Some Practice Decisions

 
 

SCHEDULE 3

 

Many potential subclass 457 visa applicants stumble into being illegal and therefore fall foul of paragraph 3004 which reads:

3004    If the applicant:

(a)   ceased to hold a substantive… visa…; or

(b)   …;

the Minister is satisfied that:

(c)   the applicant is not the holder of a substantive visa because of factors beyond the applicant’s control; and

(d)   there are compelling reasons for granting the visa; and

(e)   the applicant has complied substantially with:

(i)    the conditions that apply or applied to:

(A)  the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

(B)  any subsequent bridging visa; or

(ii)   the conditions that apply or applied to:

(A)  the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

(B)  any subsequent bridging visa; and

(f)    either:

(i)    in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

(ii)   in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

(g)   the applicant intends to comply with any conditions subject to which the visa is granted; and

(h)   if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

 

In Donovan 1401037 [2015] MRTA 465 (8 April 2015), the MRT took quite a benign approach to a situation involving a working holiday visa holder who says he ‘thought’ he had applied for s tourist visa when the working holiday visa expired. In fact he had not and was illegal for several weeks. He then applied for a subclass 457 visa and was hit by paragraph 3004. Here is how the MRT found for the applicant:

17….The applicant claims that the Department acknowledged that the issues concerning his unsuccessful attempt to validly lodge a tourist visa application had been the product of human error.

18.Having considered all the circumstances of this matter, the Tribunal must determine whether the applicant was not the holder of a substantive visa because of factors “beyond the control” of the applicant.

19.The Tribunal has had regard to the remarks of Smith FM in Su & ors v Minister for Immigration and Citizenship. After indicating that the test is in that sense subjective, Smith FM held:

“… what is ‘beyond control’ should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense. A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision.”

19.Having had regard to the representative’s submissions citing department policy in relation to cases involving invalid applications made inadvertently by applicants, the Tribunal is satisfied that the circumstances of this case do involve the applicant having become unlawful in circumstances where the applicant had, in good faith, attempted to validly lodge a visitor visa application following advice from the Department, which unbeknownst to the applicant and for reasons which remain unclear did not result in a valid application having been made.

20.The Tribunal is satisfied that when the circumstances became known to the applicant, the applicant followed directions and acted expeditiously to regularise his status, making the present application within the period allowed to him.

20.Accordingly, on the basis of applicable case law and consistently with departmental policy from which the Tribunal in this instance sees no reason to depart, the Tribunal is satisfied that the applicant was not the holder of a substantive visa at the time of application because of factors beyond his control.

On ‘compelling reasons’, the MRT found as follows:

25.The applicant has been nominated by an Australian business operating in the hospitality sector to perform the role of Restaurant Manager. The Tribunal accepts submissions and evidence before it concerning the adverse impact on the nominating employer should the applicant not be granted a visa permitting him to perform this role in an apparently successful Australian business. The impact of losing an applicant with the skill set apparently possessed by the applicant and a demonstrated cultural fit within the organisation may include adverse effect on the business’s operations and potentially upon employment of other Australian staff.

26.In considering compelling reasons, the Tribunal also takes into account the very circumstances which led the applicant to be in his present situation of not being the holder of a substantive visa when the application was lodged, which were beyond the applicant’s control.

27.Taking the circumstances into account on a cumulative basis, the Tribunal finds that there are compelling reasons for the grant of the visa to the applicant.

 

SKILLS

 

In Lima 1408238 [2015] MRTA 467 (1 April 2015) the applicant had no formal qualifications as a dental technician but was still regarded by the MRT as meeting cl.457.223(4)(da) which reads:

the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; 

The ANZSCO stated this in relation to Dental technicians:

UNIT GROUP 4112 DENTAL HYGIENISTS, TECHNICIANS AND THERAPISTS

DENTAL HYGIENISTS, TECHNICIANS AND THERAPISTS provide supportive dental services in preventative and restorative dental procedures, and construct and repair dental appliances.

Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

In Australia:

AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

The sponsor was a dentist in a remote area of the Northern Territory. He gave extensive evidence that the applicant has developed skills on the job in both the UK and Australia, rising from a position of dental nurse. The dentist told the MRT that ‘…in the Northern Territory there is currently no requirement for Dental Technicians to be registered as they work under the auspices of a Dentist and there is no requirement for minimum qualifications.’

The MRT concluded:

17.Considered overall the tribunal is of the view that through her work experience in Australia and the United Kingdom from 2006 to the present that the applicant has more than three years of relevant experience in respect of areas of work associated with dental technology which substitute for the formal qualifications which are available in the field

 

CUSTOMER SERVICE MANAGER

The writer is aware that the Department has been drilling down on nominations where the ANZSCO occupation of Customer Service Manager 149212 has been nominated. There has been internal concern within the Department that the occupation of Customer Service Manager is being abused, similar to the alleged abused that occurred with the occupation of Program or Project Administrator 511112.

It is recommended that a strong business case supported by documentary evidence like financial records, organisation chart, letters of support from clients, contracts between the employer and business clients, policy manuals and customer service procedures be provided as part of the application.

See Sebastian 1114404 [2013] MRTA 1623 (10 July 2013) and note this very useful comment at paragraph 42:

  • The Tribunal acknowledges that the nominating business is small, and can in many respects be characterised as “top-heavy”. However, the Tribunal does not consider the lack of staff underneath the applicant’s direction and management to undermine the claim that the applicant otherwise performs tasks and duties directly within the definition of Customer Service Manager. In this regard the Tribunal gives weight to the responsibilities in the role articulated by the nominator in his letter reproduced under paragraph 26 above. The Tribunal considers that the duties as described are integral to the nature of the nominator’s business.

 

See also Meguideche 1412887 (Migration) [2015] AATA 3100 (10 July 2015) and note paragraphs 63 to 69:

  1. The Tribunal has had regard to the applicant’s evidence about the business’ requirements for the position. It considers the written and oral submissions made to the Tribunal to be persuasive. Based on the additional information provided, the Tribunal is of the view that the business’ needs are more complex than the delegate concluded. For the following reasons it accepts the position associated with the nominated occupation is genuine.
  2. The Tribunal accepts that the business operates as a wholesale Kosher certified patisserie and supplies a range of retail and other wholesale businesses. It accepts that the position of Customer Service Manager plays a pivotal role in ensuring the Kosher certification is maintained by devising and implementing policies and procedures relevant to ensure the quality and Kosher certification of suppliers and employee training in respect of Kosher work practices. It accepts that the business requires a manager with experience and knowledge of Kosher food preparation as well as business development, reporting, management and financial systems. It accepts that the position maintains the Kosher certification standards, policy and training within the business, and that the position is the primary contact for all wholesale customers and continually maintains and monitors customer satisfaction, and liaising with customers about the development of new products. The position maintains records and reports and develops and implements strategies to improve sales and service to customers. It takes responsibility for developing and maintaining customer relationships and strategies. The business has eight employees, including the owner and the nominee. There are two pastry chefs, two bakery hands, one bakery assistant, one receptionist and one cleaner. The position supervises and trains all employees in respect of the maintenance of Kosher certification.
  3. The Tribunal is satisfied based on the business’s financial statements that it is a growing business. Its customers include supermarkets, retail stores, synagogues and hotels.  Due to its strong growth, the Tribunal accepts the business is in the process of expanding to a second location.
  4. The Tribunal accepts the representative’s submissions that the business is highly specialised in nature, that maintenance of Kosher certification is fundamental to the business’ operations and the business’ ongoing growth over the past 14 months supports the view that the role of Customer Service Manager is clearly relevant to the business activities.
  5. Overall having considered the position description provided in writing and at the hearing, the Tribunal is satisfied the position will develop and review policies and procedures concerning customer relations and goods and services provided and the maintenance of its Kosher certification, provide direction and feedback to employees, assist with recruitment, management and training staff, liaise and follow up on customer satisfaction.
  6. Having regard to the tasks typically included in the occupation Customer Service Manager as described in the ANZSCO and the duties of the nominated position, particularly in the context of the nature and operations of the business, the Tribunal is satisfied that the tasks of the position are consistent with the occupation Customer Service Manager. The Tribunal is accordingly satisfied that the position associated with the nominated occupation of Customer Service Manager is genuine.

 

In contrast, in R & L Company Pty Ltd 1419629 (Migration) [2015] AATA 3178 (21 July 2015) where the Tribunal accepted that the business genuinely needed the employee but nonetheless found that the position was not genuine as the customer service position was ‘operational’ and more aligned with that of a Retail Supervisor than that of a Customer Service Manager. Note paragraphs 34 to 37:

  1. Having heard the applicant’s oral evidence about the position’s duties, and the nature of the business, the Tribunal considers the written descriptions provided to the Department and the Tribunal to be embellished. It has formed the view the applicant was given ample opportunity at the hearing to provide detailed evidence of the position’s duties. When it was put to the applicant that his oral description of the position’s duties did not include any mention of developing and reviewing policies, the applicant merely indicated that he would meet with the position to identify ways of increasing sales. Taking into account the size and nature of the business, the Tribunal is satisfied the applicant’s oral evidence on the position’s duties is reliable. The Tribunal is satisfied the position’s duties include coordinating the day’s schedule so that cars are ready at pick-up time, maintaining good relationships with the loyalty customers, taking payments, guiding the staff regarding the plans for the day, checking how many cars are to the washed and staffing, dealing with complaints and enquiries, going to the dealers to check if any cars need washing, and training staff in current promotional offers andthe various car washing options.
  2. The Tribunal is not satisfied that these duties are consistent with the types of tasks included in the ANZSCO definition for the occupation of Customer Service Manager. Although some of the position’s tasks involve maintaining good customer relations and ensuring customer satisfaction, in the context of the applicant’s car wash business, the Tribunal considers that they are carried out at a basic level and are tasks common to many customer service or supervisory positions in businesses that provide goods and services in a retail setting. The Tribunal acknowledges that the applicant wishes to expand his business and needs the nominee to ensure that customers are provided with the highest level of service. However, providing good customer service, supervising and training car wash staff, and ensuring quality services are not, in the Tribunal’s view, sufficient to classify the position as Customer Service Manager. The Tribunal considers this position to be operational rather than managerial.
  3. The Tribunal considers that Customer Service Managers typically work in larger businesses where they focus on customer relations and standard of service issues, which involve planning, administering and reviewing customer services, after-sales services and maintaining sound customer relations. It considers the occupation to be managerial rather than operational. When this was discussed with the applicant at the hearing, he merely repeated that he needs the position to look after customers so that he can grow the business.
  4. The Tribunal considers the tasks needed to be undertaken in this business to be more consistent with tasks included for a supervisory front line role, such as a retail supervisor. They do not, in the Tribunal’s view, demonstrate that the position involves developing, reviewing and implementing customer service policies, programs and procedures at the level described in the ANZSCO.

 

TEMPORARY SKILLED MIGRATION INCOME THRESHOLD (TSMIT)

 

The subclass 457 visa is not meant for lower paid work as illustrated in Dragon 1414671 (Migration) [2015] AATA 3287 (17 August 2015). Here the sponsor employed cooks on RSMS visas on a salary of between $39,000 and $41,000 per annum, far less that the TSMIT ($53,900 per year).  The other issue was that the sponsor operated primarily a fast food and take away outlet which closed at 2.30pm.

Reg 2.72(10)(cc) required :

 

(cc)    the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

(i)      are provided; or

(ii)     would be provided;

to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph;

Even though the sponsoring employer undertook to pay more than $53,900, the employer fell foul of the provision because other cooks earnt far less than that figure.  There is provision to excuse that requirement :

 

Reg 2.72 (10A)  The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

(a)     the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

(b)     the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

(c)     the Minister considers it reasonable to do so.

 

But the Tribunal declined to exercise the power under that provision.

Takeaway food outlets employing staff on low wages are not an attractive proposition

Barbara DavidsonSome Practice Decisions