melbourne
Mr G Haddad, Member

STANDARD BUSINESS SPONSORSHIP – R.1.20D(2)(c)(ii) – SATISFACTORY RECORD OR DEMONSTRATED COMMITMENT TO TRAINING – A delegate of the Minister for Immigration and Citizenship refused to approve the Australian immigration visa applicant as a Standard Business Sponsor on the basis that it did not have a satisfactory record or demonstrated commitment towards training Australian citizens and permanent residents in accordance with r.1.20D(2)(c)(ii) of the Migration Regulations 1994 (the Regulations). The Australian immigration visa applicant traded in retail and wholesale fashion. It submitted a business plan that contained a well documented in-house training plan together with other business manuals and documentation. The Australian immigration visa applicant gave evidence that it had also undertaken to stock one staff member’s new fashion brand that was selling well and expected to extend that commitment in the future.

Held: Decision under review set aside.

The Tribunal had regard to the staff manuals, business plan and the history and development of the business. Apart from the well-documented training plan and credible oral evidence regarding training, including on-the-job training, the Tribunal had particular regard to the fact that the Australian immigration visa applicant’s approach to training was different from the regular training approach. It noted a “satisfactory record” of training required the Australian immigration visa applicant to make, or be committed to making, a reasonable contribution to the training of the Australian workforce having regard to the nature and extent of its business. It further noted that on-the-job training that was not quantifiable could provide the basis of a satisfactory record of training. As such, the Tribunal was satisfied the business had a satisfactory record and demonstrated commitment to training, including on the- job training and met the criterion in r.1.20D(2)(c)(ii) of the Regulations. It also found it met the other criteria in r.1.20D(2) to be approved as a standard business sponsor.

0806368
8 May 2009, Sydney
Mr C Packer, Member

SPONSOR APPROVAL BAR – S.140J – R.1.20CB(1)(J) – CHANGE OF EMPLOYMENT LOCATION –R.1.20CB(1)(F) – CESSATION OF EMPLOYMENT – R.1.20CB(1)(I) – MINIMUM SALARY LEVEL – A delegate of the Minister decided to take action under s.140L(c), (e) and (g) of the Regulations to bar the business sponsor for two years from: sponsoring more people under the terms of standard business sponsorship; making future applications for approval as a sponsor for Subclass 457 visas (approval as a standard business sponsor); and nominating a person or activity in relation to a temporary visa where the sponsor would otherwise be entitled to make the nomination under the Regulations. The delegate found that the Australian immigration visa applicant had breached the sponsorship undertakings listed in r.1.20CB(1)(j), (f) and (i) concerning the change of employment location of an employee, the cessation of employment of another employee, and the failure to pay the minimum salary level (MSL) to 9 employees. The sponsor claimed that the 9 employees in question were permitted to take one month’s holiday to visit parts of Australia before commencing work. At the Tribunal hearing the sponsor then claimed that while the business had wanted the visa holders to commence work immediately, the visa holders demanded a holiday before commencing work. The sponsor later claimed that the visa holders knew each other in China and decided together to delay the start of their employment until the same date. The sponsor claimed that government policy did not point out that the visa holders had to be paid on arrival; they were to be paid as soon as they started work. The sponsor also back paid the relevant wages when they became aware of the issue.

Held: Decision under review varied

The Tribunal found that r.120CB(1)(j) (change of employment location) and (f) (cessation of employment) were not breached. In relation to the 9 employees which were deemed to have not been paid the MSL, the Tribunal rejected the sponsor’s claim that 8 of the visa holders demanded to start work on the same day. The Tribunal found that the sponsor organised when the visa holders should arrive in Australia, met them at the airport and organised where they were to go in regional Australia. In those circumstances, the Tribunal concluded that each of the 9 visa holders occupied their nominated positions from the time they entered Australia and that the sponsor chose for them to live without pay for a number of weeks while they ‘settled in’. The Tribunal thus found that in effect the visa holders were on leave without pay and that the undertaking in r.1.20CB(1)(i) (failure to pay minimum salary level) was therefore enlivened from the time of their arrival. The Tribunal concluded that the sponsor did not ensure the visa holders would be paid at least the MSL from the time of their arrival and thus breached the undertaking in r.120CB(1)(i) for each of the visa holders. In considering the severity of the breach, and in light of the multiple breaches for significant amounts, the Tribunal found that the breach of the undertaking was severe. The Tribunal considered the past conduct of the sponsor and noted that the review Australian immigration visa applicant made back payments to the visa holders when the breach was identified; that the visa holders had otherwise been paid the MSL since; and that the sponsor appeared to have co-operated with the Department and with the Tribunal during the review. The Tribunal decided that the actions set out in s.140L(c), (e) and (g) should be taken but, in light of its findings that the sponsor did not breach r.1.20CB(1)(j) and (f), that the duration of the actions should be lessened. The Tribunal therefore varied the decision under review and barred the sponsor from: sponsoring more people under the terms of standard business sponsorship to the end date of the sponsorship; making future applications for approval as a sponsor for Subclass 457 visas for eighteen months; and nominating a person or activity in relation to a temporary visa where the sponsor would otherwise be entitled to make the nomination under the Regulations for 18 months.

0803453
26 August 2009, Melbourne
Mr J Atkins, Member

EMPLOYER NOMINATION (RESIDENCE) (CLASS BW) – SUBCLASS 856 (EMPLOYER NOMINATION SCHEME) – CL.856.213(C)(II) – Australian immigration visa applicant OVER 45 YEARS OF AGE – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 856 visa on the basis that he did not meet cl.856.213(c)(ii) of the Regulations as he was over 45 years of age and the delegate was not satisfied that exceptional circumstances existed. The Australian immigration visa applicant has worked for Brunetti Cakes since 2007 and he was nominated to fill the position of Pastry Cook. The Australian immigration visa applicant claimed he had been employed as a Pastry Cook since the age of 16. Along with other achievements, he claimed he was a Gold, Silver and Bronze medallist in the fields of pastry and confectionary, both in the UK and France. He is a qualified lecturer in pastry, bakery and confectionary. For 5 years, he held the position of lecturer at the prestigious Westminster College in London. The Australian immigration visa applicant claimed that he was granted entry to the USA for achievement and outstanding performance in his field of work. He claimed to have worked in London, Paris, New York and Sydney in positions of authority, either as an Executive or Head of Department. He claimed to be currently writing a book and to have written articles for a number of industry publications.

The Australian immigration visa applicant claimed that he is involved in training staff at Brunetti’s, which is his passion, and that his role was more of a pastry cook trainer than as a pastry chef. Over 40 pastry chefs work at Brunetti’s three locations and as Brunetti’s had recently sold its international franchise to a Singaporean business, he claimed he would be training staff for their outlets in Dubai and Singapore. He claimed there was a shortage of professional pastry cook trainers in Australia. The Brunetti Cakes Managing Director gave evidence that it is very difficult to find a pastry chef in Australia who understands European flavour, which the Australian immigration visa applicant does. He claimed that his company is planning to employ more apprentices and that the Australian immigration visa applicant would be involved in their training. The Managing Director of an educational institution confirmed at hearing that the Australian immigration visa applicant had completed a Certificate IV course which qualified him to be a trainer at TAFE, University and private education facilities. He claimed that the Australian immigration visa applicant has exceptional skills in hospitality and training, especially in pastry. The Executive Chef Pattisier at the Windsor Hotel provided evidence that the Australian immigration visa applicant’s knowledge and skill level exceeds that currently being taught to Australian apprentices. In a letter, the Australian immigration visa applicant’s former employer, Executive Chef/Owner of The Bathers Pavilion, stated that the Australian immigration visa applicant had been in charge of 8 Pastry Chefs, training, production and quality control and that one of the Australian immigration visa applicant’s highest qualities was his teaching ability.

Held: Decision under review set aside.

The Tribunal found that the position offered to the Australian immigration visa applicant was essential to the operation of the nominator’s business, Brunetti Cakes, now and in the foreseeable future. It found that given the nominator’s extensive plans to expand within Australia and overseas, there was a greater need for a pastry cook with teaching experience and qualifications. The Tribunal found the evidence given by the Australian immigration visa applicant’s employer and other witnesses clearly demonstrated that the Australian immigration visa applicant has skills and experience that can only be acquired over many years. It accepted the witness’ evidence that English and European Pastry Chefs reach the peak of their professional life in their late forties and early fifties. The Tribunal found that the Australian immigration visa applicant had acquired an unusual and highly specialised range of skills and experience that is not possible to find in a younger Australian immigration visa applicant. The Tribunal was satisfied that the Australian immigration visa applicant’s circumstances were sufficiently unusual and out of the ordinary to constitute exceptional circumstances for the purposes of cl.856.213(c)(ii) even though he had turned 50 at the time of application. Accordingly, the Tribunal found that the Australian immigration visa applicant met cl.856.213 of the Regulations.

Australian Employer Sponsorship Visas - Temporary

071946908
19 January 2009, Melbourne
Mr P Katsambanis, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 – CL.457.223(4)(d) – PERSONAL ATTRIBUTES AND EMPLOYMENT BACKGROUND – A delegate of the Minister for Immigration and Citizenship refused the application for a Temporary Business Entry (Class UC) Subclass 457 visa on the basis that the Australian immigration visa applicant did not satisfy cl.457.223(4)(d) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the Australian immigration visa applicant did not have personal attributes and an employment background that were relevant to and consistent with the nature of the activity to be performed. In a series of telephone verification checks conducted by officers of the Department of Immigration and Citizenship (DIAC), contradictions arose as to the size of the restaurant in which the Australian immigration visa applicant was employed, the Australian immigration visa applicant could only name one dish he cooked and did not know where the ingredients were purchased. These contradictions and issues led the delegate to not be satisfied that the Australian immigration visa applicant was a ‘cook’ as claimed.

Held: Decision under review set aside.

The Tribunal accepted the trade qualifications provided by the Australian immigration visa applicant, including a certificate of graduation from a training school and an occupational qualification certificate, and found that the Australian immigration visa applicant held qualifications as a ‘cook’ as claimed. The Tribunal noted the contradictions and issues in the evidence given to DIAC, however, the Tribunal had had the opportunity to observe a DVD provided to it showing the Australian immigration visa applicant working in a kitchen and producing a number of dishes and placed significant weight on this. Based on its observations of the Australian immigration visa applicant’s performance in the DVD, the Tribunal was of the view that the Australian immigration visa applicant was a highly experienced cook who was able to work well under pressure in a commercial kitchen environment. The Tribunal found the Australian immigration visa applicant demonstrated that he had good control of the wok, was clearly familiar with the layout of the kitchen, was able to cook a wide variety of dishes and was able to command and control other staff working in the kitchen. It was satisfied that the Australian immigration visa applicant had personal attributes and an employment background which were directly relevant to and consistent with the activity of ‘cook’. Accordingly, the Tribunal found that the Australian immigration visa applicant met the requirements of cl.457.223(4)(d).

071796512
20 March 2009, Sydney
Mr C Packer, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 (BUSINESS (LONG STAY)) – CL.457.223(7A) – “THE BUSINESS” – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 457 visa on the basis that he did not satisfy cl.457.223 of the Regulations because he did not have adequate net assets to conduct the business. On the application, the Australian immigration visa applicant claimed “The company is running petrol station in Sydney and has explored other opportunities related to import of goods from overseas”. The petrol station had ceased activities, however the Australian immigration visa applicant claimed he still had an interest in the company which was an investment company, and was setting up a new business in Australia. He claimed he had a contract to assemble car audio equipment. The Australian immigration visa applicant also advised the company operated a courier service and frozen food distributions. Further, he claimed the business had links to his Egyptian business that was still running.

Held: Decision under review affirmed

The Tribunal found “the business” referred to in cl.457.223(7A) was the business enterprise or activity, rather than the entity conducting the business, therefore, it did not accept that the Australian immigration visa applicant’s company by itself could satisfy the Regulation. The Tribunal was not satisfied that the Australian immigration visa applicant operated a courier service and frozen food distribution. It also found that neither a proposed business nor the Egyptian business, which was separate from the Australian business, could satisfy the requirement that the Australian immigration visa applicant had been “conducting the business in Australia”. There was no compelling information to show that the Australian immigration visa applicant conducted any other business activities in Australia and the Tribunal concluded that the Australian immigration visa applicant satisfied cl.457.223(7A)(b) because at the time of application he had conducted the petrol station business as a principal for at least 15 months. The Tribunal considered that if the term “the business” in both cl.457.223(7A)(b) and (c) means an identified business, the plain grammatical construction is that it is the same business in each. The petrol station operating at the time of application ceased because it was not profitable. Therefore, the Tribunal was not satisfied that the business was of benefit to Australia and that the Australian immigration visa applicant had a genuine and realistic commitment to maintain an ownership interest, or direct and continuous involvement, or to make decisions that affected the overall direction and performance of the business, or there was a need for him to be temporarily resident in Australia to conduct the business. It further found, even if the business at the time of application could be a different business to that at the time of decision there was nothing to suggest that the Australian immigration visa applicant could meet those requirements since, on the material before it, the Tribunal was not satisfied there was any business in Australia being conducted by the Australian immigration visa applicant as a principal. It found that the requirements in cl.457.223(7A)(c)(i),(ii) and (v) were not met for the grant of the visa.

0803195
23 March 2009, Melbourne
Mr D Mitchell, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 (BUSINESS (LONG STAY)) – CL.457.223(4)(eb) – ENGLISH PROFICIENCY – JURISDICTION – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 457 visa on the basis that he did not satisfy cl.457.223(4) of the Regulations because he did not have an acceptable level of English language proficiency. The visa application was accompanied by an application for approval as a business sponsor from the Australian immigration visa applicant’s proposed employer and three business nominations. The Australian immigration visa applicant claimed the application for approval as a business sponsor was approved for two business nominations pursuant to r.1.20D(4) and the Department informed the proposed employer the lodged nominations exceeded those approved by one. The Australian immigration visa applicant claimed his proposed employer agreed to withdraw a nomination referred to only by its number. The number cited was the nomination relating to the Australian immigration visa applicant. The proposed employer submitted it was not his intention to withdraw his sponsorship and he still wanted the Australian immigration visa applicant to work for him. The Australian immigration visa applicant also claimed that while the IELTS test results that accompanied the application showed the Australian immigration visa applicant achieved an overall score of 4.0 a further test showed an overall score of 4.5.

Held: Decision under review set aside

The Tribunal found there was a preliminary jurisdictional question because it appeared the Australian immigration visa applicant was not sponsored by an approved sponsor when he lodged the review application as required by s.338(2)(d) of the Act and 4.02(1A) of the Regulations. However, the Tribunal took into account that the Australian immigration visa applicant’s business nomination was the only one linked to a nominee and the withdrawal referred only to the nomination number, not the Australian immigration visa applicant’s name. It accepted that confusion may have arisen between the proposed employer and the Department as it considered it unlikely the proposed employer intended to withdraw the only nomination with a nominee. The Tribunal afforded the proposed employer and the Australian immigration visa applicant the benefit of the doubt and accepted that there was no intention to withdraw the Australian immigration visa applicant’s nomination. It therefore found the withdrawal was not legally effective and it had jurisdiction in the matter. The Tribunal then considered whether the Australian immigration visa applicant had a level of English language proficiency equivalent to at least the level required to achieve an IELTS test average band score of 4.5 on the 4 test components of speaking, reading, writing and listening. The Tribunal had regard to the later IELTS test results and was satisfied the Australian immigration visa applicant had the requisite level of English proficiency and was satisfied he met cl.457.223(4)(eb) of the Regulations for the grant of the visa.

0801920
16 April 2009, Melbourne
Mr D Young, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 (BUSINESS (LONG STAY)) – CL.457.223(4) – PERSONAL ATTRIBUTES AND EMPLOYMENT BACKGROUND – A delegate of the Minister refused to grant the visa Australian immigration visa applicants a Subclass 457 visa on the basis that the first named visa Australian immigration visa applicant did not satisfy cl.457.223(4)(d) of the Regulations because the Australian immigration visa applicant did not have personal attributes and an employment background that were relevant to and consistent with the nature of the activity to be performed. The review Australian immigration visa applicant sought approval as a business sponsor of the position of farm overseer. The responsibilities described by the review Australian immigration visa applicant included the daily organisation and managing of the farm and staff of a 1000 acre, commercial flower farm. The visa Australian immigration visa applicant claimed to be a farm manager on a 4 acre allotment in Albania. He claimed his duties included planning and directing work, induction and training of two horticultural staff and growing crops which required little maintenance. The visa Australian immigration visa applicant submitted a Certificate III in Production Horticulture, the result of a college interview assessing his work experience and skills.

Held: Decision under review affirmed

The Tribunal noted that the position to be filled was described as a farm overseer in ASCO Code 4611-11, which required an Australian Qualifications Framework Certificate III or higher qualification and at least three years’ relevant experience. The Tribunal accepted on the evidence that the visa Australian immigration visa applicant had some farming experience of a very general and non-specialised character on a very small allotment in Albania, growing crops the majority of which required little maintenance once planted. The Tribunal found that his duties were primarily ‘hands on’ farming activities and he had minimal or no supervisory or managerial experience. His skills did not remotely approximate the skills required in the nominated position as farm overseer of a large, highly-organised commercial flower farm. Consequently, the Tribunal found the visa Australian immigration visa applicant did not satisfy cl.457.223(4)(d). The Tribunal rejected as devoid of credibility the purported Certificate III in Production Horticulture conferred on the visa Australian immigration visa applicant after a brief college interview. Therefore, the Tribunal was not satisfied that the visa Australian immigration visa applicant possessed the skills required to perform the duties of the nominated position and did not meet cl.457.223(4)(e). Accordingly, the Tribunal affirmed the decision not to grant Temporary Business Entry (Class UC) visas.

0802333
26 May 2009, Sydney
Mr D O’Brien, Principal Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 (BUSINESS (LONG STAY)) – CL.457.223(4)(e) – SKILLS – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 457 visa on the basis that he did not satisfy cl.457.223(4)(e) of the Regulations as he did not demonstrate he had the skills necessary to perform the nominated activity of cook. A Departmental site visit revealed that several employees at the restaurant where the visa Australian immigration visa applicant worked did not recognise him and there were discrepancies about who was responsible for the purchase of food items. The visa Australian immigration visa applicant conducted a cooking demonstration during the site visit and the Departmental officers considered he moved slowly, he had difficulty lighting the wok, he spilt some food and that his uniform was immaculately white. The review Australian immigration visa applicant, who is the director of a noodle and sushi business, claimed that it was not surprising that employees could not recognise the visa Australian immigration visa applicant because in such a large enterprise the kitchen staff remained separate from other staff and used a separate entrance. Also, a large restaurant would have its own food procurement department and it may not be uncommon for the head chef to make suggestions about purchases. The visa Australian immigration visa applicant claimed that he was nervous during the cooking demonstration because it came at the end of a long interview and his uniform was white because it was the start of his working day. The review Australian immigration visa applicant claimed that she was unsuccessful in retaining a long term cook and that the manager of the restaurant next door helped her during busy periods. She claimed that for the business to further develop, she needed a Chinese style cook long term. The review Australian immigration visa applicant stated that the visa Australian immigration visa applicant’s qualifications were of a high level for a cook and she did not want a chef who might be expected to have higher level qualifications. She proposed that the visa Australian immigration visa applicant would principally be the stir fry noodles and rice cook. A DVD was provided showing the visa Australian immigration visa applicant cooking on his wok, slicing food, adjusting heat controls for his large wok and handling the wok.

Held: Decision under review set aside

The Tribunal accepted the evidence from the review Australian immigration visa applicant that the visa Australian immigration visa applicant’s qualifications were appropriate for a cook and a higher qualification was not necessary for someone who was a cook rather than a chef and that the visa Australian immigration visa applicant demonstrated the skills necessary to perform the tasks of a cook. The Tribunal was satisfied from its viewing of the DVD that the visa Australian immigration visa applicant handled cutting implements with skill and that he cooked in a wok with the expertise normally expected in Chinese style cooking. The Tribunal was somewhat mystified as to why the delegate placed very little weight on this evidence. The Tribunal was also satisfied with the explanation for the blemishes exhibited by the visa Australian immigration visa applicant during the cooking demonstration and was further satisfied with explanations given for the other matters which had concerned the Department. Accordingly, the Tribunal found the visa Australian immigration visa applicant met the criteria in cl.457.223(4)(e) of the Regulations for the grant of a Subclass 457 visa.

0901027
12 August 2009, Sydney
Mr S Roushan, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 (BUSINESS (LONG STAY)) –
CL.457.221(a) – RELEVANT VISA HOLDER – A delegate of the Minister refused the Australian immigration visa applicant’s Subclass 457 visa application as the visa Australian immigration visa applicant did not satisfy cl.457.221A, because he was not the holder of a relevant visa at the time of application and he was outside Australia at the time of application. The review Australian immigration visa applicant was approved as a Standard Business Sponsor and the visa Australian immigration visa applicant was subsequently nominated for the position of Floor Finisher. A short time later, the visa Australian immigration visa applicant arrived in Australia on a Subclass 976 Electronic Travel Authority (Visitor) (ETA) visa which was valid for three months. At the time of the delegate’s decision, the visa Australian immigration visa applicant did not meet the requirements of cl.457.221A as he was not the holder of a visa that appeared in this subclause. The Australian immigration visa applicant submitted that a Bridging visa application was initially lodged with the Department during the validity of his visitor visa, and that it was subsequently followed up several times. He claimed that at no point were the parties advised that the visa Australian immigration visa applicant would cease to hold a valid visa on the cessation of the Visitor visa. The visa Australian immigration visa applicant subsequently became unlawful and remained so for almost three months until he was granted a Bridging visa E (BVE). A short time later, the visa Australian immigration visa applicant was granted the Bridging Visa A (BVA) which he had initially applied for and which he continues to hold. The bridging visa could not be “pre-dated” and the parties were advised that the delegate’s decision relating to the Subclass 457 visa remained in force. The review Australian immigration visa applicant’s representative stated that it was the intention of the parties to seek Ministerial intervention.

Held: Decision under review affirmed.

The Tribunal accepted that the visa Australian immigration visa applicant applied for a Temporary Business Entry (Class UC) visa, and that a short time later he arrived in Australia on an ETA Subclass 976 visa and that he had remained in Australia since. The Tribunal found that at the time of the delegate’s decision, the visa Australian immigration visa applicant was not the holder of any substantive visa, and that the visa Australian immigration visa applicant continued to hold a BVA. The Tribunal found that whilst it appreciated that the visa Australian immigration visa applicant’s failure to meet the requirements of cl.457.221A may have been due to misunderstandings and genuine mistakes, the Tribunal did not have the discretion to waive the requirements in cl.457.221A. The Tribunal was satisfied that, at the time of lodging his application, the visa Australian immigration visa applicant was outside Australia. The Tribunal was also satisfied that the visa Australian immigration visa applicant entered Australia on an ETA visa and therefore he was not the holder of a visa mentioned in cl.457.211(a), (b), (c) or (ca). Accordingly, the Tribunal found that the Australian immigration visa applicant did not satisfy the requirements of cl.457.221A. The Tribunal accepted the review Australian immigration visa applicant’s evidence that he ran a successful timber flooring business and that over the years he had found it extremely difficult to find skilled labour in Australia, which had stopped his business from growing and had caused him much anxiety. It further accepted that, on the basis of these circumstances, it was open to the review Australian immigration visa applicant to seek Ministerial intervention. The Tribunal affirmed the decision under review and found that the Australian immigration visa applicant did not satisfy the requirements of cl. 457.221A of the Regulations.

0904595
24 August 2009, Sydney
Ms L Mojsin, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 (BUSINESS (LONG STAY)) – CANCELLATION – S.116(1)(g) – APPROVED BUSINESS SPONSOR – A delegate of the Minister cancelled the Australian immigration visa applicant’s Subclass 457 visa under s.116(1) on the basis that the Australian immigration visa applicant’s sponsorship had been cancelled. The Australian immigration visa applicant’s subclass 457 visa was granted on the basis that he worked for Pari Australia Pty Ltd, the business sponsor, as a welder. Pari Australia Pty Ltd was an approved business sponsor. The Australian immigration visa applicant claimed that he did not know that his visa had been cancelled until his friend telephoned him and informed him that he had received notification of cancellation of his own visa. The Australian immigration visa applicant had provided an email address to the Department to receive documents. The Australian immigration visa applicant claimed that he did not receive an email or any letters or telephone calls from the Department about his visa cancellation. As he did not have access to a computer, he claimed that he did not check his email until his friend telephoned him. The Tribunal was informed that the sponsor became insolvent and closed his business in early 2009, leaving the Australian immigration visa applicant and other workers being owed wages. The Australian immigration visa applicant claimed that he was given no notice of the company’s closure. The Australian immigration visa applicant subsequently found a new sponsor and provided documents to the Tribunal in relation to his intended sponsor, Wunda Projects Australia Pty Ltd.

Held: Decision under review set aside

The Tribunal accepted that the approved business sponsor, Pari Australia Pty Ltd, became insolvent and as a consequence the Department cancelled its sponsorship approval. It found that there was no information on the file to suggest that the delegate had followed the procedures set out in subdivision E of the Act for the cancellation of visas under section 116 (General power to cancel), other than a copy of the delegate’s decision, showing an email address and a mailing address for the Australian immigration visa applicant. The Tribunal noted that the procedure set out in Subdivision E of the Act requires that a Notice of Intention to Consider Cancellation of the visa provided to the Australian immigration visa applicant should clearly set out the grounds of the alleged breaches. The Tribunal noted that there was no copy of a Notice of Intention to Cancel the visa provided on the Departmental file, nor was there any information on the file to indicate the mode of service of the Notice of Cancellation of the visa pursuant to s.116(1). The Tribunal also noted that the Notice had an email address written on it without any other information, such as information indicating that an email was sent to the Australian immigration visa applicant. The Notice provided a street address for the Australian immigration visa applicant; however, there was no information as to whether the document had been sent by post. The Tribunal was not satisfied that the Australian immigration visa applicant had been served with a notice of the grounds on which the cancellation was being considered. Therefore, it found that the power to cancel the Australian immigration visa applicant’s visa did not arise. The Tribunal went on to state that the Australian immigration visa applicant had no responsibility for the breach as his sponsor became insolvent and closed the business without notice, and that these circumstances were beyond the Australian immigration visa applicant’s control. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the Australian immigration visa applicant’s Subclass 457 visa.

26 August 2009, Melbourne
Ms N Burns, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 (BUSINESS (LONG STAY)) – CANCELLATION S.116(1)(a) – CEASED TO BE EMPLOYED – A delegate of the Minister cancelled the Australian immigration visa applicant’s Subclass 457 visa under s.116(1) on the basis that the Australian immigration visa applicant’s sponsor notified the Department that they had withdrawn their sponsorship as the Australian immigration visa applicant had left their employ as a cook without notification. Accordingly, the Department issued a notice of intention to consider cancelling the Australian immigration visa applicant’s visa. The Australian immigration visa applicant then submitted that he was looking for another sponsor and requested more time to do so. The Australian immigration visa applicant subsequently claimed in a statutory declaration that the owner of the business, who was a distant relative, exploited him. He claimed that he used to work 80 hours per week and was paid only $1,500 per month, nor did he receive any payslips. The Australian immigration visa applicant claimed that when he raised the issue about his salary his employer argued that he was already paying tax, work cover and superannuation for the Australian immigration visa applicant and he refused to pay him more. The Australian immigration visa applicant stated that due to problems with his knees resulting from overwork he went to India for a month for treatment and it was during this time that his employer withdrew his sponsorship. The Australian immigration visa applicant claimed that he made a complaint to the Workplace Ombudsman who informed him that they could not take any action due to a lack of evidence. The Australian immigration visa applicant subsequently submitted a letter to the Tribunal in which he stated that he had found a new employer that was willing to sponsor him. He attached a letter from the Director of MKS International which stated that he was willing to employ the Australian immigration visa applicant as a cook in their retail shop and take away food business.

Held: Decision under review affirmed

The Tribunal was satisfied that the Australian immigration visa applicant’s former sponsor withdrew their consent to sponsor the Australian immigration visa applicant in writing. The Tribunal was therefore not satisfied that the Australian immigration visa applicant was sponsored by an approved sponsor within the meaning of 1.40D, hence, the Tribunal found that the grounds for cancellation in s.116(1)(a) existed. The Tribunal then considered whether the power to cancel the visa should be exercised, having regard to all the circumstances. The Tribunal found that the fact that the Australian immigration visa applicant no longer worked for the sponsoring employer undermined the very purpose of the visa which had been granted, and that the Australian immigration visa applicant had not secured a new sponsor. The Tribunal noted that MKS International had indicated that they wished to employ the Australian immigration visa applicant, however, they had not made any effort to apply to sponsor the Australian immigration visa applicant. It found that although the Department and the Tribunal had provided ample time for the Australian immigration visa applicant to find a new sponsor, to date there had been no sponsorship application or related visa application supporting such an agreement; that is, a period over nine months. Although the Australian immigration visa applicant argued that his circumstances were made difficult because his previous sponsor was not likely to be supportive of him finding new employment and was not providing positive references on his behalf, the Tribunal found that given the Australian immigration visa applicant had made efforts to find a new sponsor over a long period to no avail, it was reasonable for it to assume that the Australian immigration visa applicant was not likely to find employment in the near future. The Tribunal stated that it had some sympathy for the way the Australian immigration visa applicant was unfairly treated by his employer, however, it found that it was not within it’s remit to investigate or make findings as to whether the Australian immigration visa applicant’s former employer was exploitative or not. Nor was it for the Tribunal to rectify any perceived unfairness by the sponsor to the Australian immigration visa applicant. It found that these circumstances did not outweigh the grounds for cancelling his visa.

0804662
16 November 2009, Melbourne
Mr P Tyler, Member

TEMPORARY BUSINESS ENTRY (CLASS UC) – SUBCLASS 457 BUSINESS (LONG STAY) – CL.457.223(4) – NOMINATED OCCUPATION – A delegate of the Minister refused to grant the Australian immigration visa applicant a Subclass 457 visa as the delegate was not satisfied the Australian immigration visa applicant had the required skills, experience or employment background necessary to perform the approved nominated occupation of cook. The review Australian immigration visa applicant claimed that he first met the visa Australian immigration visa applicant when he came to Australia about three years ago through family connections. The visa Australian immigration visa applicant claimed that he was the chef and manager of a restaurant in Lebanon and that he had owned a 50% share of the business since 2001. The visa Australian immigration visa applicant gave oral evidence that the cuisine at the review Australian immigration visa applicant’s restaurant in Australia was Lebanese. The review Australian immigration visa applicant advised that he owns three shops in Albury, being two chicken take-away shops and an Italian restaurant at which he plans to employ the visa Australian immigration visa applicant. He is confident that the visa Australian immigration visa applicant is capable of performing the tasks required of a cook and that he will do a good job. He also claimed that the visa Australian immigration visa applicant had told him that he is trained in Italian cuisine. The review Australian immigration visa applicant claimed he did not know what cuisine was served by the visa Australian immigration visa applicant’s restaurant in Lebanon.

Held: Decision under review affirmed.

In considering whether the visa Australian immigration visa applicant’s intention to perform the nominated occupation of ‘cook’ was genuine and whether the position associated with the nominated occupation was genuine, the Tribunal had regard to the following matters: the fact that the review Australian immigration visa applicant did not know the type of food served in the visa Australian immigration visa applicant’s restaurant in Lebanon; the statement by the visa Australian immigration visa applicant’s partner’s brother to Departmental officers to the effect that the visa Australian immigration visa applicant did not have an ownership interest in the restaurant in Lebanon; the statement on the visa Australian immigration visa applicant’s visitor visa application stating that his duties were “customer service in the restaurant”; and the visa Australian immigration visa applicant’s oral evidence that the cuisine at the review Australian immigration visa applicant’s restaurant in Australia was Lebanese. The Tribunal was not satisfied with the review Australian immigration visa applicant’s explanations for these discrepancies and inconsistencies in evidence. All of these issues went to the genuineness of both the review Australian immigration visa applicant and the visa Australian immigration visa applicant and the Tribunal had expected them both to know these details. As such, this led the Tribunal to doubt the genuineness of the visa Australian immigration visa applicant’s intention to perform the occupation that is the subject of the nomination and the genuineness of the creation of the position. Accordingly, the Tribunal was not satisfied that the Australian immigration visa applicant’s intention to perform the occupation of ‘cook’ was genuine and that the position associated with the nominated occupation was genuine. The Tribunal therefore found that the visa Australian immigration visa applicant did not meet the requirements of cl.457.223(4) of the Regulations.

Related Australian Immigration Appeals Articles:

Australian Immigration: Appeal Decisions 2010

• Australian Immigration: Business & Skills Visas - 2010
• Australian Immigration: Family Visa - 2010
• Australian Immigration: Partner Visas - 2010
• Australian Immigration: Student Visas - 2010
• Australian Immigration: Other Visas - 2010

Australian Immigration: Appeal Decisions 2009

• Australian Immigration: Family Visas - 2009
• Australian Immigration: Partner Visas - 2009
• Australian Immmigraiton: Student Visas - 2009
• Australian Immigration: Other Visas - 2009

Australian Immigration: Appeal Decisions 2008 - coming soon

• Business & Skills Visas
• Family Visas
• Partner Visas
• Student Visas
• Other Visas

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