HN Auto Group PTY LTD ATF HN Family Trust (Migration)

[2019] AATA 2654

HN Auto Group PTY LTD ATF HN Family Trust (Migration) [2019] AATA 2654 (8 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  HN Auto Group PTY LTD ATF HN Family Trust

CASE NUMBER:  1615929

DIBP REFERENCE(S):  BCC2016/947946

MEMBER:Ian Berry

DATE:8 January 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 08 January 2019 at 12:18pm

CATCHWORDS

MIGRATION – nomination of an occupation (employer nomination) – Direct Entry Nomination stream – occupation of Supply, Distribution and Procurement Manager – genuine need for the position – tasks performed correspond to a specified occupation – estimates of business volume – position suggestive of a larger organisation – decision under review affirmed

LEGISLATION

Migration Act 1958, s 245AR
Migration Regulations 1994, Schedule 2, cl 457.223; r 5.19

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 20 September 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (Regulations).

2. The applicant applied for approval on 7 March 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains 2 alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the information provided by the applicant to the delegate suggested that the nominated position is more in line with a purchasing and supply logistics clerk (Purchasing Officer ANZSCO 591113) than a supply, distribution and procurement manager (Procurement Manager ANZSCO 133612).

5. The applicant appeared before the Tribunal on 8 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Han Zhang the sole director of the applicant. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

8. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

   ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 15/092), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

   ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

9. The starting position is to examine the roles of the procurement officer and that of a purchasing officer which includes the qualifications required for the roles and the experience also required.

10. The next step in deciding the issue is to examine the tasks to be performed in each role, including the reasons for the delegate’s decision, the submissions made by the applicant and the written and oral evidence any documents tendered and received through the hearing process.

    The role of the Procurement Manager (ANZSCO 133612)

11. A procurement manager has an overall role, which includes the planning, organising, directing, controlling and coordinating the supply, storage and distribution of goods, products and services used by the organisation, which in this case, is the applicant’s business ‘HN Auto Vinyl’.

12. The tasks of the procurement manager as set out in ANZSCO are as follows:

    ·The determining, implementing and monitoring the 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 infantry systems to meet supply requirements and control stock levels.

    ·Operating recording systems to track movements of supplies and finished goods.

    ·Ensuring re-ordering and restocking 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 the performance of that staff.

    ·Providing products and services to meet customers requirements.

13. The qualifications required for the position of procurement officer is a bachelor degree or higher qualification. However, at least 5 years of relevant experience may substitute for the formal qualification, and on-the-job training may be an additional factor. ANZSCO’s skill level is level 1.

14. ANZSCO defines level 1 as including bachelor degree or a higher qualification. Skill level 1 is defined as a function of the range and complexity of the set of tasks performed in a particular occupation. The greater the range of complexity of the set of tasks, the greater the skill level of an occupation.

    The role of the Purchasing Officer (ANZSCO 591113)

15. This role is not included in IMMI 15/092. Therefore, it is not a position available to the nominator or the visa applicant in seeking an RN 187 visa and nomination.

16. A Purchasing Officer prepares and processes orders for quotes and services, monitors stock levels and supply sources while maintaining stock and inventory levels. It includes the recording and coordinating the flow of materials between departments, preparing reduction schedules, administering and coordinating storage and distributional operations within organisations.

17. The skill level is under the Australian qualification framework (AQF) either a Certificate II or III (ANZSCO skill level 4). Experience is at least one year of relevant experience, which may be the substitute for the certificate qualification. On-the-job training may be relevant in some instances.

18. The tasks involved in the position of a purchasing officer include, but are not limited to the following):

    ·Requisitioning supplies from stock and sending orders to other departments and also outside firms.

    ·Confirming completion of orders including signing tally sheets which are attached to check items. If orders have specified details, and ensuring that compliance has been maintained.

    ·Checking inventories and preparing delivery schedules.

    ·Receiving and checking purchase requests against inventory records and stock on hand.

    ·Examining containers ensuring that the order is filled, and recording the quantities.

    ·Investigating and identifying supply sources, preparing and processing purchase orders.

    ·Providing to prospective customers price and other relevant information.

    ·Reconciling incoming stock with requisitions; updating inventory and stock location records.

    ·Establishing and coordinating the operation of procedures for the receiving, handling, storing and shipping goods.

    The nominated position’s tasks and background

19. The applicant is a corporate trustee operating 2 businesses: A 7-Eleven convenience store on the Gold Coast and a motor vehicle vinyl wrapping business at Nerang being within a designated regional area in Queensland.

20. The books of account submitted by the applicant referred to the financial affairs of both businesses and therefore it is difficult to gauge the size of the motor vehicle wrapping business from the financial statements alone. While the applicant describes it as medium, the Tribunal accepts that it is a small business.

21. The applicant’s director had previously started a retail wrapping business in Brisbane but was only concerned with the retail selling of the ‘wrap’. The wrap was sold to do-it-yourself customers or customers who took the wrap to a ‘professional’. Mr Zhang says he met visa applicant Mr Lu, during this time, as he was involved in the business of applying the wrap to customers’ cars.

22. Mr Zhang then moved to the Gold Coast after purchasing the 7-Eleven convenience store. The applicant was created for this purpose. After establishing the 7-Eleven convenience store, the applicant commenced the business of ‘wrapping motor vehicles’. HN Auto Wraps (Business) supplies the wrapping and applies it. The wraps are sourced from different companies both in Australia and overseas. These wraps have their own specific qualities and price.

23. The Business has 4 employees with Mr Zhang (the trustee’s only director) being the marketing manager. The visa applicant (Mr Lu) is employed as the procurement manager; Mr Pei does some wrapping; and also employed is a casually employed accountant. As part of the team, the business contracts with subcontractors to do the majority of the ‘wrapping’ process. The wrapping is applied using techniques and special tools and differs in respect of each supplier. Mr Lu attends the various suppliers’ training courses where updated techniques and the use of special tools required. Mr Lu has attended a course in China to such a training course.

24. The time taken to wrap a car depends on its size but to the applicant’s director says that probably 2 to 5 days is a range to complete a job. Typically the business would complete 2 to 3 cars per week. In giving that estimate frequency can be as high as 5 to 6 cars in a week.

25. Mr Zhang says his involvement in the wrapping business measures at about 90% of his time. The Business has been in business since 2012 and the work and sales have steadily increased with bookings in 2019 (since the hearing 8 December 2017).

    The duties of the Procurement Manager

26. Mr Zhang describes the tasks of his visa applicant Mr Lu as follows:

    (a)The ‘wrap job’ is measured by Mr Pei, with Mr Lu reviewing the job measurements to ensure accuracy and correctness.

    (b)Mr Lu selects and/or reviews the colour selection.

    (c)For future jobs, past job measurements are recorded and filed for future use.

    (d)Mr Lu will check with the supplier for confirmation of  the relevant information including the brand colour, the stretch factor associated with the brand.

    (e)Mr Lu will check the motor vehicle measurements after it has been measured to ensure accuracy.

    (f)Problems with wrapping material, Mr Lu will ‘sort it out’ with the supplier.

    (g)He will order the wrapping and to check once received to ensure it complies with the ordered specifications.

    (h)Overseeing the job generally to its completion.

    (i)Liaising with customers with after-sales problems.

    (j)Doing other matters generally incidental to the above tasks.

27. The nominated position needs to satisfy the Tribunal that it is a position requiring a person having a bachelor degree or higher, satisfies the tasks, general description associated with the position of ‘procurement manager’.

28. The applicant does not accept the opinion of the delegate that the nominated position of procurement officer does not fit the applicant’s model as there is an implicit restriction of the position in the ANZSCO description and tasks only to larger organisations. The delegate makes the following statement:

29. Based on the information provided with the application, I have taken the view that Purchasing Officer (ANZSCO 591113) outlined below provides the best match in occupational descriptors for the nominated role and that the duties of the nominated role within the business, correspond to a very significant degree to this occupation.

    ·591113 Purchasing Officer. Alternative title: Procurement Officer.

    ·Prepares purchase orders, monitors supply sources and negotiates contracts with suppliers. Skill Level: 4.

    ·Tasks include:

    oRequisitioning supplies from stock and sending orders to production departments and other firms.

    oConfirming completion of orders and compliance with details specified, signing tally sheets and attaching to checked items.

    oReceiving and checking purchase requests against inventory records and stock on hand.

    oExamining orders and compiling data production schedules.

    oChecking inventories and preparing delivery schedules.

    oExamining containers to ensure that they are filled, and recording quantities.

    oInvestigating and identifying supply sources and preparing and processing purchase orders.

    oProviding price and other information about goods to prospective customers.

    oCounting income in stock and reconciling it with requisitions, and updating inventories and stock location records.

    oEstablishing and coordinating the operating procedures for receiving, handling, storing and shipping goods.

30. The delegate concludes - after careful assessment of the information before me, I find that Procurement Manager (ANZSCO 133612) as described in ANZSCO is not the occupation most closely aligned to the nominated position. While I appreciate that some of the duties and tasks are similar, the nominated position is not of the same scope and complexity. For example, the nominated position is not responsible for directing and monitoring staff activities and is not responsible for determining, implementing and monitoring strategies, policies and plans.

    I have also considered that a Procurement Manager is generally required in a medium to large sized organisation due to the complexities of the role and management of staff. However, the nominating business is relatively small in scope. Having regard to the size of the nominating business, it is not reasonable to expect that the business would require a Procurement Manager to perform the majority of tasks at a comparable level of complexity as described in the ANZSCO dictionary.

31. The language used in describing the description and tasks of the Procurement Manager is strongly suggestive of a larger organisation with various departments. The procurement manager is managing not only the organisation internally but also externally. Internally, it seems that a procurement manager is controlling the strategies of the organisation’s purchasing officers.

32. It is suggestive that within the organisation that has a procurement manager, it may have purchasing officers doing less complex duties.. For instance, the description suggests a larger role for the procurement manager in that the manager is involved in the organisation planning and controlling of supply storage and distribution. The skill level is 1 which is a bachelor or higher degree. The 1^st task refers to the procurement manager at determining, implementing and monitoring purchasing, storage and distribution strategies, policies and plans. That task is more in line with an overarching role in managing the procurement system. Further, preparing implementing plans, negotiating contracts and monitoring inventory systems are all involved in systems of complexity and quantity.

33. The Business does not have that complexity and is not involved in large stock numbers requiring storage or inventory. The Business is more related to accepting a job, measuring, ordering, accepting the order, check it and having it provided to the subcontractor for completion.

34. The Tribunal does not necessarily accept the tasks of the nominated position with the applicant are in line with a purchasing officer, but does find, and is satisfied that the majority of the tasks of the applicant’s nominated position are not consistent with that of the position of a procurement manager.

35. Accordingly the requirements of r.5.19(4)(h) are not met.

36. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4).  The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

37. The Tribunal affirms the decision under review to refuse the nomination.

    Ian Berry
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).