Fonefield Telecommunications Pty Ltd (Migration)

[2017] AATA 1124

Fonefield Telecommunications Pty Ltd (Migration) [2017] AATA 1124 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Fonefield Telecommunications Pty Ltd

CASE NUMBER:  1514018

DIBP REFERENCE(S):  BCC2015/1876511

MEMBER:Wan Shum

DATE:5 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 05 July 2017 at 1:59pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 (Temporary Work (Skilled)) visa applicant – Genuine position – Marketing Specialist – Tasks of position not at level of complexity expected for nominated occupation

LEGISLATION

Migration Act 1958, ss 140GB, 140GBA

Migration Regulations 1994, r 2.72, r 2.73

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 on 29 September 2015 to refuse to approve the nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. Fonefield Telecommunications Pty Ltd, the nominator, applied for approval on 30 June 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate was not satisfied that the position is genuine and decided not to approve the nomination on the basis that r.2.72(10)(f) had not been satisfied.

4. The nominator has sought review of that decision. A representative was appointed in relation to the review, who was also the representative for the Subclass 457 visa applicant, Mr Jiawen Zi.

5. Mr Garfield Song appeared on behalf of the nominator at a hearing of the tribunal on 23 February 2017. The visa applicant was invited to attend but withdrew his application for review prior to the hearing. The representative attended the hearing.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

2. The nomination was for the occupation of Marketing Specialist and identified Mr Jiawen Zi, the visa applicant, as the person who will work in the nominated occupation. Some changes were made to the 457 program on 19 April 2017 and 1 July 2017 in respect of this occupation, which mean that the nomination of this occupation is now subject to additional considerations or ‘caveats’. According to the information provided by the department, the caveats are designed to ensure that in the context of this occupation, employer sponsored skilled visa programmes continue to be used for highly skilled and specialised marketing positions that will make strategic contributions to the nominating organisation/business.

3. The business of the nominator is a Vodafone Hutchison Australia dealer with a number of retail stores across Sydney. Vodafone Hutchison Australia (Vodafone) is a mobile telecommunication services provider in Australia. Mr Garfield Song is the owner and sole director of the business.

4. The accountant and tax agent of the company, Mr Stephen Gao, has described the main business as “retail commission-based Vodafone Dealer operation”. The main source of income is the commission based income through mobile phone connections and trading income from retail sales.

5. According to the Exclusive Dealer Agreement (the Agreement) between Vodafone and the nominator, Vodafone agreed to appoint the nominator to “promote, sell and/or obtain orders for [Vodafone] Services and Products” in around December 2011. A further variation agreement was entered dated 31 May 2016.

6. The Agreement includes a section ‘Advertising, Branding and Intellectual Property Rights’ which includes guidelines and restrictions on advertising materials permitted. It is a requirement that the advertising material used in the retail outlet must be that provided by Vodafone.

7. Mr Song gave evidence that he started the company in 2007-08 and had previously worked for around 20 years for Vodafone. He has established Vodafone retail shops in Broadway, Chatswood, Macquarie and Neutral Bay, and is currently under negotiation for shop leases in Chippendale and Bankstown. The target customer for most of the business’s shops is for Chinese customers, particularly students and tourists; only the Neutral Bay store is mainly aimed at local Australians. According to the organisation chart provided, the business employs around 28 staff, including a sales and marketing manager, five shop managers and 18 sales staff.

Position must be genuine

1. One of the requirements is that the position associated with the nominated occupation is genuine (r.2.72(10)(f)). This requires the Tribunal to consider whether or not the position is genuinely needed by the nominating employer and requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor.

2. According to ANZSCO, a Marketing Specialist ‘identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services’. It appears under the Unit Group 2251 ADVERTISING AND MARKETING PROFESSIONALS, which is set out in part below:

   UNIT GROUP 2251 ADVERTISING AND MARKETING PROFESSIONALS

   ADVERTISING AND MARKETING PROFESSIONALS develop and coordinate advertising strategies and campaigns, determine the market for new goods and services, and identify and develop market opportunities for new and existing goods and services.

   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:

   oplanning, developing and organising advertising policies and campaigns to support sales objectives

   oadvising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services

   ocoordinating production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints

   oanalysing data regarding consumer patterns and preferences

   ointerpreting and predicting current and future consumer trends

   oresearching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information

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

   ocommissioning and undertaking market research to identify market opportunities for new and existing goods and services

   oadvising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels

   
   Occupations:

   225111 Advertising Specialist
   225112 Market Research Analyst
   225113 Marketing Specialist

…

225113 MARKETING SPECIALIST

Alternative Titles:
Marketing Consultant
Marketing Coordinator
Marketing Officer

Identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services.

Skill Level: 1
Specialisations:

Brand Manager
Category Manager
Product Manager
Sales Promotion Officer

1. The occupation of Marketing Specialist is therefore a specialised, professional and skilled position within a business.

2. Based on the evidence presented, it appears to the Tribunal that the position of Marketing Specialist for a Vodafone dealer is somewhat limited by the terms of the Agreement. This is in part because of there being a requirement to apply to Vodafone head office for approval of the content of print material and offers to customers. Mr Song told the Tribunal that there was scope for Local Area Marketing (or LAM) within the dealer agreement. Examples of brochures and print advertisements for Chinese newspapers/magazines were submitted, which include details of the business’s retail outlets primarily the Chatswood kiosk and store, Macquarie and Broadway.

3. However, all advertising and marketing material has to be in-line with Head Office requirements and some need to be approved by the legal department, such as Chinese language print material. A copy of the Vodafone Partner Guidelines (the Guidelines) for posters and press indicates the strict parameters placed on the nominator as a Vodafone dealer including: typography which includes font, the positioning of the Vodafone logo and the dealer logo; the positioning of phones within the advertisement. This appears to greatly limit the scope of the role of the proposed Marketing Specialist position.

4. It is apparent that there is no scope for the position to advise on pricing as this is set by Vodafone or distribution channels. Other elements of marketing such as advertising are limited by the terms of the Agreement, and are directly affected by national campaigns run by Vodafone head office. Mr Song gave an example where there was not much point advertising Apple products, if Vodafone head office was spending money advertising Samsung. In terms of developing plans for pricing and promotion, the pricing is set by Vodafone. According to Mr Song, there is some scope for marketing directly to existing customers with new deals through SMS messages and social media such as WeChat which are not monitored to the same degree by Vodafone. Mr Song is particularly interested in using WeChat as a platform to promote products, and the Marketing Specialist will be responsible for this area of promotions. The nominator currently has a website under construction; Mr Song said that Head Office is concerned with the use of Facebook for promotions but is not interested in WeChat yet. The evidence presented indicates that Vodafone ‘support’ their partners (the dealers) by providing information collected on customers who may then be invited to upgrade to a higher plan. This is referred to as ‘customer upgrade data’ and provided monthly to the Vodafone dealer. The information provided from Vodafone is the customer’s contact number, name, plan, device and store. It seems that limited analysis is required in terms of upgrading existing customers.

5. The only real area where there is some scope to provide a more tailored product or service is the gift with purchase (GWP) offered by individual outlet/stores. An example of a GWP is a free phone case or LCD guard or car charger or a combination. But even then, the Tribunal notes that the Guidelines specify the proper layout of GWP in print advertisements and brochures which includes the shape and size of the picture, and number of items permitted. In the Tribunal’s view, such restrictions severely limit the role of Marketing Specialist for a mobile phone dealer.

6. Furthermore, the business has a Sales Manager who designs and approves the package deals and makes decisions as to when to introduce a new product and oversees the whole company’s sales strategy. The Sales Manager also oversees the shop managers.  

7. During the hearing, Mr Song gave evidence that the Marketing Coordinator would undertake marketing activities, execute the advertising plan, forecast and predicts consumer trends; liaise with third parties such as event companies at Universities during orientation week; arrange to rent the stall at the University; undertake coordination of print advertisements with magazines. He said that Mr Zi has undertaken these tasks having worked for the nominator for nearly 3 years. However, in a letter received following the hearing, it was explained that Mr Song himself has been handling the majority of the communications and dealings with marketing events while the position was vacant. It was stated that Mr Zi has been helping and assisting with more hands-on jobs such as market research, data analysis, translation, sending SMS, sending WeChat feeds, handing out flyers, delivering posters, and setting up event stalls.

8. Mr Song told the Tribunal at the hearing that every few years it is necessary to refurbish the store as required under contract with the shopping Centres. When the store re-opens or for the grand opening of a store, Mr Zi has arranged balloon arches and face-painting for kids at the stores to attract customers. Some of the promotions include having special offers on accessories or half price handsets. They use different strategies for different customers, for example they might do handouts of flyers to small to medium business owners or neighbouring shop owners; but for students they would contact student education agents and different universities. When asked about who formulates these ideas, he said he thought it was a discussion piece between Mr Zi and the Sales and Marketing Manager. However, the Tribunal has some doubts about this given the letter received after the hearing which sets out that as a part-time employee Mr Zi “reports to director and sales manager to support decision making on marketing activity adjustment and future marketing planning”. It seems that Mr Zi is currently undertaking administrative tasks that are not at the level of a Marketing Specialist. It notes that Mr Song had indicated that he had undertaken a lot of the marketing himself but that he cannot handle the tasks due to other business commitments.

9. Having considered all the evidence, while the position appears to involve duties associated with marketing, the Tribunal is not persuaded that the tasks would be at a level of complexity of the occupation of ‘Marketing Specialist’ which is an ANZSCO Skill Level 1, Major Group 2 Professionals. According to ANZSCO, an advertising and marketing professional’s tasks include being engaged in planning, developing and organising advertising policies and campaigns; advising executive and clients on advertising strategies and campaigns. Given the prescriptive guidelines issued by Vodafone in respect of posters and advertising, the Tribunal does not consider that the position would be properly engaged in undertaking these tasks at a level consistent with the occupation of Marketing Specialist as classified in ANZSCO. Furthermore, Vodafone undertake national marketing campaigns which have a direct impact on the promotional activities of individual stores. The Tribunal acknowledges that there is some scope for utilising Chinese language in promotional materials and putting together GWP but considers this to be limited and not at the required level of complexity.

10. Given the nature of the business as a Vodafone dealer and having regard to the evidence and material presented, the Tribunal considers that the scope for marketing and promotion is not at a level of complexity as would be expected for the occupation of ‘Marketing Specialist’. It thus does not consider that this is a genuine position for the occupation of Marketing Specialist (ANZSCO code: 225113).

11. For these reasons the requirements of r.2.72(10)(f) are not met.

12. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to approve the nomination.

Wan Shum
Member