1416869 (Migration)

[2016] AATA 3479

1416869 (Migration) [2016] AATA 3479 (15 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Edward Philip Bacon

CASE NUMBER:  1416869

DIBP REFERENCE(S):  bcc2014/1675763

MEMBER:Adrian Ho

DATE:15 March 2016

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 15 March 2016 at 4:03pm

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 8 July 2014.

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 23 September 2014 on the basis that cl.457.223(4)(da) was not met.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills, qualification and employment background of the applicant

6. 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.

7. The delegate was not satisfied the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Sales Representative (Industrial Products) (ANZSCO 225411).

8. The ANZSCO entry for the occupation is an appropriate starting point:

   UNIT GROUP 2254 TECHNICAL SALES REPRESENTATIVES

   
   TECHNICAL SALES REPRESENTATIVES represent companies in selling a range of industrial, medical and pharmaceutical goods and services to industrial, business, professional and other establishments.

   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:

   ocompiling lists of prospective client businesses using directories and other sources

   oacquiring and updating knowledge of employers' and competitors' goods and services, and market conditions

   ovisiting regular and prospective client businesses to establish and act on selling opportunities

   oassessing customers' needs and recommending and explaining goods and services to them

   omonitoring customers' changing needs and competitor activity, and reporting these developments to sales management

   oquoting and negotiating prices and credit terms, and completing contracts and recording orders

   oarranging delivery of goods, installation of equipment and the provision of services

   oreporting to sales management on sales made and the marketability of goods and services

   ofollowing up with clients to ensure satisfaction with goods and services purchased, and resolving any problems arising

   opreparing sales reports and maintaining and submitting records of business expenses incurred

   
   Occupations:

   225411 Sales Representative (Industrial Products) 
   225412 Sales Representative (Medical and Pharmaceutical Products) 
   225499 Technical Sales Representatives nec

   
   225411 SALES REPRESENTATIVE (INDUSTRIAL PRODUCTS)

   
   Represents companies in selling a range of specialised chemicals, machines, manufacturing materials and other industrial supplies.

   Skill Level: 1

   
   225412 SALES REPRESENTATIVE (MEDICAL AND PHARMACEUTICAL PRODUCTS)

   
   Represents companies in selling medical, dental and veterinary equipment and supplies, and pharmaceutical products.

   Skill Level: 1
   Specialisation:

   Medical Representative

   
   225499 TECHNICAL SALES REPRESENTATIVES NEC

   
   This occupation group covers Technical Sales Representatives not elsewhere classified.

   Skill Level: 1
   Occupations in this group include:

   Sales Representative (Educational Products and Services)

9. As suggested by its title, the sales occupations in this ANZSCO group are technical in nature.  All sales representatives must have a knowledge of the product or service they are selling. However, for these technical sales roles, it will often be the case that the technical aspects of products and services will be of high interest to customers in making a buying decision.

10. The sponsoring business produces and sells plastic and other package products and solutions to organisations and businesses. 

11. The visa applicant, from the UK, missed a Department deadline to provide additional information.  However, even on the information he had provided to the Department it is clear he has decades of experience as a packaging designer, product development manager, and consultant, all in the packaging field (DIBP f.23).

12. Most recently he has worked for the sponsoring business since 2010 as technical sales manager.  The tribunal is satisfied he has intimate knowledge of the technical aspects of packaging products and solutions, their development and their production.  He is well able to use this knowledge to compare the company’s offerings with those of the its competitors and to assess which products are technically superior, and to explain to customers the technical advantages of the company’s products, as well as help customers find bespoke packaging solutions where possible.  His knowledge of the product allows him to assess customers’ technical packaging needs and his involvement in sales as well as development gives him insight into the way customer needs are changing, and how the business might develop packaging solutions to meet those changing needs.  These are all ANZSCO-indicated tasks of the occupation.

13. The remaining of the ANZSCO-indicated tasks are more generic sales functions which based on his sales experience with the sponsor since 2010 the tribunal is satisfied he has the acumen to perform.

14. The applicant does not have the bachelor degree or higher level qualification indicated by ANZSCO.  The tribunal is however satisfied he has more than the 5 years of relevant experience that ANZSCO indicates may substitute for that qualification.

15. For these reasons, the tribunal is satisfied the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, and the applicant meets cl.457.223(4)(da).

16. 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

17. 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.

    Adrian Ho
    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.