1406382 (Migration)

[2015] AATA 3786

1406382 (Migration) [2015] AATA 3786 (4 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Micheal Saturnino

CASE NUMBER:  1406382

DIBP REFERENCE(S):  BCC2013/749868

MEMBER:Mary-Ann Cooper

DATE:4 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 04 December 2015 at 1:20pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 May 2013.

3. 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) which is set out in the attachment to this decision. 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.

4. The delegate refused to grant the visa on 26 March 2014 on the basis that cl.457.223(4)(da) was not met because s/he was not satisfied that the applicant had the requisite skills.

5. The applicant appeared before the Tribunal on 5 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the General Manager of his employer/sponsor.

6. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).

   Skills, qualification and employment background of the applicant

9. Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is Marketing Specialist (ANZSCO 225113).

10. As recorded in the delegate’s decision, a copy of which was provided with the review application, inconsistent information had been provided in respect of the applicant’s background experience and skills. On this basis, along with the applicant’s lack of formal qualifications for the role as required by ANZSCO, the delegate was not satisfied that he had the required skills and experience as a marketing professional and refused the application.

11. At the hearing the applicant said he had not completed secondary school but had instead started to work and learnt his trade as a stonemason. After this he said he moved to a bigger role within his employer’s company. He said he had undertaken many tasks, some of which involved marketing and promoting the company. He acknowledged the differing descriptions of his previous employment in Italy and explained that the company for which he worked was a small company and did not specify staff roles in a narrow way because everyone was required to ‘do a bit of everything’. He said he had wanted to come to Australia but before doing so had done some research and sent details of his skills and experience to various companies in Australia. He said his current sponsor had responded and told him to come and see them when he was in Australia. He did so and was hired by them and remains employed by them. In terms of his duties he had difficulty explaining them in the context of the ANZSCO tasks, which were also in a large part replicated in his position description.  The Tribunal asked him to describe a typical day and to give examples of what initiatives he had introduced to the company. In summary, he said that he increased the client market for the company by proactively targeting architects and builders, as well as existing clients, and by developing and producing newsletters showing the latest stock which had arrived. In addition he claimed that he had opened up the warehouse, organising the product display so that people could come in to browse their range and order directly. He said his experience meant that he able to competently advise people on the product and how it might suit their needs. He acknowledged that there was no formal marketing plan and that the business did not advertise but said this was because it did not need to do so. He said their point of difference was the quality of the product which they imported from Italy and that this kept the company very busy. He claimed to have developed many further initiatives for the company but because of the uncertainty with his visa status, his employer had not yet approved their implementation.

12. The Tribunal then spoke to the general manager of the applicant’s employer/sponsor. He said the sponsoring company was a small stone supply company comprising four people (including the applicant). His evidence was consistent with that of the applicant as to the circumstances of their meeting and his employment by the company. He said it was very difficult to find a person with the applicant’s skills and background, that is, with an in-depth knowledge of the product (stone) but also how to market it. He said that the company had needed  to move forward and had required someone to market their product and come up with new ideas but the person also needed to be a specialist in stone. He said they also needed someone to update/modernise the marketing tools they had in place, such as their website. He said the applicant had done all these things and more. He attributed the significant increase in the company’s turnover to the changes the applicant had brought to the company in terms of the marketing and promotion of its services. He said as a small company they did not have a formal marketing plan or budget but that they would discuss these issues together, often on a daily basis. The Tribunal asked him to provide more specific examples of the applicant’s skills in marketing. He told the Tribunal that he had identified two weak points in the company’s marketing. One was its lack of engagement with architects, a large stakeholder in the industry in which the company operates. He said the applicant’s introduction of the company to Facebook and his initiative in issuing regular newsletters had raised the awareness of the company with architects and had increased its work. The other “weak point” he identified was the company’s failure to be in front of industry trends. He said the applicant had conducted a great deal of research, had engaged directly with clients and architects, and had identified emerging trends which had enabled the company to be prepared and able to supply what the market was demanding at any particular point in time. He said the applicant’s knowledge of stone had also meant he was able to assist with sourcing new suppliers and was able to make accurate assessments of their reliability. Consistently with the evidence of the applicant, he said that the applicant has many marketing ideas that the company would like to adopt but because of the uncertainty with his visa they had not proceeded with them in case the applicant was not present to implement and progress them.  

13. The Tribunal found the applicant and his employer to be frank and credible witnesses. It accepts that, given the nature of the sponsoring business, it needs a marketing specialist but that the ANZSCO task description is not necessarily reflective of all the duties they require, or that such a specialist might undertake, in a small niche business such as theirs.

14. Noting that it is not bound by Department policy, the Tribunal has had regard to the relevant Departmental policy which provides as follows in PAM3:

    PAM3 - MIGRATION REGULATIONS - SCHEDULES > PAM - Sch2 Visa 457 - Temporary Work (Skilled) - Nominations and visa applications > The UC-457 categories

    Sponsorship by a standard business sponsor

    …

    Requirements

    Primary applicants are required to demonstrate that they have the skills, qualifications and employment background that are relevant and necessary to perform the tasks of the nominated occupation.

    Assessment against the nominated occupation in ANZSCO

    For nominations made on or after 1 July 2010

    Under regulation 2.72(10)(e)(iv), the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified:

    ·for the occupation in the relevant ANZSCO code or

    ·if there is no ANZSCO code for the nominated occupation, the occupation in the legislative instrument for the purpose of regulation 2.72(10)(aa).

    Assessment

    ASCO/ANZSCO or the instrument should be referred to as the principal source of information on the normal tasks or duties and skill requirements for occupations in Australia. ASCO/ANZSCO skill level references represent the entry level skills required for a particular occupation.

    In all cases, case officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ASCO/ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation. However, when making their assessment case officers should be mindful that the qualifications and experience of the applicant must be relevant to the nominated occupation.

    If an applicant is unable to demonstrate skills and experience in a range of tasks, officers should consider whether or not the applicant is able to attribute 100% of their skills and experience to one of the sub-set of tasks prescribed. Although it is more favourable from an employer’s perspective, for an applicant to possess a range of skills and experience that covers the breadth of tasks prescribed under the nominated occupation, it should not provide grounds for refusal of the applicant’s application. For example, if an applicant were to nominate an occupation listed under a “not elsewhere classified"� heading, it would be unreasonable to consider that the applicant possesses skills and experience in every prescribed task. Officers should also consider that some applicants will be highly skilled yet specialised in a small range of tasks rather than the range of duties. As this program is designed to enable employers to meet skill shortages, this degree of specialisation is acceptable for applicants for the program.

    (Tribunal’s emphasis)

15. It is clear from the evidence of the applicant that he did not and does not undertake all the tasks listed in the ANZSCO description for Advertising and Marketing Professionals (Group 2251). In this context, the Tribunal notes that the ANZSCO list is inclusive and does not purport to be an exhaustive statement of the tasks that are undertaken in such roles. In addition, there is no legislative requirement that in order to be regarded as having the necessary background and skills a person is required to demonstrate that they have performed each and every aspect of the tasks set out in the relevant ANZSCO occupation. In an earlier version of s.457.223(4)(da), the Court in Joshi v MIMIA held the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[1] In reality, as recognised in the case law and the guidelines above, there may be instances where an applicant does not have experience in all the ANZSCO tasks but is highly skilled in a smaller range of tasks. Consequently, even acknowledging that the applicant’s background and experience in Italy was in a relatively small firm, and he was required to undertake a number of tasks in addition to marketing, the evidence of his current employer is that his skills are highly specialised and ideally suited to the marketing role required by his company.

    [1] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005).

16. As a result, and based on the evidence before it, the Tribunal accepts that the applicant has highly specialised skills which enable him to fulfil the unique marketing requirements of his employer/sponsor. By reference to the ANZSCO task list, the Tribunal accepts that the applicant has the necessary background and experience to perform the tasks of the nominated occupation which include updating social media and websites, proactively engaging architects and other professionals to make them aware of the company and its product and its quality, sending regular updates to them and existing clients as to recent stock additions, and devising marketing strategies, albeit yet be implemented. As confirmed by the evidence of his manager, the applicant is required to plan, develop and organise strategies or campaigns and to create customer awareness. The Tribunal also accepts the evidence that he capably supports the sales objectives of this company by researching trends and recommending products, as well as collecting customer data and analysing it to identify and predict consumer trends and preferences in order to generate potential demand.

17. The issue before the Tribunal is whether, at the time of decision, the applicant has the skills, qualifications and employment background that are relevant and necessary to perform the tasks of the nominated occupation. On the basis of his written references, notwithstanding the confusion around his job title, the Tribunal is satisfied that, for at least 5 years before coming to Australia, the applicant worked in Italy in a business that specialised in custom made stone products and during that time he performed some of the tasks listed in the ANZSCO description. Since arriving in Australia, on the basis of the credible oral evidence at hearing, the Tribunal is also satisfied that he has built on that experience and been actively involved in successfully marketing his sponsoring employer’s business. On that basis the Tribunal is satisfied that the applicant has at least 5 years of relevant experience in the role, thereby meeting the ANZSCO indicative skill level for the role. 

18. For all the above reasons, the Tribunal is therefore satisfied at the time of decision that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

19. It follows that the applicant satisfies the requirements of cl.457.223(4)(da).

    CONCLUSION

20. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

21. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(da) of Schedule 2 to the Regulations.

    Mary-Ann Cooper
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

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

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (ea)if:

    (i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

    (ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant; and

    (iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.