1413772 (Migration)

1413772 (Migration) [2015] AATA 3625 (11 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr James Henry Poynter
Ms Lucy Jane Ball
CASE NUMBER:  1413772
DIBP REFERENCE(S):  BCC2014/1349134
MEMBER:Don Lucas
DATE:11 November 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 11 November 2015 at 4:33pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 visa applicants applied for the visa on 31 May 2014.
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.
The delegate refused to grant the visas on 4 September 2014 on the basis that cl.457.223(4)(da) was not met because the first named visa applicant (the visa applicant) had not demonstrated that he had the necessary skills, qualifications and employment background necessary to perform the nominated occupation of Sales and Marketing Manager.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
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 Sales and Marketing Manager, ANZSCO[1] 131112. The indicative skill level and tasks and duties as listed in ANZSCO are set out as an attachment to this decision. Relevantly, ANZSCO specifies the Indicative Skill Level in Australia for the occupation of Sales and Marketing Manager as follows:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
[1] The Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary
In extensive submissions provided to the Tribunal, the applicant’s representative stated in reation to cl.457.223(4)(da) that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Sales & Marketing Manager and that there is no need for the Minister to require the applicant to demonstrate that he has the skills that are necessary to perform the occupation.
As relevant, the submission stated:
Assessment against Clause 457.223(4) (da) the applicant has the skills, qualifications and employment background considered necessary to perform the tasks of the nominated occupation
For the occupation of Sales & Marketing Manager (ANZSCO Code 131112) the Indicative Skill Level specified by ANZSCO is a bachelor degree of higher. At least five years of relevant experience may substitute for the formal qualification.
The qualifications and employment background are consistent with the level of skill specified in the ANZSCO as that required to perform the tasks of the nominated occupation of Sales & Marketing Manager (131112) as Mr Poynter has over 5 years of relevant work experience along with holding a formal qualification higher than a degree.
Education Qualification
Mr Poynter holds a Graduate Certificate in Management. This qualification is relevant to the
nominated occupation. This qualification is awarded under the Australian Qualification Framework (AQF) and is a qualification higher than a degree.
Documents provided:
Qualification Certificate
Qualification Transcript
Australian Institute of Business brochure setting out entry requirements (page 22)
Employment Experience
ANZSCO states that for the occupation of Sales & Marketing Manager “at least five years of relevant experience may substitute for the formal qualification”. However, we submit that Mr Poynter has over five years of experience in addition to his formal qualification. Mr Poynter has 61 months of relevant experience (5 years and one month).
The relevant periods of employment are considered below:
Period One: October 2009 to December 2010 – Fitness First – Sales Manager
15 months of relevant experience
Accepted as relevant at the primary decision
Documents provided: Employment reference letter and Position Description dated 17 December 2013.
Period Two: August 2011 to January 2012 – The Training Room – Team Leader
5 months of relevant experience
Documents provided:
Employment reference letter dated 16 December 2013
Employment reference letter dated 23 October 2015 providing further details on the role
Organisation Chart
Period Three: January 2012 to July 2012 – The Training Room – Team Leader Fitness First Academy
6 months of relevant experience
Accepted as relevant at the primary decision
Documents provided:
Employment reference letter dated 16 December 2013
Employment reference letter dated 23 October 2015 providing further details on the role
Organisation Chart
Period Four: July 2012 to March 2013 – The Training Room – Sales Manager
8 months of relevant experience
Accepted as relevant at the primary decision
Documents provided:
Employment reference letter and Position Description dated 16 December 2013
Employment reference letter dated 23 October 2015 providing further details on the role
Organisation Chart
Period Five: August 2013 – present – Australian Fitness Academy – Business Development and Sales
Manager
27 months of relevant experience
Accepted as relevant at the primary decision
Documents provided:
Letter of Offer of Employment dated 31 July 2013
Position Description dated 12 December 2013
Letter confirming permanent appointment dated 25 February 2014
Employment Reference Letter dated 26 October 2015
PAYG Summary for 30 June 2014
PAYG Summary for 30 June 2015
Payslip for July 2015, August 2015, September 2015 and October 2015
Mr Poynter meets the Indicative Skill Level for the nominated occupation of Sales & Marketing Manager and so we submit that he has demonstrated that he has the skills, qualifications and employment background that is necessary to perform the tasks of the nominated occupation of Sales & Marketing Manager.
We submit that paragraph 457.223(4)(da) has been met.
In addition to the submission (marked as annexure 1), the representative also submitted the following additional documents in support:
2.Graduate Certificate in Management Certificate
3.Graduate Certificate in Management Transcript
4.Australian Institute of Business brochure setting out entry requirements to the course (page 22)
5.The Training Room employment reference letter dated 23 October 2015 providing further details on the Team Leader and Sales Manager roles
6.The Training Room Organisation Chart as at August 2011
7.The Training Room Organisation Chart as at July 2012
8.Australian Fitness Academy letter confirming permanent appointment dated 25 February 2014
9.Australian Fitness Academy employment reference letter dated 26 October 2015
10.Australian Fitness Academy PAYG Summary 30 June 2014
11.Australian Fitness Academy PAYG Summary 30 June 2015
12.Australian Fitness Academy Payslip for July 2015
13.Australian Fitness Academy Payslip for August 2015
14.Australian Fitness Academy Payslip for September 2015
15.Australian Fitness Academy Payslip for October 2015
16.Statutory Declaration by James Poynter
17.CV (updated) of James Poynter
18.Nomination of Position approval letter dated 25 August 2015
In a statutory declaration dated 29 October 2015, the applicant stated:
1.I am a Sales and Marketing Manager with over 5 years of relevant work experience and a qualification higher than a degree in Management.
2.Five years of relevant work experience
3.My first position in a sales and marketing management role was in October 2009 when I was the Sales Manager at Fitness First in the UK. I managed the sales department of membership consultants, setting sales targets and strategies for the team. The role also included 'promoting an organisation's goods and services to as many people as possible' through monthly outreach programs to local schools, businesses and organisations with corporate memberships. Marketing strategies were also
implemented in the local area to generate increased memberships. I was in this role until December 2010 giving me 15 month's relevant experience.
4.I joined the Training Room Personal Training Academy in the UK in January 2011 in the position of Academy Assessor (sales consultant). In this role I sold personal
training courses to potential students. This role is not related to sales and marketing management, but was within a rapidly expanding training organisation, with opportunities to progress quickly.
5.The next position in a sales and marketing management role was in August 2011 when I was promoted from Academy Assessor to the position of team leader at the Training Room Personal Training Academy. This position involved managing 10 academy assessors (sales consultants), selling personal training courses. I was the most senior manager in charge of setting sales targets and strategies for my team. As shown in the organisation chart provided, the team leader role was of senior management level, equal to the other team leader, operations manager, finance manager, and education team leader positions, all reporting to the managing director.
6.As well as managing sales activities, at this period in the business there was no marketing team, so this responsibility fell to the team leader and managing director roles. In particular I spent time increasing brand awareness through digital marketing strategies, promoting our courses online, which led to increased enquiries into our courses, and increased enrolments in essence, 'promoting an organisation's goods to as many people as possible' as well as being a 'strategy to build and maintain an organisations image'.
7.In January 2012, still in the same role as team leader, I set up a new brand called 'Fitness First Academy'. In this strategy I set up a partnership with Fitness First (my previous employer), where students were guaranteed positions as a personal trainer on completion of the Training Room's personal training course. My team became a new department selling this brand, which was very popular with students. Although a slightly different product, the role and duties were exactly the same as the previous team leader position, implementing sales and marketing strategies. The team leader, and team leader (Fitness First Academy) experience gives me 11 month's relevant sales and marketing manager experience.
8.Throughout 2012 the Training Room sales team continued to grow, and in July 2012 I was appointed to a newly created position, titled sales manager. As shown in the July 2012 organisation chart, this role was created to be above team leaders, effectively reducing their responsibilities to managing a team of 10 academy assessors only. A marketing manager was also appointed to help assist with marketing activities under my supervision. I directed all sales and marketing strategies across the business. The sales manager role gives me 8 month's relevant sales and marketing manager experience.
9.After leaving the UK I was appointed the position of Business Development and Sales Manager at the Australian Fitness Academy in Melbourne in August 2013. Managing both the sales and marketing departments. I currently direct all sales and marketing strategies across the business. Since my appointment in August 2013, I currently have 27 month's relevant sales and marketing manager experience.
10.Combining my Fitness First Sales Manager, Training Room Team Leader, Training Room Sales Manager, and Australian Fitness Academy Business Development and Sales Manager roles gives me 61 months of relevant experience, which is just over five years.
11.Qualification higher than a degree in management
12.I hold a Graduate Certificate^. in Management from the Australian Institute of business that was awarded in September 2015. The qualification is relevant to the role of sales and marketing manager at the subject studies are directly relevant to my role -strategic management, marketing management, leadership and strategic human resource management.
13.The four subjects studied form 4 of the 12 subjects of the MBA (Master of business administration).
14.The entry requirements I met for this course were: to hold a qualification deemed equivalent to an Australian bachelors degree, preferably with some professional practice.
15.The evidence I provided to an role in the course was my UK Bachelors Degree (Hons) as well is some evidence of management experience through job references, and the current CV.
16.Given that I had to hold a degree to enter the course, this qualification should be determined to be qualification higher than a degree.
The Tribunal has firstly considered the applicant’s skills by reference to his formal qualifications. The Tribunal gives weight to the applicant’s very recent attainment of the Graduate Certificate in Management from the Australian Institute of business on 4 September 2015, and accepts that this is a Level 8 qualification under the Australian Qualifications Framework Qualification, listed together with a bachelor Honours degree and graduate diploma. It is a higher level qualification than a bachelor degree listed as AQF Level 7.
ANZSCO lists the minimum skill entry level for the occupation of sales and marketing manager as being a bachelor degree or higher qualification. As the applicant has now obtained a higher level qualification in a bachelor degree in a field which is directly relevant to the nominated occupation of Sales and Marketing Manager, the Tribunal considers that the applicant now meets the skill requirement in cl.457.223(4)(da) on the basis of his formal qualification alone.
In this regard, the Tribunal agrees with the delegate that the applicant’s bachelor degree in the unrelated field of Science – Geography is not a qualification relevant to the occupation nominated in this matter.
Although not necessary to find specifically, the Tribunal further gives weight to the applicant’s relevant employment experience. ANZSCO indicates that five years (60 months) of relevant experience may substitute for any formal qualification. At the time of the delegate’s decision in July 2014, on the basis of the evidence accepted by the delegate the applicant had amassed some 40 months of relevant experience. In view of the evidence provided concerning the applicant’s ongoing employment in the nominated occupation by his standard business sponsor, to date and based upon material considered and accepted by the delegate and also accepted by the Tribunal, the applicant has now amassed some 53 months of relevant experience.
The Tribunal acknowledges that the classifications contained within ANZSCO are intended merely as a guide, and that it would be improper to apply ANZSCO classification codes strictly. It is important to note that ANZSCO itself does not purport to definitively or prescriptively lay out the expectations for qualifications and experience that would qualify a professional, to perform any nominated role at the appropriate level of skills and ability. Ultimately, the Tribunal must consider the specific occupation which is in fact been nominated by the standard business sponsor. In this process, it would be erroneous to elevate ANZSCO to the level of a regulatory criterion, and the Tribunal approaches its task by treating ANZSCO as an indicative guide, albeit a consideration very relevant to its determination concerning the applicant’s skills to perform the occupation of Sales and Marketing Manager.
The Tribunal is satisfied that the nominated occupation is commensurate with that of a Sales and Marketing Manager as described in ANZSCO. Taking the indications contained within ANZSCO into careful consideration, and assessing the applicant’s background cumulatively by reference to relevant experience currently of at least 53 months on the basis of the evidence accepted by the delegate (and some 62 months on the basis of other employment experience the delegate had not accepted was at the required skill level), taken together with the specific needs of the standard business sponsor concerning the nominated position of Sales and Marketing Manager, the Tribunal would be minded to conclude that the applicant has demonstrated that he has the necessary skills by reference to his relevant employment experience alone, and certainly has demonstrated it on a cumulative basis in combination with the formal relevant qualification.
The Tribunal therefore finds that the applicant the necessary skills, qualifications and employment background necessary to perform the tasks required to be performed as a Sales and Marketing Manager in the nominated position. This finding is based upon an assessment of the applicant’s formal qualification, a Graduate Certificate in a relevant field taken individually, and is also separately based upon the applicant’s relevant employment experience taken individually. Further or in the alterative, the finding is based upon a cumulative assessment of the applicant’s combination of relevant formal qualification and relevant employment experience.
The Tribunal accordingly concludes that the applicant meets the requirements of cl.457.223(4)(da).
For the reasons above, the Tribunal has not found it necessary to request that the applicant demonstrate that he has the requisite skills in accordance with cl.457.223(4)(e), as the Tribunal has concluded that the applicant has already so demonstrated the required skills to perform the occupation of Sales and Marketing Manger..
CONCLUSIONS
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining primary criteria for a Subclass 457 visa to be met by the first named applicant and relevant secondary criteria to be met by the second named applicant.
DECISION

The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.
Don Lucas
Member

ATTACHMENT 1 - 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.
ATTACHMENT 2 - ANZSCO UNIT GROUP 1311 ADVERTISING AND SALES MANAGERS

ADVERTISING AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
oformulating and implementing policies and plans for advertising, public relations, sales and marketing in consultation with other Managers
odirecting the development of initiatives for new products, marketing and advertising campaigns
oorganising and controlling sales activities by setting product mix, geographical sales areas and customer service standards
odirecting merchandising methods and distribution policy by coordinating the work of salespersons, and organising agents and distributors
odirecting sales methods and arrangements by setting prices and credit arrangements

Occupations:
131111 Advertising and Public Relations Manager
131112 Sales and Marketing Manager

131111 ADVERTISING AND PUBLIC RELATIONS MANAGER

Plans, organises, directs, controls and coordinates the advertising and public relations activities within an organisation.
Skill Level: 1
Specialisations:
Community Relations Manager
Corporate Relations Manager
Public Affairs Manager
Relationship Manager

131112 SALES AND MARKETING MANAGER

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.
ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.
Skill Level: 1
Specialisations:             Business Development Manager
Market Research Manager

[2015] AATA 3625

11 November 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction