D'Agostino (Migration)

[2018] AATA 3556

D'Agostino (Migration) [2018] AATA 3556 (15 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Marco D'Agostino
Ms Emanuela Villari

CASE NUMBER:  1614070

DIBP REFERENCE(S):  BCC2015/3005172

MEMBER:Denise Connolly

DATE:15 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2018 at 1:37pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Importer – Whether the applicant has the qualifications necessary to perform the tasks of the occupation – Whether the applicant’s bachelor degree is relevant to the duties of the occupation – Contents of degree not sufficiently related – Whether the applicant has the required work experience – Applcicant has less than 5 years relevant work experience – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 187.234(3)

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 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 14 October 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 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 first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Importer. 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 visas on the basis that the applicant did not meet cl.187.234 of Schedule 2 to the Regulations.

6. The applicants appeared before the Tribunal on 16 July 2018 to give evidence and present arguments.

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

8. There is a certificate on the Department’s file which purports to be a certificate under s.375A claiming that disclosure of certain folios on the file would be contrary to the public interest. The reasons given are that the folios ‘contain internal Departmental correspondence between officers and/or Departmental systems information for administrative purposes’. The Tribunal has considered the content of those folios. They refer to email correspondence between officers, and between officers and the applicant’s representative regarding the applicant’s request to include the second named applicant as a dependent (16 – 17, 24 – 28, 51 - 56), general advice about the process for sending documents to the AAT which is not relevant to any of the findings made in this decision (42 – 46), information about the applicant’s qualifications, employment and English language tests (57 – 69 and 86 – 88), provided by the applicant or his representative.  Having considered the content of those folios, which include information provided by the applicant or his representative, the Tribunal is not satisfied that, for the reasons given, or for any other reason, it would contrary to the public interest to disclose any or all of these folios. In regard to the reference to internal Departmental correspondence between officers, if the concern relates to the disclosure of the identity of the officers, those details could easily be redacted. Nor is the Tribunal satisfied the Department’s system information for administrative purposes is a valid reason to not disclose the information.  There is no specificity about why and which folios should not be disclosed for this reason. For these reasons the Tribunal finds the certificate is invalid.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills and qualifications

10. 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.

11. For this criterion, the relevant classes of exempt persons have been specified in IMMI 15/083, and the occupations and relevant assessing authorities have been specified in IMMI 12/096.

12. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was nominated by Vinlina Nominees Pty Ltd ATF the V. and L. N. Ciccarelli Family Trust (trading as Myaree Ceramics) under Regional Employer Nomination in the Direct Entry Stream, for the position of Importer, with an annual base salary of $57,200. Having regard to the requirements of cl.187.234 the delegate referred to the instrument IMMI 15/083 and noted that the class of person specified in the instrument for the purposes of cl.187.234(a) is a person who is earning the top ATO individual annual income (at least $180,001 per annum), or eligible an New Zealand citizen holding a Subclass 444 visa, or a New Zealand family member holding a Subclass 461 visa. The delegate noted the applicant was the holder of a Subclass 417 working holiday visa and was offered a base salary of $57,200. The delegate found therefore that he is not a person in the class specified by the Minister for cl.187.234(a).  The delegate also noted that the applicant was nominated in the occupation Importer which is not an occupation specified by the Minister in the legislative instrument for the purposes of cl.187.234(b).  The delegate found that as the applicant did not meet cl.187.234(a) or (b) he is required to hold qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation: cl.187.234(c).

13. The applicant provided evidence that he completed a bachelor degree from the University of Messina, Italy and documentation relating to the course. His qualification relates to Technologies of Education and Communication, with the main study in Communication. The information provided states that “graduates of this degree course must: possess the basic skills specific to the fields of communication and be able to work in various industries relative to culture (publishing, cinema, theatre, radio, television and the new media); possess the competencies in the new communications and information technologies and the ability to carry out communication in public relations activities in the public, private and cultural heritage sectors; understand the operational policies typical of communications and information in relation to changes in a variety of national and international sectors, also with reference to institutional context; possess the skills needed to work as a journalist and in newsrooms, with competence in the audiovisual area as well; the ability to speak and write into foreign languages (one of which an EU language), as well as having proficiency in Italian; possess the basic competencies needed to produce cultural texts (screenplays, short subjects, storyboards, video and audiovisual texts).

14. Further written submissions were made by the applicant’s representative as to why the applicant’s bachelor degree should be considered relevant for the purposes of cl.187.234(c). The Tribunal notes that the applicant has also completed a general English course and an IELTS preparation course.

15. The applicant has also provided evidence about his relevant work experience. The Tribunal has had regard to applicant’s resume provided in May 2016 in support of the visa application. It indicates that the applicant was employed with the nominator in the period June 2015 to the time the resume was provided, as a storeman. His duties as a storeman are recorded as follows:

    ·organise new stock

    ·categorise stock by brand and style

    ·serve customers

    ·prepare orders

    ·drive forklift

    ·deliver stock to customers and other warehouses.

16. The applicant’s resume provided in May 2016 also indicates that in the period October 2009 to October 2011 he had worked as a Junior Sales Manager and Account Assistant for Geom Felice D’Agostino.

17. The applicant subsequently provided a work reference from the nominator dated 2 June 2016 in which it is stated that the applicant has worked as an Importer/Exporter for the nominator since June 2015 and that he has undertaken the following tasks:

    ·planning and implementation of all import and export transportation strategies according to all supplier and customer demands and administer internal movement of all goods and ensure compliance with all government regulations.

    ·Partner with suppliers and inventory planners and ensure accurate movement of all international goods and ensure arrival of goods within required timeframes and obtain the best pricing for goods and freight rates at all times.

    ·Design, evaluate and renew all contracts as per requirement and monitor and prepare reports for all import activities and recommend changes if required.

    ·Assist to prepare all import quotes for customers and perform all shipment bookings with carriers.

    ·Perform research for various departments for all import and export laws and procedures and maintain knowledge on all tariffs and licenses and corroborate with finance team and maintain inventory of all products.

    ·Provide any insurance, if necessary on shipments and design and execute all corrective action plans for processes.

    ·Collaborate with team leader and perform audit on processes. Maintain expert knowledge on all custom regulations, suppliers product range and Myaree Ceramics market requirements.

18. The applicant subsequently provided an updated resume in which the details of the most recent employment had been amended for his employment at Myaree Ceramics, as including the following duties:

    ·develop and execute business plans that include marketing, pricing, management and procedural strategies

    ·promote company products through direct marketing with both local and international businesses

    ·identify products for business and manufacturers and negotiate terms and conditions of sale including price and quantity

    ·communicate extensively with international and local businesses and manufacturers in overseeing importation and exportation of stock

    ·accept, categorise and organise stock upon arrival

    ·prepare stock for exportation

    ·forklift driving

    ·deliver stock to customers and numerous warehouses.

19. The Tribunal notes that the main duties listed in respect of the employment history at Geom Felice D’Agostino for October 2009 to October 2011 have also been amended to include further duties such as:

    ·communicating extensively with international businesses and manufacturers to order stock for importation

    ·managed products during importation and exportation process

    ·accepted, confirmed and organised imported stock upon arrival’

    ·executed business performance activities including profit and loss reports, appointment of after-sales service procedures and appointing agents and distributors.

20. The applicant provided a statutory declaration dated 17 July 2016 in which he claimed that he worked at Geom Felice D’Agostino, his father’s business which was forced to close in October 2012. He is not in possession of any record or documentation to confirm the employment. His main duties consisted of visiting trade fairs to choose suitable products to sell through the business. He also claimed that import/export work in Italy is different but the skills learnt are relevant to the occupation. He confirmed that he does not have any documentation such as payslips, bank statements or tax returns or documentary evidence of his employment nor work references from the employer.

21. The applicant provided a Form 80 in May 2016 in which he described his occupation as importer and storeman.

22. The representative provided a written submission in which he submits the ANZSCO definition should not be used prescriptively and the Tribunal should consider the applicant’s bachelor degree to be relevant to an Australian bachelor degree. He submits therefore that the Tribunal should find that the applicant’s bachelor degree meets the requirement in ANZSCO that the applicant has a level of skill commensurate with a bachelor degree. He argues, in the alternative, that the applicant’s degree is relevant to the occupation because the skills developed in the degree, such as oral and written communication skills, are relevant to the tasks of an importer. He asserts that as the skills requirement is met by the applicant’s bachelor degree he does not need to meet the requirement to have 5 years’ relevant experience. The representative provided written material regarding the applicant’s qualifications, and a letter from the nominator dated 11 July 2018. The nominator described the business’ needs for the position and the applicant’s suitability for the role. He explained that the applicant starting working with the business ‘bottom up’, driving the forklift, preparing stock for export and delivering stock to customers.  As the business is small, the staff need to multi-task. He noted the Department approved the nomination. The applicant has been working in the business since July 2015, undertaking the duties of an importer/exporter. The applicant has undertaken a Certificate IV in International Trade in his own time to further his skills. He is currently working on a Live Chat project for the business. The owner attested to the applicant’s performance in the role.

23. The representative provided examples of the applicant’s email exchanges with customers, payroll information, documents relating to the applicant’s involvement in the family business in Italy and the Live Chat project, invoice samples and evidence of the applicant’s Certificate IV in International Trade achieved in August 2017.

24. At the hearing the Tribunal discussed with the applicant the requirements of cl.187.234. It gave the applicant an opportunity to address the concerns raised by in the delegate’s decision record and his evidence. The following is a summary of his oral evidence.

25. The applicant confirmed he is earning $57,200 in accordance with the employment contract. He confirmed he held a Subclass 417 visa at the time of application. He has not had a pay increase since October 2015 because of the uncertainty regarding his visa status.

26. The Tribunal discussed with the applicant whether his bachelor degree is a qualification listed in ANZSCO as being necessary to perform the tasks of the occupation Importer. The applicant indicated he considers it to be quite handy for the position because it gives him the opportunity to use clear communication skills in dealing with agents, when talking about issues such as pricing and quantities.

27. The Tribunal asked the applicant about his relevant work experience. He indicated he commenced working for the nominator in June 2015 having met the business owner through a mutual friend. The nominator asked about his work experience and whether he wanted to stay in Australia. He indicated he wanted to stay but needed to learn more English. The nominator offered him employment. When he started his duties required him to reorganise stock and look after the various catalogues. Soon after he was comfortable to serve customers. He also had some research duties, particularly in relation to Italian products. He recalls that he started undertaking importer duties in about October/November 2015. He understands the nominator advertised the position.

28. The Tribunal asked about the other employees working in the business. He indicated Margot Ciccarelli, a family member of the business owner, is his assistant and follows up/ checks on orders. She works 3 or 4 days a week. Lisa Ciccarelli is a buyer, which is a different role to importer.  He believes an importer has more responsibility than a buyer because it deals with the importing process, making sure all arrangements are in place and the container list and required documents are correct. The buyer simply chooses what to buy.

29. The Tribunal noted the reference suggests the applicant has expert knowledge of customs regulations. It asked the applicant to describe the relevant regulations. The applicant indicated the requirements are already dealt with by the freight company in Italy. The freight company organises the documentation. He said shipping is ruled by international law. Once the goods arrive he is responsible under the World Trade Organisation rules. If they have a problem he makes sure things are not affected. For example last year fumigation was compulsory because a bug was found in cargo from Italy.  The Tribunal asked the applicant about tariffs and licences. He indicated tariffs are calculated according to volume, depending on the source country. The company pays the tariff directly to the manufacturers.

30. The Tribunal asked the applicant about the reports he has prepared in the past. He indicated he prepared a report regarding the fumigation issue. He dealt with Customs because the customer needed the tiles urgently. He prepared a business plan report in 2017 relating to customer service. This was a reference to a project he has been working on, developing a live chat facility for the business. The applicant does not prepare financial statements. He prepares estimates for customers. He started doing this in 2016, after the visa application was made. He provides estimates by email and over the phone.  He deals with retailers and builders, and another member of staff deals with wholesalers.  He has not dealt with insurance as the freight companies manage this. He has dealt with Italian agents and also with Chinese agents for marble and stone.

31. The Tribunal noted the first version of his resume provided to the Department described his employment with the nominator prior to the visa application as being in the role of storeman and he subsequently provided a resume indicating he was employed as an importer. The Tribunal explained that this may raise concerns that in fact the bulk of the applicant’s work was as a storeman at the time of the visa application, given the resume provided in May 2016 described his employment as that of a storeman. The applicant indicated in the first instance he was not really a storeman because he was reorganising stock. However he acknowledged in the first 3 months of his employment he was not really a proper importer. As he became more familiar with the business he took on an importer role and his duties increased. He was rewriting his resume so he added those increased duties.

1. The Tribunal asked the applicant about his relevant employment in Italy. He indicated his family owned the business in Italy. He undertook administrative duties and served customers. He confirmed he does not have any documentation, such as tax records, to confirm his employment with Geom. Felice D’Agostino. The company closed down in 2012 and he has had no ongoing contact with the accountant.

2. The applicant agreed to provide his tax returns and other information relevant to other employees at the nominator’s business. He provided his ATO notices of assessment indicating he earned $55,436 in the 2016 financial year, and $54,223 in the 2017 financial year. He also provided a statement from the nominator describing his work relationship with the buyer and Margot Ciccarelli who assists him with requirements as requested.

3. The Tribunal has had regard to the ANZSCO description for the nominated occupation. The relevant unit group description states in part as follows:

   UNIT GROUP 1333 IMPORTERS, EXPORTERS AND WHOLESALERS

   IMPORTERS, EXPORTERS AND WHOLESALERS plan, organise, direct, control and coordinate the operations of importing, exporting and wholesaling establishments.

   Indicative Skill Level:
   In Australia and New Zealand:

   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 addition to the formal qualification (ANZSCO Skill Level 1).

   
   Tasks Include:

   oidentifying local and overseas business opportunities

   odeveloping and implementing business plans, and marketing, operating, human resource, pricing and credit policies and procedures

   odetermining the mix of products and services to be provided and negotiating conditions of trade

   oliaising with local and overseas suppliers and distributors about orders and products

   oresearching regulatory and statutory requirements affecting the importing, exporting, wholesaling and distribution of goods

   omonitoring business performance and preparing estimates, financial statements and reports of operations

   oappointing agents and distributors

   oarranging the shipping of goods into and out of the country

   ooverseeing the display and sale of merchandise and preparation of product information for customer service staff and customers

   oimplementing after-sales service procedures

   
   Occupations:

   133311 Importer or Exporter
   133312 Wholesaler

   
   133311 IMPORTER OR EXPORTER

   
   Plans, organises, directs, controls and coordinates the operations of an importing or exporting establishment.

   Skill Level: 1

   Assessment of the evidence

4. Having regard to the requirements of cl.187.234 and the instrument IMMI 15/083, the Tribunal notes the class of person specified in the instrument for the purposes of cl.187.234(a) is a person who is earning the top ATO individual annual income (at least $180,001 per annum), or eligible New Zealand citizens holding Subclass 444 visas, or a New Zealand family member holding a Subclass 461 visa. The Tribunal notes the applicant was the holder of a Subclass 417 working holiday visa and on a base salary of $57,200. Therefore he is not a person in the class specified by the Minister for cl.187.234(a).

5. The Tribunal notes the applicant was nominated in the occupation Importer which is not an occupation specified by the Minister in the legislative instrument for the purposes of cl.187.234(b).

6. Therefore the applicant is required to hold qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation. The Tribunal has had regard to the ANZSCO description for the nominated occupation set out above.  The applicant therefore must demonstrate that he has either a bachelor degree or higher qualification, or at least five years of relevant experience to substitute for the formal qualification.

7. Written submissions were made by the applicant’s representative as to why the applicant’s bachelor degree should be considered sufficient to meet cl.187.234(c). The Tribunal has considered this argument. It notes cl.187.234(c) requires more than just a bachelor degree as it states that the applicant is required to hold qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation. The Tribunal is not satisfied that any bachelor degree would provide the applicant with the qualifications necessary to perform the tasks of the nominated occupation.  The Tribunal therefore has considered whether the applicant’s bachelor degree in Technologies of Education and Communication is relevant to the occupation Importer. In doing so it has considered all of the evidence provided regarding that qualification.  While it accepts the applicant’s qualification provides him with communication skills relevant to public relations activities, journalism and communications technologies, and this may assist in his duties, it is of the view the applicant’s bachelor degree is not a qualification listed in ANZSCO as being necessary to perform the tasks of the occupation Importer. Having considered the applicant’s transcript the Tribunal is not satisfied the subjects undertaken are sufficiently relevant to the tasks of an Importer. Having regard to the ANZSCO description of the occupation’s duties the Tribunal is of the view the occupation requires skills in areas such as international trade, business, commerce, customer relations and marketing. The Tribunal is not satisfied his bachelor degree covers these areas.  The Tribunal notes that the applicant has also completed a general English course and an IELTS preparation course however it does not consider these courses to be equivalent to a bachelor degree level.

8. Therefore the applicant must rely on his relevant work experience which may substitute for the formal qualification. The Tribunal has had regard to applicant’s resume provided in May 2016 in support of the visa application. It indicates that the applicant was employed with the nominator in the period June 2015 to the time the resume was provided as a storeman. It has also had regard to his amended resume and, the work reference and his written and oral evidence regarding his employment history.

9. The Tribunal is satisfied the applicant worked in a family business in the period October 2009 to October 2011 as a Junior Sales Manager and Account Assistant. It accepts his oral evidence that he undertook administrative duties and served customers. His written evidence was much more detailed suggesting he communicated extensively with international businesses and manufacturers to order stock for importation, managed the importation and exportation process, accepted, confirmed and organised imported stock upon arrival and executed business performance activities including profit and loss reports and appointed agents and distributors.  The Tribunal is of the view the applicant’s amended written resumes may be somewhat embellished. However even if the Tribunal accepts the applicant was employed in an importer role in the family business, at best this would be 2 years of relevant work experience.

10. The Tribunal has considered the applicant’s employment with the nominator. It accepts his oral evidence that his initial duties required him to reorganise stock and look after catalogues and he then moved on to serving customers, research duties, and importer duties in about October/November 2015.  Even if the Tribunal accepts the applicant worked as an Importer from the time he started working with the nominator in June 2015, at best at the time of the application he had about 4 months’ relevant work experience.

11. Having regard to all of the applicant’s evidence the Tribunal is of the view that at the time of application, the applicant had at most about 2 years and 4 months relevant work experience.  The Tribunal accepts the applicant’s bachelor degree has provided him with communication skills which no doubt enhance his ability to communicate with customers, agents and other parties. It accepts that the applicant has been performing the duties of an importer since making the visa application and that he now has 5 years’ relevant work experience. However cl.187.234 is a time of application requirement and in the Tribunal’s view it cannot take into account the employment experience since the time of application.

12. Having considered all of the applicant’s evidence regarding his qualifications and work experience the Tribunal is not satisfied the applicant had, at time of application, at least 5 years of relevant experience to substitute for a relevant formal qualification.  In these circumstances, the Tribunal is not satisfied the applicant meets cl.187.234(c).

13. Therefore, cl.187.234 is not met.

14. 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.

    DECISION

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

    Denise Connolly
    Member