Some Practice Cases

Similar to what is happening in the skilled visa area, the MRT is taking a practical approach to errors in visa application forms particularly over incorrect specifying of ANZCO numbers. A good example is Ashton 1303088 [2014] MRTA 40 (9 January 2014)

4.The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(a)(iii) of the Regulations. The delegate found that the occupation identified in the nomination application (Master Fisher) did not have the same ANZSCO code as the occupation carried out by the holder of the relevant Subclass 457 visa holder (Fishing Hand).

But the MRT found:

23.However, in considering what relevant occupation ‘the application for approval’ has identified for the purpose of r.5.19(3)(a), the Tribunal considers that it must consider all the supporting evidence provided with the application, not simply what was contained on the application form itself. In this case, the Tribunal accepts that Mr Ashton made a simple mistake and had intended to put the occupation of Fishing Hand with the ANZSCO code 8992-12 on the application form. The Tribunal accepts that he was unfamiliar with the application process and the way the ANZSCO codes are structured. The Tribunal accepts that he based the nominated occupation on commonly understood industry terminology, rather than a detailed consideration of the ANZSCO codes. In considering the supporting evidence lodged with the application, the Tribunal accepts that the revised employment agreement in paragraph 15 lists the duties of a Fishing Hand, as the set out in ANZSCO 8992-12, as the relevant duties for occupation. Mr Ashton’s oral evidence at the hearing also described the duties of the occupation as that of a Fishing Hand, not a Master Fisher.

Based on all of the supporting evidence provided with the application, the Tribunal is satisfied that the application for approval identified the occupation in relation to the position as Fishing Hand, with an ANZSCO code of 8992-12. The Tribunal is satisfied that this occupation is listed in ANZSCO and that it carries the same 4-digit occupation unit group code as the occupation carried out the nominee as the holder of a Subclass 457 visa.

A similar decision was made in a case conducted by the writer in International House 1217201, 13 May 2014. Here the original agent had put a nominated occupation (Accommodation and Hospitality Managers nec (ANZSCO 141999)) in the application form which was not on the then ENS list of occupations. At hearing stage evidence was presented that the occupation was really Hotel or Motel Manager (ANZSCO 141311). The MRT found:

The Tribunal has also had regard to the information provided about the importance of the nominated position in the applicant’s strategic plans, and the letter of support from the applicant in relation to the nominee, which further highlights the nominee’s actual responsibilities and his contributions to the applicant’s operations. The Tribunal has also had regard to the submissions from the applicant’s representative in relation to the criterion in r.5.19(2)(h), in particular that the actual tasks of the position need to be considered rather than the label the position may have been given, and that an ANZSCO occupation description is an indicative guide and should not be regarded as a definitive or prescriptive statement in relation to an occupation.

The Tribunal funds that the evidence strongly supports a finding that the tasks of the nominated position are consistent with and correspond to the tasks of the occupation of Hotel or Motel Manager (ANZSCO 141311). Although the applicant’s operations are geared to longer-term student bookings, the Tribunal is satisfied that the nominated position is tasked with managing a facility that operates on a scale that is consistent with, the scale of operations of a hotel or motel. In the Tribunal’s view, the range of tasks and responsibilities of the nominated position corresponds to a high degree to the tasks and responsibilities of the occupation of Hotel or Motel Manager as described in ANZSCO. The Tribunal considers that the tasks and responsibilities are more extensive and carried out on a larger scale than those described in the occupation of Accommodation and Hospitality Managers nec (ANZSCO 141999).

Here is the extract of submissions made regarding the ANZCO:

It is important to note what the ANZCO dictionary states about its own methodology.

Here are some useful headings from the ANZCO (see attachment) :

INTERPRETING ANZSCO OCCUPATION DEFINITIONS

ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation usually necessary to perform the tasks of the specific occupation, or of most occupations in the group. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively.

The definitional material describing each occupation is intended primarily as an aid to interpreting occupation statistics classified to ANZSCO. The descriptions are, therefore, only a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required.

CONCEPT OF OCCUPATION

The categories at the most detailed level of the ANZSCO structure are called ‘occupations’. An ‘occupation’ is defined as a set of jobs that require the performance of similar or identical sets of tasks. As it is rare for two actual jobs to have identical sets of tasks, in practical terms, an ‘occupation’ is a set of jobs whose main tasks are characterised by a high degree of similarity.

INTERPRETING ANZSCO OCCUPATION DEFINITIONS

[Emphasis added]

The effect of the above is that the ANZCO is not meant to be a straight jacket.

Not every employer offering accommodation to the public will do so in the same way. Indeed with the advent of Expedia and ‘What if’ and Craig’s List, the accommodation sector is now diverse and itself is not able to be easily categorised into uniform boundaries.

International House offers students hotel/motel type accommodation during semester and during non-semester offers such accommodation to the public. It also operates traditional hotel/motel services like conference facilities and a bar.

The other factor to be taken into account is that there is no ‘time of application’ and ‘time of decision’ dichotomy regarding meeting the criteria for an employer nomination under Reg 5.19.

Hence all of the evidence produced up to time of decision before the MRT is relevant to the determination of a nomination.

Another practice case is SK Billinudgel 1312342 [2014] MRTA 2079 (10 September 2014) where there was a substantial re-vamping of the case at the MRT stage.

In Papaya 1200213 [2013] MRTA 2766 (30 October 2013) the delegate refused on this basis:

4.The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a), (b) and (d) of the Regulations because the delegate was not satisfied the employer had financial capacity to employ the nominated applicant for at least two years. Further the delegate was concerned that given the low amount of total wages for the business, it appeared other staff may not have been paid according to relevant awards.

But the MRT found:

14.At the hearing Ms Nheen gave oral evidence about the annual turnover of the business and explained how the business pays the employees it has. The Tribunal invited the applicant to provide up to date financial documents, and this was provided on 20 September 2013. There is no doubt the restaurant is running at only a small profit, and that the owners are currently receiving no wages from the business. The employer works full-time in another capacity and for this reason is financially able to run the restaurant without taking a wage from it. Whilst the Tribunal shares the delegate’s concerns about the viability of the restaurant, the Tribunal also accepts the restaurant has been operational for 12 years, and that it has been able to pay the wages of the visa applicant for the last 6 years. There is nothing to indicate this could not continue. The applicant spoke at the hearing of viable plans to expand the business into catering, but that she has put all such plans on hold until they know if the visa applicant will be granted the visa.

15.The evidence before the Tribunal, including oral evidence and financial documents, support a finding that the restaurant continues to actively and lawfully operate. The nominated visa applicant has worked at the restaurant since 2007. The Tribunal gives this weight as evidence of the need for the applicant as an employee.

Given the above findings, the requirement in r.5.19(4)(a) is met.

Barbara DavidsonOctober 21, 2017Some Practice Cases

Some Practice Cases

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