1511449 (Migration)

[2016] AATA 3722

1511449 (Migration) [2016] AATA 3722 (12 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  K & S STOJANOVSKI

CASE NUMBER:  1511449

DIBP REFERENCE(S):  BCC2015/824500

MEMBER:Marten Kennedy

DATE:12 April 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 12 April 2016 at 12:23pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 August 2015 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant (a partnership) applied for approval on 13 March 2015. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.  The applicant operates a cleaning business, trading as K and S Cleaning Services.  The nomination relates to the position of ‘Personal Assistant’ ANZSCO 521111.  This occupation is a skill level 3 occupation according to the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

4. Regulation 5.19(4)(h) contains a number of alternative requirements. Relevantly, I must be satisfied, among other things, that where the position and nominator’s business is located in regional Australia, the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3.

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii), and therefore did not satisfy r.5.19(4). The delegate was concerned that the majority of the tasks performed in the position were not those of a Personal Assistant and therefore not the tasks of a skill level 1, 2 or 3 occupation. The delegate observed that the tasks of the occupation were found in skill level 5 occupations such as clerical and office support occupations.

   CONSIDERATION

6. It is convenient to set out the indicative tasks of the ANZSCO in respect of ‘Personal Assistant’.

7. As an overview, ANZSCO provides that Personal Assistants ‘perform liaison, coordination and organisational tasks in support of Managers and Professionals’.

8. In Australia, the qualification and experience generally requires to perform the occupation is an AQF Certificate III including at least two years of on-the-job training, or an AQF Certificate IV.

9. The example tasks are

   ·liaising with other staff on matters relating to the organisation's operations

   ·researching and preparing reports, briefing notes, memoranda, correspondence and other routine documents

   ·maintaining confidential files and documents

   ·attending meetings and acting as secretary as required

   ·maintaining appointment diaries and making travel arrangements

   ·processing incoming and outgoing mail, filing correspondence and maintaining records

   ·screening telephone calls and answering inquiries

   ·taking and transcribing dictation of letters and other documents

   ·may supervise other secretarial and clerical staff

10. As observed by the delegate, not all clerical or administrative occupations are ANZSCO skill level 3.  ANZSCO identifies Accounting Clerks and General Clerks as ANZSCO Skill level 4.  By way of example, a General Clerk is said to ‘perform a range of clerical and administrative tasks’.  Specific tasks are identified as

    ·recording, preparing, sorting, classifying and filing information

    ·sorting, opening and sending mail

    ·photocopying and faxing documents

    ·preparing reports of a routine nature

    ·recording issue of equipment to staff

    ·receiving letters and telephone messages

    ·transcribing information onto computers, and proofreading and correcting copy

    ·may provide customers with information about services

    ·may perform receptionist duties

11. At folio 61 of the Departmental file is a ‘Position Description’.  It refers to supporting managers and undertaking clerical and administrative duties, answering and screening phone calls, booking appointments, filing, processing correspondence, organising functions.

12. An organisational chart (folio 60) shows that the business has an operation manager and site supervisor.  A customer Service manager position is to be ‘extinguished’.  The Personal Assistant position reports to the Manager and Operations manager.  The business employs casual cleaners and contracts cleaners and carpet cleaners.

13. I have had regard to the financial information provided about the business (folio 50).  I disregard the information as to projections but have taken into account the most recent financial reports relating to the financial year ending 30 June 2013.  This reveals the business to be profitable, but of a modest size.  I raised my perception in this regard with Ms Stojanovski.  She explained she wanted the business to grow, but did not disagree with my description of the modest size of the business,

14. I have taken into account written submissions provided in advance of the hearing.  It is submitted that the nominated position requires more than the tasks of a clerk, pointing to the screening of phone calls, and the need to support two management positions.  The salary offered is also referred to, with the submission that a clerk would not be paid the salary offered to the visa nominee.

15. The applicant appeared before the Tribunal, represented by Ms Stojanovski, on 16 March 2016 and again on 6 April 2016.  The first hearing was abandoned as it was apparent Ms Stojanovski required an interpreter.  This was arranged for the second hearing.

16. The Tribunal also received oral evidence from Ms Coleski.  Ms Coleski is Ms Stojanovski’s daughter and also works in a management role in the business.

17. At the hearing, I explained that I was concerned as to whether the position was properly described as a Personal Assistant in the ANZSCO sense, or more accurately described as a clerk in a lower skilled occupation.  I mentioned the modest nature, size and scope of the business, the structure of the workforce and the tasks referred to in the job description as a basis for my concerns.

18. Ms Stojanovski wished to emphasize her reliance on the person who holds the position, describing her as an excellent worker and trusted employee.  Ms Coleski also told me that the person currently occupying the position is an excellent employee and trusted, and pointed to her Diploma level qualifications in business management.  I emphasised to Ms Stojanovski that my focus was on the position in the business, rather than the attributes of the person currently working in the position.

19. I asked for more information about the business.  Ms Stojanovski told me it was a cleaning business, with clients such as doctors’ rooms, offices and display homes.  The business has a mix of employees and contracted cleaners.

20. In relation to the position, Ms Stojanovski told me that she needs someone who is familiar with all the issues in the business and can attend to written correspondence and telephone enquiries.  She explained she needed someone to attend to personal matters and she sometimes requires a substitute if she cannot attend meetings due to medical problems.

21. I asked Ms Stojanovski to set out any specific tasks in the position that might distinguish it from the tasks of a general clerk.  Ms Stojanovski responded to my question in this regard by again emphasising the attributes and trustworthy nature of the person currently holding the position.  Ms Stojanovski also raised her reliance on that person to assist with language difficulties.

22. I suggested one of the tasks set out in ANZSCO for a Personal Assistant was researching and preparing reports and asked if this task was undertaken in the position.  Ms Stojanovski described the person holding the position sending out contracts for clients and properly organising such matters.

23. Ms Coleski told me that she was a site supervisor for the business with responsibility to liaise with building managers and supervise performance of staff and contractors.   She said that the position would be required to prepare reports and research about proposed contracts, citing examples about different needs for pathology laboratories etc.  She said the position doesn’t just open mail, or answer calls and offer a call-back,  but is required to deal with enquiries from clients.  Ms Coleski also emphasised the benefit of the position in assisting her mother with language difficulties.

24. The applicant’s registered migration agent made submissions to the effect that the duties of the position accorded with the higher skilled duties set out in ANZSCO for a Personal Assistant, focussing on management of confidential files, and screening and dealing with calls.

    Consideration

25. In Nguyen and Vu Publishers Pty Ltd v Minister for Immigration and Anor[1] the Court considered the context of a different visa class requiring the Tribunal is to determine whether the nominated occupation ‘corresponds’ to an occupation in the applicable instrument (referring to ANZSCO).  The Court found that such a judgment must inevitably compare the real duties of the nominated position with that of a specified occupation.  I consider that I am to undertake a similar task in this matter.  I am mindful that the focus of the Regulation in the present instance is on ‘the tasks of a skill level 1, 2 or 3 occupation’ rather than any specific occupation.  Naturally, focus on the nominated occupation of Personal Assistant is the most logical way to approach the matter.

    [1] [2013] FCCA 1697

26. I have had regard to the ANZSCO classification for the nominated occupation.  The ANZSCO classification provides that this occupation is skill level 3.  It follows that if I am satisfied that the tasks of the position with the applicant are properly described as a Personal Assistant, in the ANZSCO sense, then that particular requirement will be met.  I am to approach the task of assessing the nominated position in a practical and realistic way – and not interpret the ANZSCO as a strict legislative code.

27. There is no clear bright line or basis upon which to distinguish between the skill level 3 occupation of ‘Personal Assistant’ and the lesser skilled but allied occupations such as ‘general clerk’.  Many of the examples offered by ANZSCO for tasks undertaken in the occupation are replicated in each.

28. The opening remarks of ANZSCO in relation to Personal Assistants focuses on ‘coordination and organisational tasks in support of Managers and Professionals.  In my assessment, and as raised at the hearing, this provides an indication that the size and nature of the business will inform on whether a clerical-type position can be understood to be Skill level 3 or a lower skilled position.

29. I would not describe the position as a position supporting ‘Professionals’ in the sense I interpret that word as used in the ANZSCO.  By this I mean that the nature of the business is a cleaning business, and not a medical practice, law firm or accountancy firm (for example).  I consider this informs on the complexity of the administrative tasks in the business and demands on the position.  Likewise, the business is not of a size as to require the coordination and organisation support for managers.

30. Taking into account the other tasks listed in ANZSCO for ‘Personal Assistant’ and comparing them with the tasks (by way of example) for a ‘General Clerk’ (Skill Level 4), I am not persuaded that the evidence before me points to sufficient aspects of the role that distinguish it from that of a General Clerk.  For example, when I raised this question with Ms Stojanovski and Ms Coleski, my attention was drawn to organising client contracts and providing answers to customer enquiries (as opposed to merely arranging call-backs).  These features do not distinguish the role from a General Clerk in my assessment.  A General Clerk will (for example, and according to ANZSCO), prepare reports of a routine nature, and provide customers with information about services.

31. On balance, and with regret having heard Ms Stojanovski explain the level of trust she places in the person who currently holds the position, I have concluded that the tasks of the position do not correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3. I  consider the tasks to be performed in the position correspond to the occupation ‘General Clerk’ and allied occupations at ANZSCO Skill level 4.

32. It follows that I have concluded that the requirements of r.5.19(4)(h)(ii) are not satisfied.

33. The application for approval of the position has been prepared to address the requirements under the Regional Sponsored Migration Scheme for a subclass 187 visa. The alternative way of satisfying r.5.19(4)(h) is therefore not applicable. Similarly, the applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3).

34. I find the application for approval of the position does not satisfy the requirements of the Regulations.  Therefore the nomination but be refused.

    DECISION

    The Tribunal affirms the decision under review to refuse the nomination.

    Marten Kennedy
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    …

    (h)either:

    (i)       

    …

    or

    (ii)      all of the following apply:

    …

    (D)the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;

    …