1402773 (Migration)

[2015] AATA 3097

1402773 (Migration) [2015] AATA 3097 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Palinda Vineyard Pty Ltd

VISA APPLICANTS:  Mr Weishun Wu
Ms Xiao Yan Zou
Miss Rui Wu

CASE NUMBER:  1402773

DIBP REFERENCE(S):  bcc2013/864548

MEMBER:Marten Kennedy

DATE:8 July 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 08 July 2015 at 4:41pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).  The application for review was lodged with the Migration Review Tribunal. From 1 July 2015, the Migration Review Tribunal was abolished. Under the transitional provisions in the Tribunals Amalgamation Act 2015, this application for review is taken to be an application for review to the Administrative Appeals Tribunal (AAT). This means that the tribunal’s decision and reasons are formally a decision and reasons of the AAT.

2. The visa applicants applied for the visa on 15 June 2013. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4). In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

3. The delegate refused to grant the visas on 17 January 2014 on the basis that cl.457.223(4)(d) was not met because the delegate was not satisfied that the first-named visa applicant’s intention to perform the occupation was genuine, and was not satisfied the position associated with the nominated occupation was genuine.

4. The nominated occupation is that of Corporate Services Manager (ANZSCO 132111).  I am told in written submissions that the sponsor is a company that sources and markets Australian wine overseas.  I am told that the position of ‘Assistant Corporate Manager’ works under the Director, Ms Jacky Wong.  Sales for 2013 -2014 were $776 000.

5. ANZSCO describes the role and tasks of a Corporate Services Manager as planning, directing, controlling and coordinating the overall administration of organisations.  Specific tasks include high level administrative strategic planning and operational support, developing and organising administrative financial physical and staff resources, developing and implementing administrative financial and operational procedural statements, analysing complex resource management issues and initiatives, providing information support for the preparation of financial reports on budgets, and representing the organisation in negotiations and at conventions.

6. The visa nominee is Mr Weishun Wu.  The concern as to the genuineness of the position, and the genuineness of the applicant’s intentions to perform the occupation arise from his qualifications, work experience, and responses to enquiries made of him about the position and his intentions by the Australian post in Guangzhou in approximately July 2013.

7. Specifically Mr Wu is a lawyer.  According to his CV, he has practised law as a corporate legal adviser from 2002 to the present with a Chinese law firm.  According to his CV his duties have involved negotiating contracts preparing and filing government reports drafting legal documents and the like.  Previously he was an assistant lawyer with a law firm and before that a dentist.

8. Mr Wu’s CV discloses no direct experience or qualifications in business management directorship of corporations or the like.

9. The concerns in matching the nominee’s qualifications and experience with the particular role and tasks of a corporate services manager lead the Australian post in Guangzhou to contact him.  The department’s record of that contact is set out in the delegate’s decision.  In the course of the conversation the applicant was asked what his nominated occupation entailed and he is reported to have stated that he did not know as he did not ask the nominator.  The nominee is also attributed to have said that he was not sure what the position would be according to Australian standards but as to his understanding it would be as a law professional.  The nominee is also attributed to have said that his occupation in China was a lawyer but he did not have the qualifications to practice in Australia and so the business in Australia nominated another occupation for his visa.

10. At the hearing, I explained to the review applicant that I had regard to the applicant’s CV, the record of the conversation undertaken by the Australian post in Guangzhou, and the written submissions provided to the tribunal on 8 May 2015 as to the nature of the sponsor, its size and the scope of its activities.  I explained that I was concerned in respect of all of this information as to whether the position with the applicant was genuinely that of a Corporate Services Manager, and whether the nominee had a genuine intention to perform the role.

11. I explained that I had also noted that the nominee’s qualifications and experience did not disclose his suitability for the role of a corporate services manager.  I explained that I was concerned by the statements attributed to the nominee to the effect that it had been recognised he could not practice as a lawyer in Australia and so another occupation had been found, and I also explained that having regard to the limited activities of the sponsoring company, the presence of a director, and a relatively low turnover, I questioned whether there could be any need for a corporate services manager given a director of the company was present.  I explained that all these matters raised a very real question for me to consider as to whether there was a genuine intention to perform the occupation, and indeed whether the position itself was genuine.

12. I have had regard to a table prepared by the applicant’s registered migration agent comparing the duties of corporate services manager set out in ANZSCO against duties of the Corporate Services Manager with the applicant.  I have not found the description of the duties with the applicant to be convincing.  For example, I have noted that the duties set out in ANZSCO focus on administrative and operational matters, the development of processes and resources and the like.  The duties described with the applicant in my view pertain more to developing business opportunities, drafting of contracts and managing client relationships.  I have not found that comparative table to be persuasive in order to demonstrate that the applicant’s intention to perform the occupation is genuine or that the position itself is genuine.

13. I have also had regard to an unofficial translation of a statement of the visa applicant provided after the hearing.  In that statement, Mr Wu explains that he was nervous during the phone interview with the Australian post in Guangzhou, and believed there were communication issues because the interviewer spoke with a northern Chinese accent.  Mr Wu states that the interviewer mistook things he had said to mean that he believed the position was as a law professional, and misunderstood his description of past employment as relating to his belief that he would be working in Australia as a lawyer.

14. Mr Wu explained that if his request to postpone the telephone interview to a later date had been accepted, he would have been able to give a clearer and stronger statement to show his knowledge and experience of the nominated position.

15. While I have had regard to the content of that statement, I do not consider the applicant’s recent statement provided to the tribunal in May 2015 attributing error and misunderstandings on the part of the phone interviewer in a conversation in July 2013 to be sufficiently reliable for me to disregard the more contemporaneous summary of the conversation reproduced in the delegate’s decision record. I prefer to rely on the contemporaneous summary of the visa applicant’s answer to questions posed to him in July 2013, and find he made the statements as to his understanding of the nature of the proposed role and the motivations for nominating that occupation to be accurately recorded.  I consider these statements are incompatible with my satisfaction as to the applicant genuinely having the intention of performing the tasks associated with the occupation of Corporate Services Manager.

16. I have had regard to Mr Wu’s statement also as to his opinion as to how his experience in a corporate environment qualifies him to be a Corporate Services Manager.  In this regard, Mr Wu points to working as corporate counsel, drafting and analysing contracts, and his belief that with this experience it is easy for him to advise the applicant on the acceptability of sales contract terms and to ascertain the risks and rewards of each transaction.

17. Mr Wu’s evidence in this regard tends to reinforce my concern that the use of his skills and experience will not be directed to genuine performance of the tasks associated with the occupation of Corporate Services Manager, in the sense that the occupation is described by ANZSCO.   I refer again to the tasks set out in paragraph 5 of these reasons.

18. Having regard to all of the information before me I have formed the view that I am not satisfied that the applicant genuinely requires a Corporate Services Manager.  I am not satisfied that the position reserved for the nominee can reasonably be described as a Corporate Services Manager of the kind described in ANZSCO, and I am not satisfied that the nominee genuinely intends to perform the duties of a Corporate Services Manager with the applicant.

19. I accept that the nominee is a qualified lawyer in China, and it is not my intention that my findings question his qualifications or experience in this regard.  Nor do I suggest that a qualified and experienced lawyer can only ever genuinely perform that specific occupation.    However, my focus is on the nominated occupation in the context of the nominating entity and for the reasons outlined above  I am not satisfied that the position associated with the nominated occupation is genuinely that of a Corporate Services Manager, and I am not satisfied that the applicant genuinely intends to perform that occupation.

20. As such, I find that the applicant does not meet the requirements of cl.457.223(4)(d), and therefore does not meet cl.457.223(4) of Schedule 2 to the Regulations.

21. It follows that I find that the requirements for the standard business sponsor stream have not been met by the primary visa applicant. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

22. I affirm the decision under review in respect of the first-named visa applicant.

23. The remaining visa applicants rely on their status as a member of Mr Wu’s family unit.  As I have affirmed the decision under review in respect of him, the remaining visa applicants cannot satisfy the secondary criteria for the grant of the visa.  It follows that I affirm the decision under review in respect of them also.

    DECISION

    The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Marten Kennedy
    Member