Ali (Migration)

[2020] AATA 3324

Ali (Migration) [2020] AATA 3324 (10 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mazhar Ali
Mrs Maheen Mazhar
Ms Abeeha Mazhar
Master Muhammad Aayan Mazhar

CASE NUMBER:  1803978

HOME AFFAIRS REFERENCE(S):          BCC2017/1946883

MEMBER:Stavros Georgiadis

DATE:10 August 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 10 August 2020 at 11:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – qualifications and work experience necessary to perform tasks of occupation – ANZSCO specifies bachelor degree or five years’ relevant experience – applicant’s highest qualification an advanced diploma –dates worked part-time and full-time, positions worked in and tasks performed – experience at lower levels than nominated position – credibility – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), s 187.234(c)

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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 June 2017. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) sets out that he is seeking the visa in the Direct Entry stream, to work in the nominated position of Marketing Specialist (ANZSCO 225113).

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.234 of Schedule 2 to the Regulations as the delegate considered the applicant did not have the relevant qualifications or sufficient work experience listed in ANZSCO as being necessary to perform the tasks of a Skill level 1 occupation.

6. The applicant appeared before the Tribunal on 10 August 2020 to give evidence and present arguments.

7. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The main issue in the present case is whether the primary applicant satisfies the criteria in cl.187.234 for the grant of the Subclass 187 visas for all applicants.

    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. For visa applications made on or after 18 March 2018, applicants who are not exempt persons must also have been employed in the occupation for at least 3 years on a full time basis and at the level of skill required for the occupation.

13. For this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060 of the Register of Instruments: Business visas, and the occupations and relevant assessing authorities have been specified in IMMI12/096 of that Register of Instruments.  For the purpose of the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

14. The application for the Subclass 187 visas in this case is a joint application with the primary applicant’s spouse and two children, lodged on 1 June 2017 under the Direct Entry stream.  The criteria set out in cl.187.234 must be satisfied by the primary applicant at the time of application. 

15. For the grant of the visa, the applicant must satisfy one of the three alternatives (a to c) set out in cl.187.234 of Schedule 2 of the Regulations which provides as follows:

    cl.187.234

    At the time of application:

    (a) the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or

    (b) all of the following requirements were met:

    (i) the applicant’s occupation is specified by the Minister in an instrument in writing for this subparagraph;
    (ii) the applicant did not obtain the necessary qualification in Australia;
    (iii) the applicant’s skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation;
    (iv) the assessment was not for a Subclass 485 (Temporary Graduate) visa;
    (v) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment - the period had not ended;
    (vi) if subparagraph (v) did not apply - not more than 3 years had passed since the date of the assessment; or

    (c) if neither paragraph (a) nor (b) applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

16. The legislative instrument refers to the following classes of persons as exempt from skill requirement for the purposes of 187.234(a) of the Regulations:

    Class 1 - Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Tax Office’s top individual income tax rate.

17. At the hearing, the applicant said he has been remunerated approximately $65,000 for the 2020 financial year for his work as a Marketing and Promotion Consultant with his current employer, 99 Couriers Pty Ltd in Sydney.  PAYG Payment Summaries have been provided to the Tribunal that are broadly consistent with this level of recent earnings.  The lodged application sets out a position of Sales and Marketing Manager (ANZSCO 131112) noting the applicant’s submission that he seeks to be assessed for the role as Marketing Specialist (ANZSCO 225113) with the company trading as Home Building Outlet Pty Ltd.  His annual salary is proposed as $62,400.  The Tribunal accepts that the level of remuneration for the nominated position is less than the current Australian Tax Office top individual income tax rate which is significantly higher.

18. Accordingly, the applicant is not exempt from the skills requirement as a person under Class 1, as the applicant’s level of remuneration is lower than the Australian Tax Office top individual income tax rate.

    Class 2 - Persons who hold a Subclass 444 – Special Category visa; or Subclass 461 – New Zealand Citizen Family Relationship (Temporary) visa, and who have been working in their nominated occupation for their nominating employer for at least two years (excluding any periods of unpaid leave) in the previous three years, immediately before applying for their Subclass 187 – Regional Sponsored Migration Scheme visa.

19. The applicant told the Tribunal that he held a student visa in the past and a Subclass 457 visa granted on 9 June 2013 for work as a Customer Services Manager.  He responded, when asked that he has not held any Subclass 444 or 461 visa. The Tribunal finds that the applicant is not a person under Class 2 above as he does not hold a Subclass 444 or 461 visa.

20. Accordingly, the applicant does not meet cl.187.234(a).

21. At the hearing the applicant confirmed that the position for which he seeks the Subclass 187 visa relates to the specialist marketing role. The Tribunal accepts from the application documents lodged that the application for the Regional Employer Nomination (Class RN) visa is for appointment to the role of an ANZSCO Skill Level 1 position (discussed further below).

22. The nominated occupation is not an occupation specified by the Minister in the instrument IMMI12/096 of the Register of Instruments in respect of cl.187.234(b). Therefore, cl.187.234(b) does not apply.

23. The Tribunal finds that at the time of application, the applicant was neither a person in a class of persons specified by the Minister in a legislative instrument for paragraph 187.234(a), nor was his occupation specified by the Minister in a legislative instrument for subparagraph 187.234(b)(i). As neither paragraph subclauses 187.234(a) nor (b) apply, the applicant must establish that he has qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation, or relevant experience in the alternative that may substitute for the formal qualification. 

24. The ANZSCO database states that most occupations in this unit group have a level of skill commensurate with an Australian Qualifications Framework (AQF) bachelor’s 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 - Skill Level 1.

25. The applicant’s evidence is that he holds an Advanced Diploma in Management and Communications which was conferred in Australia in 2017.  He told the Tribunal that this was as a result of recognition of prior learning (RPL) of a Diploma in Business Administration he completed in Australia in 2012. The applicant responded, when asked, that he has no other formal qualifications. The Tribunal accepts the applicant’s oral evidence in this regard and finds that he does not hold an Australian Qualifications Framework (AQF) bachelor’s degree or higher qualification.

26. Accordingly, the applicant’s qualifications relied upon do not satisfy the requirements of cl.187.234(c) at time of application as being necessary to perform the tasks of the occupation.  The applicant must therefore, demonstrate that he has at least five years of relevant experience to substitute for the formal qualifications listed in ANZSCO - Skill level 1.

27. The applicant made written submissions regarding the issue of relevant experience to substitute for the formal qualification consistent with his oral evidence - that he has undertaken 5 years and 2 months of relevant experience in aggregate.  The submissions of 29 July 2020 set out as follows:

    … “It is submitted that Nomination was approved as Marketing Specialist ANZSCO: 225113 on 09 Aug 2017 – Refer Enclosure A

    The Visa Subclass 187 (Direct Entry) was refused on 08 Feb 2018 as not meeting Schedule 2 Clause 186.234 (c) – that highlights “that at the time of application the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation – that was at least 5 years of relevant experience may substitute the formal qualifications” – Refer Australian Bureau of Statistics ANZSCO for Unit Group 2251 (225113 Marketing Specialist) – Refer Enclosure B.

    Delegate’s assessed as “Sales and Marketing Manager” instead of “Marketing Specialist”

    It is submitted that the Nomination was approved as Marketing Specialist and the delegate has over looked the Occupation approved for the Nomination and considered Sales and Marketing Manager, which was changed in the Nomination - an error made by delegate.

    Work Experience at the time of Visa Application

    The Visa Subclass 187 was lodged on 01 Jun 2017 – Refer Enclosure C.

    It is submitted that at the time of Application the Work Experience Letter was not submitted. The Resume of Jun 2017 that was not updated to match the Work.

    Experience was submitted. The delegate has taken the decision for the duration of Work Experience based on the Resume – Refer Enclosure D.

    The Work Experience Letter of Kitchen Food Company Pty Ltd and Event Group Australia Pty Ltd dated 31 May 2017 is submitted for consideration – Refer Enclosure E.

    The Period of Work Experience at the lodgement of Visa Application

    The Visa Application was lodged on 01 Jun 2017 – Refer Enclosure C

    Thus the Work Experience (total 5 Years and 2 Months) of the Applicant before 01 Jun 2017 is worked out as follows:

    • Customer Service Manager (Main tasks performed as Marketing Specialist as assigned by employer, kindly see the attached experience letter at Enclosure D) on Student Visa – From 15 Feb 2011 to 10 Jun 2013 this works out to be 2 years and 4 months part time that is equal to 01 year and 2 months full time.

    • Customer Service Manager (Main tasks performed as Marketing Specialist as assigned by employer, kindly see the attached experience letter at Enclosure D) on Visa Subclass 457 – From 11 Jun 2013 to 01 Jun 2017 this works to be 4 years full time.

    The Payment Summaries are also enclosed as evidence of working – Refer Enclosure F.

    The Pay slips for the duration employment are at - Refer Enclosure G.

    Thus total Work Experience at the time of lodging Visa Application was 5 years 2 months.

    Related Work Experience

    It is further submitted that Mr. Mazhar ALI was employed full time with FORTE IMPEX as Senior Executive Marketing and Sales in Karachi, Pakistan from Jul 2007 till 30 Apr 2010 – Refer Enclosure H

    Currently he is employed with 99 COURIERS PTY LTD as Marketing and Promotion Consultant in Liverpool, Sydney from Jul 2019 to date – Refer Enclosure J.

    Thus Mr. Mazhar ALI has sufficient work experience to work as a Marketing Specialist.

    Conclusion

    With above in view it is submitted that the Applicant meets the requirement of Schedule 2 Clause 186.234 (c). …”

28. At the hearing, the applicant confirmed that he has been working full time with his current employer, 99 Couriers Pty Ltd, as Marketing and Promotion Consultant since July 2019.  The Tribunal accepts that this would be relevant work to either the role of Marketing Specialist or Sales and Marketing Manager but this experience post-dates the time of application which was made on 1 June 2017 and therefore, cannot be counted to satisfy the requirements at time of application.

29. The Tribunal has had regard to the work experience relied upon by the applicant to satisfy the requirement in cl.187.234(c).  The applicant lists two specific periods set out in the submissions to make up the 5 years and 2 months of relevant work:

    • Customer Service Manager with Kitchen Land Co Pty Ltd from 15 Feb 2011 to 10 Jun 2013 (part time); and

    • Customer Service Manager on a Subclass 457 visa from 11 Jun 2013 to 1 Jun 2017 (4 years full time.)

30. In respect of the first period, the Tribunal notes the applicant’s evidence that he was restricted to working part time of less than 20 hours per week as he was on a student visa at that time - equating to 1 year and 2 months of equivalent full time work. The second period is said to cover 4 years. The applicant submits that the main tasks performed were those of a Marketing Specialist ‘as assigned by employer’. The Tribunal has had regard to the duties described by the applicant at the hearing and also the reference letter from the employer dated 31 May 2917 and accepts that there is some degree of overlap of duties to the applicant’s employed title of Customer Service Manager that pertain to marketing or sales functions. However, the Tribunal notes a number of factors that weigh against this work being considered relevant work for the purposes of cl.187.234(c) discussed below.

31. Firstly, the applicant described to the Tribunal his daily tasks in that role which involved checking customer satisfaction, liaising with clients to handle complaints, and dealing with orders, sales and logistics to ensure orders would be fulfilled on time. He described overseeing a small team of two people which is not consistent with the nature of ‘organising, directing, controlling and coordinating the sales and marketing activities’ of an organisation with a more substantial team. Further, the applicant explained that prior to commencing employment with Kitchen Food Co Pty Ltd, his employer already had engaged a Key Account Manager who had responsibility for pricing, promotions and strategies for key clients in the organisation that covered three branch locations in Brisbane, Melbourne and Sydney. 

32. The Tribunal reflected to the applicant that the Key Account Manager position appeared more involved in the marketing and sales roles compared to his role which appeared more customer service focussed.  He reiterated that there was a degree of overlap due to the recognition of his skills by his employer. In response to the question of how long the Key Account Manager role remained in place, the applicant’s oral evidence was inconsistent at the hearing as it varied between the Key Account Manager leaving before the applicant commenced in February 2011 on the one hand, to leaving in July 2012 on the other, being some 18 months after the applicant started with Kitchen Food Co Pty Ltd. The Tribunal observed to the applicant that this inconsistency did not reflect well on his credibility as a witness of truth.  He responded that these events took place quite some time ago. When asked at the hearing why the Key Account Manager role was discontinued in mid-2012, the applicant responded: “we had enough new customers.” This suggests to the Tribunal that there was, at least from July 2012, no further particular need for marketing activity to develop more clients in the business. The Tribunal considers that marketing to new clients is a central task for the nominated role but one that was apparently not required beyond July 2012 in the organisation at which the applicant was seeking to gain relevant experience.

33. In respect of the applicant’s credibility, the Tribunal notes the applicant had submitted that he was working as a Marketing Specialist at Home Builders Outlet Pty Ltd trading as Home Builder’s Outlet located in the ACT from 9 January 2017 to 8 May 2017. He submitted: ‘the employer is impressed with my capabilities and performance as a sales and Marketing Manager and has sponsored me for Regional Sponsored Migration Scheme visa for Permanent Residency.’  However, when further queried about this at the hearing, the applicant clarified that he was living in Sydney at that time and working full-time in other work in Sydney but had attended Home Builders Outlet Pty Ltd only on a “visiting basis” on some weekends.  When questioned further, the applicant admitted that he was never actually employer by Home Builders Outlet Pty Ltd.  The Tribunal therefore, does not count any period of this ‘work’ as experience relevant for the purposes of cl.187.234(c).

1. The Tribunal has considered the work reference letter from Event Group Australian Pty Ltd trading as Kitchen Food Company.  This sets out that the applicant is employed by the company in the role of Customer Service Manager. The reference letter refers to duties as listed in ANZSCO for Customer Services Manager but also lists some other tasks.  Although the additional tasks have a marketing and sales focus ‘as assigned by employer’, in light of the applicant’s oral evidence discussed above of no need for new customers from July 2012, the Tribunal does not accept that the additional tasks listed justify the role being treated as relevant experience for the nominated marketing role rather than that of Customer Services Manager.

2. The Tribunal also notes the applicant’s oral evidence of the level of remuneration of $54,000 to $55,000 per year for the position with Event Group Australian Pty Ltd trading as Kitchen Food Company, which is considerably less that the nominated position at $62,400 per year.  The Tribunal considers this is indicative of the additional or higher level of responsibilities that the marketing position would require over and above that of Customer Service Manager which, in the Tribunal’s view, the applicant was undertaking at the material time.

3. The Tribunal notes the applicant’s other stated work experience undertaken many years earlier, including in Pakistan from 2007 at a time when the applicant, on his oral evidence, did not have any qualifications in management, communications or business administration.  These qualifications were not attained until later up to 2017.  Because of this and also the aforementioned concerns over the applicant’s credibility, the Tribunal does not accept that it should count work experience as a Senior Executive, Marketing and Sales in Karachi, Pakistan from Jul 2007 till 30 Apr 2010. Notably, this period on its own still equates to less than the 5 year threshold required.

4. The nominated role is a Skill Level 1 occupation. This is the highest skill level in ANZSCO and any relevant work experience is to substitute for AQF bachelor’s degree or higher level formal qualifications.  This is a high bar. The Tribunal is not satisfied that the applicant has demonstrated the stated relevant work experience of 5 years and 2 months submitted or the requisite minimum period of 5 years.

5. The Tribunal has had the benefit of considering the further material provided in relation to tasks undertaken in the applicant’s past employment. From the available evidence before it discussed, the Tribunal is not satisfied that the applicant had at least five years of relevant experience to substitute for formal qualifications at AQF bachelor or higher level necessary to perform the tasks of the nominated occupation at the time of lodging the application for the visa.  Accordingly, the applicant does not meet cl.187.234(c).

6. The applicant 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.

7. As the primary applicant is unable to meet cl.187.234 for the Subclass 187 visa, the secondary applicants, as claimed members of the same family unit in a joint application, are unable to meet criteria in cl.187.311(a) for the visas.

   DECISION

8. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

   Stavros Georgiadis

   
   

   Member