1515958 (Migration)

[2016] AATA 4413

1515958 (Migration) [2016] AATA 4413 (15 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Elion Myftari

CASE NUMBER:  1515958

DIBP REFERENCE(S):  BCC2015/1367769

MEMBER:Kate Millar

DATE:15 September 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 15 September 2016 at 2:51pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant Mr Myftari a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Myftari applied to the Department of Immigration for the visa on 12 May 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Supply and Distribution Manager. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations because the delegate was not satisfied that Mr Myftari did not have the qualifications listed in the Australiana and New Zealand Standard Classification of Occupations (ANZSCO) as being necessary to perform the tasks of the occupation.

6. Mr Myftari appeared before the Tribunal on 1 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr John Mazzocato, the Director of his employer Skye Cellars.[1]   Mr Myftari was represented in relation to the review by his registered migration agent.

   [1] Mr Myftari’s employer is the trustees of the Ficcadenti Skye trust, trustees for the McHugh trust and trustees for the John Mazzocato Family Trust and Amoroso Investment Trust and trustees for the Dino Mazzocato Trust.  These entities trade as Skye Cellars, and it has been referred to as Skye Cellars in this decision. 

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether Mr Myftari had the qualifications listed in ANZSCO for a Supply and Distribution Manager as being necessary to perform the position at the time he applied for the visa.

9. Mr Mazzocato gave evidence about the nature of the business.  Skye Cellars supplies and exports wine.  It has export, wholesale, retail and on-line components of the business.  It has seven employees, and of these Mr Myftari is the logistics manager.  They have positions in administration, wholesale sales and a position to do the necessary paperwork for exports.  Mr Mazzocato is the chief executive officer and he and his son Lucas do a bit of all of the tasks.  There is a retail front of house staff member who also assists in the warehouse.  They have casual staff for weekend retails trade and delivery drivers. 

10. Mr Mazzocato said Mr Myftari’s position is of particular importance as a significant component of the business is delivery. 

    Skills and qualifications

11. For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:

    ·     the applicant is in a specified class of persons (exempt persons), or

    ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

    ·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

12. It is correctly conceded that Mr Myftari is not in a specified class of persons or that the occupation is specified by the Minister, and it follows that he must have had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation at the time of his visa application on 12 May 2015. 

13. It was submitted by his representative that ANZSCO is indicative only and is not binding on me, however while that may have been the case in the past, as shown by case references provided, the legislation has since been amended and as it applies at the time of Mr Myftari’s visa application clearly states the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation are required.

14. ANZSCO states that:

    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 in addition to the formal qualification.

15. The tasks of a supply and distribution manager listed in ANZSCO are to plan, organise, direct, control and co-ordinate the supply, storage and distribution of goods produced by organisations. 

16. Mr Myftari provided a Diploma from Tirana University stating that in 2008 he was awarded the title of Teacher for High School in the course of English language.  He also provided a letter from the Ministry of Education and Sport that he worked as an English teacher four months as a casual part time teacher and then thirteen months as a contract teacher.  While I accept that the diploma is equivalent to an Australian bachelor degree, I do not consider this qualification is in the field of supply and logistics.  Clause 187.234 states that the qualifications must be necessary to perform the tasks of the occupation, and this requires that the qualification is relevant to the tasks of the occupation.  Mr Myftari argues that his studies in Albania result in him having a better understanding of contracts, however I do not consider that having the language required for the position results in him having the qualifications for the position.  I am also not satisfied that a bachelor degree in an unrelated field results in Mr Myftari having the qualifications listed in ANZSCO as being necessary to perform the tasks of the position.   

17. I accept that relevant experience may substitute for the formal qualification, and it is then necessary to consider whether Mr Myftari has at least five years of relevant experience.  In examining what of Mr Myftari’s experience is relevant, it is helpful to look at the tasks of the position as set out in ANZSCO.  These are:

    ·determining, implementing and monitoring purchasing, storage and distribution strategies, policies and plans

    ·preparing and implementing plans to maintain required stock levels at minimum cost

    ·negotiating contracts with suppliers to meet quality, cost and delivery requirements

    ·monitoring and reviewing storage and inventory systems to meet supply requirements and control stock levels

    ·operating recording systems to track all movements of supplies and finished goods, and ensuring re-ordering and re-stocking at optimal times

    ·liaising with other departments and customers concerning requirements for outward goods and associated forwarding transportation

    ·overseeing the recording of purchase, storage and distribution transactions

    ·directing staff activities and monitoring their performance.

18. Up to the date of his visa application on 12 May 2015, his work as a logistics manager provides approximately seventeen and a half months of experience to the date of the application.  I accept this is relevant experience.  Prior to being employed as the logistics manager, Mr Myftari was employed as a labeller and then as a delivery driver. 

19. Both Mr Myftari and Mr Mazzocato gave evidence on how his experience in working as a labeller and as a delivery driver for Skye Cellars gave him experience that he draws on in his role as Logistics Manager.  While I was initially sceptical about how this would provide experience as a Logistics Manager, I accept that a proportion of his time in these roles provides him experience as a Logistics Manager.  Mr Myftari worked for one year and four months part time (15 – 20 hours per week) as a labeller and for one year full time as a delivery driver. 

20. Of his part time work as a labeller, Mr Myftari said he spent 60% of his time on the labelling machine, 30% of the time moving stock, and 10% of the time getting information about stock to prepare for labelling.  I accept approximately 10% of his time in this position is relevant experience, as I am not satisfied that working on the labelling machine or moving stock relates to the tasks of the position as provide in ANZSCO.  This equates to approximately one month of relevant experience over his half time position for sixteen months.

21. He said that when he was working as a delivery driver 70 – 80% of his time was spent driving and the remainder of his time was spent assisting the logistics manager.  I accept part of this experience relates to the tasks of the position, but I am not satisfied any more than 40% of his time provided relevant experience.  This gives him approximately four to five months of relevant experience. 

22. Mr Myftari has a Certificate III in Hospitality, a Certificate IV in Hospitality and a Diploma of Hospitality from the Adelaide Hospitality and Tourism School.  These qualifications were all awarded on 12 July 2012.  He has completed a responsible service of alcohol course at the same institution and shown by a certificate issued 8 April 2011. 

23. I have carefully considered whether any of this study can constitute relevant experience that may substitute for a formal qualification, particularly as some of the subjects shown on his academic record could relate to the tasks of a logistics manager as set out in ANZSCO.

24. However, I am not persuaded that study is relevant experience.

25. “Experience” is defined in the Macquarie Dictionary as:

    1.  a particular instance of personally encountering or undergoing something: a strange experience.

    2.  the process or fact of personally observing, encountering, or undergoing something: business experience.

    3.  the observing, encountering, or undergoing of things generally as they occur in the course of time: to learn from experience; the range of human experience.

    4.  knowledge or practical wisdom gained from what one has observed, encountered, or undergone: men of experience.

26. As a result, and in the context the experience is a substitution for the formal qualification, I consider that to have experience, a person must observe or encounter or undergo the tasks of the position.  Study in a Certificate III and IV in Hospitality and in the Diploma in Hospitality does not provide that experience.   

27. As a result, I am not satisfied that Mr Myftari had more than two and a half years of relevant experience at the time of the visa application.  It follows he does not have five years of relevant experience that can substitute for formal qualification, and did not have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation at the time of his visa application.

28. Accordingly he does not meet cl.187.234 of Schedule 2 of the Regulations. I do not reach this conclusion lightly as I am fully aware that Mr Mazzocato values Mr Myftari as an employee.

29. Mr Myftari’s representative referred to a number of decisions of the Migration Review Tribunal.  While not binding on me, I have considered these cases. Several of the cases cited occurred before the Regulations were amended to require the qualifications listed in ANZSCO.  Of the remaining cases, one considered whether relevant experience may substitute for the qualification.  I have accepted this is so, however find that Mr Myftari does not have the required relevant experience.  The second of these cases concerned whether a higher qualification than that listed in ANZSCO could substitute for the qualification listed in ANZSCO.  This does not apply in this case. 

30. Mr Myftari provided references from suppliers and a freight company who provides services to Skye Cellars.  Where these relate to a time after the application, they are not relevant to this decision as the relevant time is the time of the visa application.  Where they address periods before the application, I have accepted that his role of Logistics Manger is relevant experience.  The references provided only refer to the time in which suppliers have dealt with Mr Myftari in this role. 

31. Mr Myftari has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Kate Millar
    Member