Ayora (Migration)

[2020] AATA 6075

Ayora (Migration) [2020] AATA 6075 (24 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Marta Vegas Ayora

CASE NUMBER:  1724233

HOME AFFAIRS REFERENCE(S):          BCC2016/2632196

MEMBER:Katie Malyon

DATE:24 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(a) of Schedule 2 to the Regulations

Statement made on 24 December 2020 at 3:09 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– nomination approved – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 457.223

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 and Border Protection to refuse to grant the applicant, Spanish national Ms Marta Vegas Ayora, a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).  Ms Vegas Ayora applied for the visa on 9 August 2016.  

2. At the time the visa application was lodged, Class UC contained Subclass 457. 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 2 alternative ‘streams’ for the visa. One stream is contained in cl.457.223(4) of Schedule 2o to the Regulations and is set out in the Attachment to this decision.  This applies to sponsorship for employment in an occupation by an approved standard business sponsor.

3. The delegate refused to grant the visa on 22 September 2017 on the basis that cl.457.223(4)(a) was not met because Ms Vegas Ayora was not the subject of an approved nomination by her prospective sponsor Go Study Australia Pty Ltd (the Company) due to the fact that, on 18 November 2018, the Department refused the third nomination application lodged by the Company for the position of Marketing Specialist ANZSCO 225113 in respect of nominee Ms Vegas Ayora.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations.

   Requirement for an approved nomination

6. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

7. On 24 December 2020, the Tribunal approved the nomination made by the Company in respect of nominee Marta Vegas Ayora for the nominated position of Marketing Specialist. The Company’s sponsorship if valid until 21 November 2021. Accordingly, the requirements of cl.457.223(4)(a) of the Regulations are met.

8. By way of summary and as set out in the Tribunal’s Request for information for Temporary Employer Nomination online form completed by the Company in response to the Tribunal’s s.359(2) letter, Ms Vegas Ayora’s duties as Spanish Marketing Specialist with the Company’s parent company RedHill Education Limited (RedHill) will require her to continue working with RedHill (as she has done for the past 5½ years) to:

   ·identify market opportunities for the Spanish speaking market of Go Study Australia

   ·develop and execute marketing policies and programs for the Spanish speaking market within Australia and abroad to create customer and brand awareness

   ·advise management on strategies to reach and retain the Spanish speaking market and increase awareness of course options and benefits offered by Go Study Australia including web and social content, email campaigns, digital, video and print content

   ·collect and analyse data on (the) Spanish speaking market such as demographics, needs and preferences and advise senior management on factors that will affect the service demand

   ·conduct market research to find new market opportunities such as changes in visa policy for the Spanish speaking market as well as to eliminate possible risks by realigning marketing policies and strategies in consultation with senior management

   ·monitor changes in Australian education and migration policies as well as college and university courses and tuition fees to assist in modifying marketing campaigns

   ·forecast and track marketing trends through marketing research and providing this information to management to assist the company (that is, RedHill) in determining its position in the industry

   ·support recruitment partners through coordinating content and collateral development to help them recruit Spanish speaking students for our partner colleges

   ·deliver campaigns within set budgets

   ·develop a content marketing strategy to drive new leads and optimise conversions

   ·direct and guide marketing staff to ensure efficient campaign creation and delivery

   ·carry out a range of marketing and sales functions to ensure growth of the business, particularly within the Spanish speaking market

   ·create reports and analysis of marketing opportunities to expand the Spanish speaking market

   ·provide reports and market analysis to allow Management to make key decisions regarding the Spanish speaking market and potential new products and services

   ·manage the production of visual content such as videos, photos and infographics to share the stories and drive new leads through Go Study’s design and content team

   ·direct offshore marketing staff in Spain to ensure all onshore marketing efforts are consistent and aligned with offshore marketing messaging

   ·design and launch a marketing and lead generation campaign for Go Study’s new office in Colombia

   ·work with partner colleges and their associated marketing staff to launch campaigns to the Spanish speaking market

   ·prepare reports on relevant marketing metrics and forecasts for campaigns

   ·ensure professionalism, excellent customer service in all activities

   ·prepare sales figures, reports and forecasts to determine effectiveness of campaigns

   ·participate in social events for Spanish speaking market and support team activities

   ·monitor the ESOS Act and Migration policy changes as well as education providers’ courses and tuition fee changes so as to quickly come up with suitable marketing campaigns

   ·develop relationships with key partners such as education providers and referring agents

   ·evaluate and assess customer and referring agent’s satisfaction through survey and customer testimonials to measure effectiveness of marketing campaigns.

9. Given the Tribunal’s finding that the requirements of cl.457.223(4)(a) of the Regulations are meet, the appropriate course is to remit Ms Vegas Ayora’s visa application to the Minister to consider remaining criteria for the visa.

   DECISION

10. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(a) of Schedule 2 to the Regulations

    Katie Malyon

    
    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.

    oOOo