1510012 (Migration)

[2016] AATA 4837

1510012 (Migration) [2016] AATA 4837 (22 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jose Isaac Nava Serrano
Ms Silvia Sarai Castillo Garcia

CASE NUMBER:  1510012

DIBP REFERENCE(S):  BCC2015/644313

MEMBER:Mary-Ann Cooper

DATE:22 December 2016

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 22 December 2016 at 12:54pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Skills, qualifications and employment background – Production Manager (Manufacturing)  –  No degree qualifications – Production manager experience in family business – Product development, quality control and staff training duties

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 457.223(4)(da)

CASES

Joshi v MIMIA [2005] FMCA 1116

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 27 February 2015.

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 visas on 6 July 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied the first named applicant (the applicant) had the skills, qualifications and employment background necessary to perform the nominated occupation.

5. The applicants appeared before the Tribunal on 15 November 2016 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent who did not attend 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 Production Manager (Manufacturing).

10. There is no threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, although in determining this question, the tribunal may be guided by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for occupations nominated on or after 1 July 2010.

11. The tribunal notes, however, that the determination of each application requires more than a narrow matching process between an applicant's tasks and 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).

12. According to ANZSCO a Production Manager comes within Unit group 1335 “Production Managers”. In Australia most occupations in this unit group have a level of skill commensurate with the following qualifications:

    PRODUCTION MANAGERS plan, organise, direct, control and coordinate the production activities of forestry, manufacturing and mining organisations including physical and human resources.

    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:

    ·determining, implementing and monitoring production strategies, policies and plans

    ·planning details of production activities in terms of output quality and quantity, cost, time available and labour requirements

    ·controlling the operation of production plant and quality procedures through planning of maintenance, designation of operating hours and supply of parts and tools

    ·monitoring production output and costs, and adjusting processes and resources to minimise costs

    ·informing other Managers about production matters

    ·overseeing the acquisition and installation of new plant and equipment

    ·directing research into production methods, and recommending and implementing initiatives

    ·controlling the preparation of production records and reports

    ·coordinating the implementation of occupational health and safety requirements

    ·directing staff activities and monitoring their performance

    133512 PRODUCTION MANAGER (MANUFACTURING)

    Plans, organises, directs, controls and coordinates the manufacturing activities of an organisation including physical and human resources.

    Skill Level: 1

    Specialisations:

    Operations Manager (Production)

    
    

    Plant Manager (Manufacturing) (Aus)

    
    

    Works Manager (Manufacturing) (Aus)

13. As recorded in the delegate’s decision, a copy of which was provided with the review application, and as noted above, ANZSCO indicates that the role of Production Manager requires a Bachelor degree or higher qualification or at least 5 years relevant experience. The delegate noted that the applicant had no qualifications commensurate with a degree. In considering his employment history, she noted that the applicant claimed he had worked from 2004 to 2012 as a production manager in his family business in Mexico and observed that his mother had written his reference. In that context, the delegate considered that the impartiality of the reference was questionable, noting that if he commenced work at that stage he would only have been 17 years of age. The delegate also noted that the job of Production Manager was highly skilled and usually undertaken in large scale operations. Not having anything before her about the size or scale of the business, the delegate was not satisfied that the applicant had worked as a Production Manager with the business as claimed. The delegate also considered the applicant’s claimed employment as a Production Manager for 18 months with another company in Mexico as well his employment with his current nominator but noted that these positions did not collectively amount to at least 5 years’ experience. Consequently the delegate was not satisfied that the applicant had demonstrated he had the necessary skills, qualifications and background experience to perform the tasks of the nominated position. The delegate refused the visa applications on the basis that the applicant did not meet cl.457.223(4)(da).

14. Prior to the hearing the applicant provided a large number of documents to the tribunal. As well as his CV, references from the workplace and several documents demonstrating the popularity of his product, he supplied bank records, tax records and social security records over the period he had claimed to be working in Mexico. As the tribunal observed at the hearing, these documents demonstrated that he was working as a producer of tortillas they did not establish that he was working as Production Manager during the relevant periods. At the hearing the applicant explained the documents and the tribunal accepts that he has been engaged in tortilla production for several years and was to a large extent responsible for the direction, organisation and control of the business. The tribunal allowed him some further time to organise for the business accountant to provide additional information confirming his engagement at the business and his role in it.

15. The applicant explained at the hearing that his family had been engaged in tortilla production for several decades but his father had died when he was 14 years of age and he had been required to stop studying and help his mother with the business. He claimed that he ran a small factory with 3 or 4 employees. He claimed he was responsible for all the production and quality control. He said his uncle had originally taken control but he had learned from him and had taken over the business when he was 17 years of age.  When asked about his other employment in Mexico as a Production manager, he acknowledged that this was at his uncle’s business. He said 6 to 8 people had reported to him and his duties included training them, ensuring the product quality and dealing with clients/customers and complaints.

16. When asked how he had come to travel to Australia, he responded that one of his cousins is an engineer and had been selling equipment to Australia. He said the client to whom he sold the production (tortilla-making) equipment (the applicant’s nominating employer) was looking for someone with the skills to help install the plant and train its employees in how to use it and produce the tortillas. The applicant said he initially came on a student visa to learn English but also to “have a look” and see if he wanted to do the job. He said the equipment arrived in Australia in June/July 2014 and his cousin had come to Australia to assist in the set-up.

17. He said he completed the English language training and then enrolled in a Frontline Management Diploma while assisting the setup of the business. It was during this time that he had suffered a significant workplace injury involving his hand and he had been unable to complete the course. He said that Workcover had covered his surgery and (continued to pay) his medical bills.  His injury was apparent to the tribunal.

18. The applicant claimed he is now responsible for all production in separate premises and has 7 employees in the packing area and 3 employees, supervised by him, in production of the tortillas. He said he had been required to train all the employees because there was no trade training available for this work in Australia. In addition he claimed that his recipes are family recipes that they have held close for several years. He gave a detailed explanation of the variety of equipment and other plant utilised in the production of the tortillas and his preventative and other maintenance programs. In addition he gave a detailed account of his work, from constant daily product quality control to staff rostering, monitoring and performance management. He also outlined the record keeping requirements of the position including stock control and production planning. While he acknowledged that the General Manager is across the whole business, which includes a restaurant, he maintained that he is responsible for the product, employee matters at the factory and dealing with clients who purchase their tortillas directly from the factory. That is, other Mexican and related restaurants which purchase his product. He provided a credible account of product improvements he had made and research he had undertaken to cater to customer demands and special requests of these other businesses in relation to the product. He was also able to give a thorough account of OHS procedures and requirements at the workplace. The tribunal is satisfied that the applicant’s consistent responses were reflective of the ANZSCO indicative tasks for the position of Production Manager.

19. The tribunal allowed the applicant some further time to supply a letter from the family business in Mexico confirming his role with the business. He later provided a letter from his former accountant confirming that he was a production manager in the family business over the period 2004 to 2014.

20. There is no dispute that the applicant does not possess a bachelor degree or equivalent. In this context the tribunal has considered his relevant experience in assessing whether he meets cl.457.223(4)(da).

21. On the basis of the documentary and oral evidence, the tribunal does accept that he has several years’ experience in his occupation and brings a great deal of skill and knowledge to it. The tribunal further accepts the convincing evidence that his role in his current employment from March 2014 to date (20 months) is commensurate with that of a Production manager as listed in ANZSCO. This view is reinforced by the media articles provided which praise the quality of the product, both from professionals and the general client base. In relation to whether his overseas experience was commensurate with that of the level of Production Manager, on the basis of the several documents provided which demonstrate his role in the financial aspects of the business, in combination with the letter from the business accountant, the tribunal is satisfied that for at least 4 years of that period from February 2004, he performed work commensurate with that of a Production Manager.

22. It follows that the tribunal is satisfied that the applicant has demonstrated that, although he does not hold directly relevant formal qualifications in this area, he has developed skills and knowledge to the same level through his substantial relevant work experience of at least 5 years.

23. The tribunal is therefore satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Production Manager.

24. For these reasons the requirements of cl.457.223(4)(da) are met.

    CONCLUSION

25. 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.

    Secondary applicant

26. The delegate also refused a visa to the secondary applicant, the wife of the visa applicant and who is included in his application. The delegate refused the visa because it followed that the refusal of the primary applicant’s visa meant that the secondary applicant did not meet the secondary criteria.  As the Tribunal is remitting the application it is appropriate for the delegate to consider these secondary criteria on remittal.

    DECISION

27. 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.

    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

    (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.