1508257 (Migration)

1508257 (Migration) [2016] AATA 4589 (2 November 2016)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Miss Saengdao Jaiongard
CASE NUMBER:  1508257
DIBP REFERENCE(S):  BCC2015/746373
MEMBER:Karen Synon
DATE:2 November 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 02 November 2016 at 3:39pm

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 8 March 2015.
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 visa on 16 June 2015 on the basis that cl.457.223(4)(da) was not met because the applicant did not provide “independently verifiable evidence to sufficiently demonstrate that [she] had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, at the level described in ANZSCO”.
The applicant applied for review of the primary decision on 18 June 2015 and provided a copy of the department’s decision to the Tribunal.
The applicant appeared before the Tribunal on 2 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from her employers, Ms Andu Khanijdu and Mr McPherson.
The applicant was represented in relation to the review by her registered migration agent who was present throughout the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in the present case are whether the primary visa applicant meets the requirements of cl.457.223(4)(da).
Firstly, the Tribunal notes that cl.457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
A previous nomination in respect of the applicant expired by operation of law on 15 June 2016. This was for the nominated occupation of ‘Supply and Distribution Manager’. A new nomination was lodged on 31 October 2016 for the occupation of ‘Retail Buyer’. In support of this the Tribunal has received evidence in the form of the department’s ‘acknowledgment of nomination application received’ letter confirming that a new nomination in respect of the applicant has been lodged. As this is still pending with the department the Tribunal makes no finding in relation to cl.457.223(4)(a).
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 she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation considered by the delegate was that of Supply and Distribution Manger however on review the applicant gave evidence that she was not aware that she needed to have a bachelor’s degree and conceded that she did not meet the requirements of cl.457.223(4)(da) for the occupation of Supply and Distribution Manager. Her employers have evidence that following rapid growth of the business it was necessary to restructure various roles and the applicant was now performing the role of ‘Retail Buyer’ and that consequently a new nomination had been lodged for this occupation.
The Tribunal has therefore proceeded to consider if the applicant has the skills, qualifications and employment background necessary to perform the tasks of the newly nominated occupation of ‘Retail Buyer’.
In making her decision the delegate noted the occupation’s indicative qualifications and tasks set out in The Australian and New Zealand Standard Classification of Occupations (ANZSCO). ANZSCO is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Retail Buyer’. However the Tribunal has referred to ANZSCO to inform its consideration of whether the applicant has the skills necessary to perform the nominated occupation.
In considering the ANZSCO definition and tasks for the occupation of ‘Retail Buyer’ (Code 639211), which is part of the Unit Group 6392 ‘Retail and Wool Buyers’; it records the indicative skill level in Australia as:
·AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3).
The specific occupation of ‘Retail Buyer’ is described as “buys and sells goods for resale in a retail establishment”.
The tasks of the occupations within this Unit Group are listed in ANZSCO as including:
In reaching a level of satisfaction as to the applicant’s relevant qualifications and experience the Tribunal accepts that the determination of each application requires more than a narrow matching process between the applicant's tasks and the ANZSCO occupational definition. In an earlier version of this clause, 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]
[1] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005).
On her visa application form the applicant details her employment history as:
· Anouconcepts – Designer of School Uniforms 1 April 2011 to 5 January 2014
· Anouconcepts – Supply and Distribution Manager - Thailand – 5 January 2015 to 4 March 2015
Relevantly the applicant gave oral evidence that she has successfully completed a Certificate IV in Business and a Diploma of Applied Fashion Design. She commenced working with her current sponsor in April 2011 and worked 20 hours a week in the position of Designer until December 2014. In this role she was also responsible for: processing all orders from Australian clients which she sent to Thailand; monitoring production in Thailand; meeting with clients and negotiating prices; and organising samples from the factory in Thailand for Australian clients. She took on the role of merchandising, looking after accounts and supply and distribution from January 2015 and this year has been working as a retail buyer which involves buying clothes and promotional merchandise (such as pens, bags etc) from Thailand.
She gained the position through her cousin’s referral who, at the time, was the company’s accountant. She has no familial relationship with the company owners.
Mr Greg McPherson and Ms Anau Khanijou, who are partners in the sponsoring business, gave evidence that the applicant has been employed as a Retail Buyer since January/February 2016 following a company restructure which redefined a number of staff positions. This restructure was required due to the business gowning in size and the necessity for dedicated professionals in various roles. It was contended that while the applicant previously undertook design, supply and production tasks because the company has grown so much one person could no longer do all these tasks. The supply and distribution role have been assigned to another person that does not require Thai language skills. The business, Anou Pty Ltd, is now the largest supplier of sports clothing to schools in Australia and contracts to Hanes Brand Inc, a US based company. Hanes Brand requires its factories to meet international compliance standards with certification and its previous factories in China could not meet its certification standards. Because Anou’s factory in Thailand meets all international standards and it is a reliable supplier who meets deadlines they now fulfil Hanes Brand Australian orders. This has resulted in rapid growth with the company’s annual turnover now AUD $5 million. It has 13 staff in Australia. The company has also expanded into some 300 promotional products such as umbrellas, bags, pens etc. The company also does event management and, for example, in currently running the K-Mart Wishing Tree appeal. Both Mr McPherson and Ms Khanijou emphasised the “extremely valuable” role the applicant has in the business. They explained that school uniform requirements are very strict and finite and that the communication of special requirements is very difficult for a person who does not speak Thai and may result in errors which would be unacceptable to the schools. The ability of the applicant to speak fluent Thai and English and to be able to travel frequently to Thailand is therefore essential. She is also an excellent designer and works closely with clients in developing ideas and suggesting suitable fabrics and techniques.
Based on the evidence before it the Tribunal is satisfied that the applicant has the skills, qualifications and employment background that it considers necessary to perform the tasks of a ‘Retail Buyer’. She is the holder of a Certificate IV in Business and a Diploma of Applied Fashion Design and Technology which more than satisfies the indicative skill level 3 nominated in ANZSCO. Further, she has been employed by her sponsor for over 5 years and is experienced in a range of positions across the organisation including, over the past 10 months, as a Retail Buyer. She is a highly valued employee in a successful and growing Australian business and the Tribunal places considerable weight on the support of her employer and the fact that both owners attended the hearing to give evidence in her support.
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).
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
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.
Karen Synon
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
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)     subclause (6) does not apply to the applicant;
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.

[2016] AATA 4589

2 November 2016

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