1514365 (Migration)

[2016] AATA 3434

1514365 (Migration) [2016] AATA 3434 (4 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lin Zhang

CASE NUMBER:  1514365

DIBP REFERENCE(S):  BCC2015/2345193

MEMBER:Carolyn Wilson

DATE:4 March 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 04 March 2016 at 11:01am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 October 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant contravened a condition of her visa by not working in the occupation listed in her approved nomination. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 8 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the employer, Mr Joe Grilli. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 was attached to the applicant’s visa.

8. Condition 8107(3) requires the following:

   If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4):

   (a)      the holder:

   (i)      must work only in the occupation listed in the most recently approved nomination for the holder; and

   (ii)      unless the circumstances in subclause (3A) apply[1]

   (A)      must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or

   (B)      if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor’s approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor’s term of approval as a standard business sponsor — must work only in a position in the business of the sponsor or an associated entity of the sponsor…

   (b)      if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days

   [1] The Tribunal is satisfied on the evidence that 8107(3A) does not apply in this case.

9. The applicant was sponsored for her Subclass 457 visa by Joe Grilli Wines Pty Ltd ATF the Grilli Family Trust t/a Primo Estate Wines.  The nomination in respect of the applicant was approved on 21 June 2013 in the occupation Marketing Specialist (ANZSCO 141111). 

10. Compliance officers of the Department monitored the sponsor through site visits between 2013 and 2014.  As a result of evidence obtained during these visits, the Department barred the sponsor from sponsoring more people for Subclass 457 visas.  The sponsoring employer did not appeal the decision to bar them as a sponsor.

11. The Department’s monitoring of the employer led the delegate to conclude the applicant was undertaking the duties of a Bar Attendant, which were not consistent with the occupation Marketing Specialist.

12. The applicant concedes she spent time working at the cellar door.  However, she claims this is for training purposes so that she can be familiar both with the goods but also with how the wine is received and appreciated by customers.  She uses that feedback to increase cellar door sales through direct marketing.  She also uses it as an opportunity to engage with Chinese nationals visiting the cellar door and to identify their tastes.

13. The Tribunal is not convinced by this claim.  The Tribunal acknowledges the necessity for the applicant to familiarise herself with the product, but does not accept this would require regular weekly shifts on the cellar door for training or marketing purposes.  As for feedback on what the customers like, the Tribunal considers such information could be passed on to the marketing specialist by the staff working at the cellar door.  The Tribunal also considers that were it important for the applicant to pick up such information in order to undertake marketing duties, it would have made more sense for her to work onsite and be close to the cellar door.

14. The applicant also conceded a large part of her work at Primo Estate has been working from home translating marketing materials.  She claims such work is not that of a translator but is a marketing task.  In written submissions it was stated ‘when translating, editing and compiling the marketing material for the Chinese market she needs to transform and incorporate her own understanding and knowledge of the specific products and winery culture into the marketing documents’. 

15. The Tribunal is not persuaded the translation work can properly be regarded as a task appropriate to the occupation of Marketing Specialist.  The Tribunal acknowledges the translation of marketing materials is not done merely word for word, but that her knowledge of the product and the Chinese market would influence the presentation of the material.  However, there is no evidence that the applicant has developed marketing strategies or developed original marketing materials.  The Tribunal is not satisfied that translating existing marketing materials, even acknowledging the tweaks the applicant may make to the material, amounts to work that falls within the ANZSCO description for the occupation Marketing Specialist. That description is as follows:

    Marketing Specialist
    Identifies market opportunities and advises on the development, coordination and implementation of plans for the pricing and promotion of an organisation's products or services.
    
    Skill Level:
    The entry requirement for this occupation is a bachelor degree or higher qualification or at least 5 years relevant experience. In some instances relevant experience is required in addition to the formal qualification.
    
    Tasks Include:

    ·     supports business growth and development through the preparation and execution of marketing objectives, policies and programs

    ·     undertakes and commissions market research to identify market opportunities for new and existing products and services

    ·     evaluates the competitive environment and the positioning of existing products and services relative to their product life cycles

    ·     advises on all elements of the marketing mix including products and services, pricing, advertising and sales promotion, selling and distribution channels

    ·     prepares sales and marketing forecasts, assists executives in the preparation of divisional marketing plans, and coordinates marketing plans for overall business

    ·     coordinates and participates in product development and management, through initial product concept and testing to ongoing monitoring of market success

    ·     liaises with suppliers, customers and other agencies to ensure the organisation is well informed on changing market conditions and trends

    ·     may evaluate and promote export opportunities and monitor associated trading conditions

16. The Tribunal finds it significant that the applicant does not work in collaboration with the winery’s Marketing Specialist, but works in isolation.  The Tribunal also finds it significant that the applicant does not possess any qualifications or experience in Marketing. When this was put to the applicant she disagreed with the Tribunal’s assessment, and claimed to have run her own online business whilst studying in Australia, selling Australian health products and food. However, the Tribunal does not accept that experience in online retail amounts to experience in the occupation Marketing Specialist, an occupation for which there are specialist degrees. 

17. The Tribunal relies on the responses of the applicant’s co-workers when Compliance officers spoke to them.  The Marketing Specialist (who does work onsite, and not from home as the applicant did) said the applicant worked in sales and at the cellar door.   The assistant general manager said the applicant works in the tasting room, cellar door sales, in marketing services to the Chinese agency, and dealing with exports to China.  Both responses indicate the applicant is not engaged in the occupation Marketing Specialist, but in a mixture of cellar work, sales, and some ‘marketing’ to the business partner in China.

18. The Tribunal acknowledges the work done by the applicant in networking, making contacts in China, and in getting Primo Estate on selected websites in China.  The Tribunal accepts such work has been valuable to her employer in their plan to increase their market in China.   However, when taking into account her lack of qualifications and experience in Marketing, her main duties of translating and working at the cellar door or in sales, and the evidence

    obtained from co-workers by Compliance officers, the Tribunal finds the applicant was not working in the occupation Marketing Specialist.

19. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

20. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

21. The Departmental guidelines cover such matters as:

    ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

    ·the extent of compliance with visa conditions

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

    ·past and present conduct of the visa holder towards the department

    ·if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

    ·whether there would be consequential cancellations under s.140

    ·whether any international obligations would be breached as a result of the cancellation

    ·any other relevant matters.

22. The Tribunal gives weight to the delegate’s findings that the applicant and her employer were cooperative during the compliance checks.  On consideration of all the evidence before it, the Tribunal considers both the applicant and her employer are working from the (incorrect) assumption that undertaking duties that help to promote and sell the product is sufficient to amount to it being a position in the occupation Marketing Specialist.  For the reasons given above, the Tribunal does not accept this is the case.  However, the Tribunal does accept the employer values the applicant’s combination of language and people skills and her interest and knowledge of the wine industry, and has created a position for her in his efforts to increase wine sales to China. 

23. The Tribunal has considered whether the position was non-genuine, given the employer’s business partner in China is a company of which the applicant’s father is a director.  The Tribunal has not come to a conclusion as to whether the business partnership came first, and the sponsor was asked to employ the applicant, or whether the applicant was employed first and she introduced the sponsor to her father and his import company in China.  However, the Tribunal is satisfied that in any event the applicant was working for the sponsor, that her work has been of value to the sponsor’s business, and that the sponsor wishes to continue employing her.  For these reasons the Tribunal does not find the position was non-genuine.

24. The applicant’s visa was a temporary visa, which would have ceased in June 2017.  Were this a permanent visa the Tribunal would affirm the decision to cancel, as it doubts the breach will be rectified such that going forward the applicant will be fully employed in the occupation Marketing Specialist. 

25. The Tribunal gives weight to the purpose of the visa and the applicant’s stay in Australia, which is to work temporarily at Primo Estate with the aim of increasing the winery’s sales in China and Asia more broadly.  The Tribunal gives weight to the value the sponsor places on the applicant’s work to date and his wish to continue using her skills in his business for the term of his visa. 

26. For these reasons, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Carolyn Wilson
    Member