Jeong (Migration)

Jeong (Migration) [2020] AATA 2702 (26 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ha Jin Jeong
Ms Jinmin Cha
CASE NUMBER:  1730264
DIBP REFERENCE(S):  BCC2016/3170987
MEMBER:Nicola Findson
DATE:26 June 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 26 June 2020 at 3:48pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – skills, qualifications and employment background to perform tasks of nominated occupation – tasks of occupation as listed in ANZSCO and position description – applicant’s tasks in similar occupations in home country and Australia – change to higher job title with same lower-level duties continuing – company currently not operational, with no employees – plan to work for associated entity until sponsor obtains contracts – evidence lacking in detail and unpersuasive – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(da)
CASES
Drake and MIEA [1979] AATA 179
Re Drake (No 2) (1978-1980) 2 ALD 634
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 23 September 2016. At the time the visa application was lodged, Class UC contained Subclass 457. The 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 alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.457.223(4)(da) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, Human Resources Manager.
The applicant appeared before the Tribunal on 19 December 2019 to give evidence and present arguments. He stated that he was appearing on behalf of himself and the secondary applicant. The Tribunal also received oral evidence from Mr Beomuk Kim, Director of the applicant’s sponsoring company. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).
Skills, qualification and employment background of the applicant
Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In this case the nominated occupation is Human Resources Manager.
In determining whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, the Tribunal has had regard to the Procedures Advice Manual of the Department of Home Affairs (PAM3). The Tribunal observes that whilst it may be guided by policy it is not bound to follow it.[1] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. The Tribunal notes that in Drake and MIEA [1979] AATA 179 Brennan J (as he was then) made the following comments:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
[1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
In the interests of consistency in decision-making the Tribunal considered that it should have regard to the policy in this case. The policy notes, amongst other things, that the qualifications and experience of the applicant should be commensurate with the qualifications and experience specified for the occupation in the relevant ANZSCO Code. It goes on to state that the ANZSCO should be referred to as the principal source of information on the normal tasks or duties and skill requirements for occupations in Australia. It notes that ANZSCO skill level references represent the entry level skill required for a particular occupation. In all cases, case officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation.
In ANZSCO the following information regarding the duties and skills are listed for the occupation of Human Resources Manager:
UNIT GROUP 1323 HUMAN RESOURCE MANAGERS
HUMAN RESOURCE MANAGERS plan, organise, direct, control and coordinate the human resource and workplace relations activities within organisations.
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:
odetermining, implementing, monitoring, reviewing and evaluating human resource management strategies, policies and plans to meet business needs
oadvising and assisting other Managers in applying sound recruitment and selection practices, and appropriate induction, training and development programs
odeveloping and implementing performance management systems to plan, appraise and improve individual and team performance
orepresenting the organisation in negotiations with unions and employees to determine remuneration and other conditions of employment
odeveloping and implementing occupational health and safety programs and equal employment opportunity programs, and ensuring compliance with related statutory requirements
ooverseeing the application of redundancy and other employee retrenchment policies
omonitoring employment costs and productivity levels
omay train and advise other Managers in personnel and workplace relations matters

Occupation:
132311 Human Resource Manager

132311 HUMAN RESOURCE MANAGER

Plans, organises, directs, controls and coordinates the human resource and workplace relations activities within an organisation.
Skill Level: 1
Specialisations:
Kaiwhakahaere Tumu (NZ)
Occupational Health and Safety Manager
Training and Development Manager
Workplace Relations Manager
After consideration of the following evidence, the Tribunal is not satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Human Resources Manager.
When applying for the visa the applicant stated that he had been working as a Transport Company Manager for Mr Grand Staff Pty Ltd, the sponsor, since September 2015. He also stated in his application that since his arrival in Australia, he had worked as a Transport Company Supervisor both for FSP International (between December 2011 and November 2012 and between January and July 2014) as well as JFC Australia (between January 2014 and September 2015). His resume indicates he gained experience as a Human Resources Manager while working for three different companies in South Korea, over a two and a half year period.
The applicant provided to the Department a reference from his sponsor, Mr Beomuk Kim, in which it is stated that the applicant had been employed by Mr Grand Staff Pty Ltd on a part-time basis since September 2015. The reference sets out that the applicant is in charge of the operational and business development areas of the company, with his main focus being “creating delivery schedules that meet the customers’ needs, coordinating drivers and their routes and keeping accurate records so that we can meet our service level commitments”. The reference states that the applicant “is primarily responsible for ensuring that all goods are properly stored by warehouse workers when they come into the warehouse to ensure the goods do not become spoiled. His other tasks include arranging collection and delivery of goods as well as ensuring that proper procedures are followed for loading and unloading of goods”.
The applicant also provided a document entitled Letter of Recommendation from Mr Gilhong Choi, who was a Director of a company the applicant had worked for in Korea. The letter (as translated) sets out that the applicant worked as a manager and his tasks included:
·“casting of perfect actors/actresses together with team members to complete various dramas;
·participated in various auditions to find various actors/actresses;
·established vast database for casting of numerous actors/actresses into appropriate roles;
·maintained good relationship with broadcasting directors, production companies, entertainment companies for smooth business co-operation”.
On 12 December 2019, the Tribunal was provided with a pre-hearing written submission by the applicant’s representative. It was submitted, among other things, that the applicant’s skills and employment background are relevant to the occupation of Human Resources Manager.
The submission also provides some background to this matter. It sets out that the sponsor’s business is involved “in the provision of contractual services to transport foodstuffs to various Asian goods retail businesses around Perth”, and that the applicant began working for the sponsor in September 2015 to help manage this newly established business. It sets out that on 23 September 2016, the applicant was nominated for a position as a Transport Company Manager by the sponsor. On that same day the applicant’s visa application was also made. However, due to issues with the sponsor’s standard Business Sponsorship application, the nomination application was subsequently withdrawn. A new nomination application in relation to the same position of Transport Company Manager was made on 6 April 2017. On 2 August 2017, the Department wrote to the sponsor indicating that it was its view that the nomination would likely not meet r.2.72(10(aa), because the nominated occupation does not apply to a nominee if the position: predominantly involves responsibility for low skilled tasks (eg truck driving); is in a business that has an annual turnover of less than $1M; or is in a business that has fewer than five employees. By way of response to this letter, on 16 August 2017, the sponsor withdrew its nomination application. A new contract was then signed by the applicant to work in the role of a Human Resources Manager with the sponsor from that same date. On 22 August 2017, the sponsor made a new nomination application for a Human Resources Manager, and this application was ‘relinked’ to the current visa application. The sponsor’s nomination was approved on 8 November 2017.
The submission sets out the tasks relevant to the roles of both a Human Resources Manager as well as a Transport Company Manager, as described by ANZSCO. It is submitted that a job description annexed to the applicant’s contract of employment in respect of a Company Transport Manager, which are the essential tasks of the nominee’s job, “contains many common elements with the ANZSCO listing” of a Human Resources Manager. Those tasks include:
·coordinating activities associated with the arrival, departure, loading and unloading of vehicles and their cargo;
·to ensure the operation complies with all legislative requirements for the transport and handling of equipment and freight as required by the operational departments;
·mentor, lead and guide all supervisors and staff to ensure delivery of service is as per the business’/customer’s requirements;
·analyse fleet performance and take necessary corrective actions within stipulated guidelines, identify equipment efficiencies and seek improvements.
In addition, it is submitted that ANZSCO’s descriptions are a guide to the tasks undertaken and skills involved in various occupations and are not a definitive statement of what is required. It is submitted that both roles held by the nominee with the sponsoring business have related tasks and accordingly his experience in these roles should be aggregated by the Tribunal in its consideration of whether cl.457.223 is met at the time of its decision.
It is submitted that the applicant’s previous work experience, as a manager with talent companies in Korea, as well as his managerial roles with courier companies in Australia are relevant to the nominated occupation. It is submitted the nominee’s work at various talent companies was fundamental to developing his skills in dealing with external and internal stakeholders, particularly with schedule management and public relations. He also had to manage teams to find appropriate actors, manage databases, conduct industry research and was involved in target-focused recruitment. It is submitted the nominee’s ability to deal with people was well-honed in his Human Resource role positions in Korea and so managing the complexities of his current employer comes naturally to him and enables him to handle all aspects of the role. It is also submitted that while working as a Transport Company Supervisor (which is not defined in ANZSCO) in Australia the nominee became familiar with the industry.
It is claimed that the applicant has worked in the nominated role on a part-time basis from 15 August 2017 to 15 February 2019, and on a full-time basis since obtaining full work rights from 15 February 2019 until late September 2019. It is submitted he is currently on a period of paternity leave, after the birth of his child on 28 November 2019, and is expected to return to full time work after the “holiday break” either at Mr Grand Staff Pty Ltd or an associated entity of the sponsor, Machnational Pty Ltd.
It is submitted that the nominee now has more than 5 years of experience in management both abroad and in Australia, including skills that are transferable across different areas of management, including Human Resources. It is submitted, therefore, that the correct and preferable decision would be to find he does have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation and that the requirements of cl.457.223(4)(da) are met.
The applicant also provided to the Tribunal material in support of his claims, including:
·A document entitled “Position Justification” signed by Mr Kim on 4 September 2017, which sets out that Mr Grand Staff Pty Ltd needs a Human Resources Manager to: lead the development of departmental goals, objectives and systems; provide leadership for Human Resources strategic planning and HR departmental measurements that support the accomplishment of the company’s strategic goals; develop and administer programs, procedures and guidelines to help align the workforce with the strategic goals of the company; oversee recruitment to ensure the firm keeps growing; provide education and materials to managers and employees including workshops, training, manuals, employee handbooks and standardised reports; assist with the development of and monitor the spending of the corporate budget. The document sets out that the applicant has the relevant experience and skills and that the sponsor wishes to sponsor him for the position.
·A copy of an employment contract between the sponsor and applicant, for the position of Human Resources Manager, dated 15 August 2017. This contract annexes the primary responsibilities of the position, which include:
oPerformance management and improvement systems
oOrganisational development planning
oEmployee onboarding, development, needs assessment, and training
oRecruiting and staffing
oPolicy development and documentation
oEmployee safety, welfare, wellness and health
At the hearing the applicant told the Tribunal he attended primary and secondary school in Korea. He said he enrolled in a computer course at University after he completed his secondary schooling in 2002. He said he completed one year of study before being required to do his military service in 2003. He said he returned to university in 2005 after he had done his military service, and although he studied for almost another year, he did not complete or graduate with any qualification. He told the Tribunal that when he ceased his studies, he was introduced by a friend (whose name he was unable to recall) to the broadcasting industry, in which he worked for about the next 4 years.
The Tribunal raised its concern about the level of responsibility he claims to have had working for the talent agencies in Korea, given his young age and relative inexperience. The applicant said he worked for Casting Gate Co Ltd for about 2 years, after completing a 6-month internship. He said he worked on a full-time basis and was responsible for “managing everything”. When probed further, he said formed a small team of four people who together would meet with producers, oversee auditions of actors and cast for roles, prepare contracts and meet with prospective sponsors. He told the Tribunal that there were four teams operating within the company, so there were others doing the same job as him. He said he reported to a Manager.
The applicant told the Tribunal that when Casting Gate closed because of financial difficulties, he, along with the rest of his team, moved to a different company, Human Train Co Ltd, in June 2008 and continued to do the “exact same job”. He said he remained in this role, on a full-time basis, for about 6 months.
The applicant told the Tribunal that this line of work had its ups and downs and he was not making a sustainable income, so he used his savings to open two bars in July 2009. He told the Tribunal that running these businesses became his full-time job. However, he indicated his old team wanted to keep working and he would get calls from producers from time to time who would ask him to help out with their programs, so he also kept his hand in casting work. He said that it got to the stage, in about October 2010, where he was working on 1 to 2 programs each month and was spending time doing casting work each day. So, he decided to close his bars and return to the broadcasting industry on a full-time basis. He told the Tribunal that he established his own broadcasting company, All Star Co Ltd. However, this venture did not last long because he was not working as effectively as he previously done and he lost his team. He said in March 2011 he ceased working for All Star Co Ltd and he made the decision to come to Australia.

The applicant confirmed to the Tribunal his visa history. He confirmed that he has held various visas since he first arrived in Australia on 8 May 2011, including working holiday (subclass 417) visas until 8 May 2013, an electronic travel authority (subclass 601) visa up until1 November 2013, student (subclass 570) visas (both as a primary visa holder and also a dependant on his wife’s student visa) up until 10 April 2017 and a series of bridging visas up until the present time. He told the Tribunal he had studied English while a student in Australia.
As to his employment experience in Australia, the applicant told the Tribunal that he worked for FSP International Pty Ltd as a Transport Company Supervisor from December 2011 to November 2012 and from January 2014 to July 2014. He said that the company was based in New South Wales, but it established a team to oversee a contract in Perth. He said he worked with about 12 other people during these periods.
The applicant commenced working for Japan Foods Company Pty Ltd (JFC), which is a supplier of imported Asian foods in Perth, as a Transport Company Supervisor in July 2014. He said he was successful in obtaining this position because the company wanted an Asian manager. He said he was responsible for advertising and interviewing for staff members to load and unload deliveries and he also taught them how to do their jobs.
The applicant told the Tribunal he commenced working for his sponsor in September 2015. He said at this time he was wanting to obtain a visa to remain in Australia. He said he had previously been introduced to the Director of his sponsor, Mr Kim, while working at JFC. He indicated he set up a meeting between Mr Kim and the head manager of JFC which resulted in his sponsor being contracted to provide business services – drivers and warehouse workers - to JFC. When asked how many people worked for the sponsor, the applicant said that during busy times there are between 15 and 17 employees. When probed further about the organisation structure, the applicant indicated that there were currently two full time employees of the company – himself and another person named “Nicholas” – and about 9 part time or casual employees. He indicated to the Tribunal that “Nicholas” is responsible for “deliveries, the same as me”. When the Tribunal asked the applicant to clarify his current role, the applicant indicated that he makes timesheets, does deliveries when required, solves problems (for example when there are vehicle issues such as flat tyres), and “when someone wants to quit” organises interviews for new staff.
The applicant told the Tribunal that there was no Human Resources Manager working for the sponsor, before the nomination application was lodged. In response to the Tribunal’s question of why the position was created, the applicant indicated that the company needed at least one full-time person to handle “emergency situations” and “solve problems”.
When asked if anyone had filled the Transport Company Manager role he had previously performed for the sponsor, the applicant replied that if he has a day off, he usually contacts another staff member by text message to fill in for him. The applicant went on to clarify to the Tribunal that his duties and responsibilities had not changed since he commenced working for the sponsor in 2015.
The Tribunal indicated to the applicant that, on the basis of his oral evidence, it had concerns about whether he was in fact working as a Human Resources Manager as claimed. By way of response the applicant said he believed he was a Human Resources Manager because he is managing or controlling people, by hiring and training employees.
The Tribunal asked the applicant to describe his employment background and how he considers it to be relevant to the nominated occupation. The applicant indicated to the Tribunal that he has gained experience in employing personnel a company requires and then having them contribute to the business without any issues. He said he engages in person-to-person work, resolves issues between people, and leads or coaches the rules of a company. He indicated that he is experienced in managing employees, and in providing good customer service. He claimed this experience is relevant to the position of a Human Resources Manager.
The Tribunal invited the applicant to expand on how his experience was relevant to the nominated occupation. In doing so, the Tribunal noted its concerns that his duties as a Transport Company Manager as described in his resume (being primarily responsible for planning and implementing delivery schedules; being the lead for operational and business development; arranging driver route and delivery prioritisation for time sensitive deliveries; and supervising proper procedures regarding loading, unloading and storage of goods), and in the work reference prepared by Mr Kim in support of the application, appear to be very different to the tasks of a Human Resources Manager as described by ANZSCO. The applicant indicated that his sponsor provided a transport and delivery service, and so he had to organise things and manage all the issues up until goods had been delivered. He said he tries to engage good personnel and not create any issues with customer(s). He said it was his opinion that a Human Resources Manager is someone who recruits good people and manages them well so that the company can advance.
The Tribunal discussed with the applicant the ANZSCO description for the indicative skill level and the tasks of a Human Resources Manager, provided to the Tribunal by the representative. It noted that the ANZSCO indicates that a Human Resources Manager is a skill level 1 occupation. It also referred to the various tasks described in the description and explained that its questions related to those tasks. The Tribunal asked the applicant to describe the process he goes through to determine, implement, monitor, review and evaluate Human Resources management strategies. The applicant gave the following response. He indicated that in relation to an upcoming delivery he would organise a van and do his best to ensure there will be no issues. He indicated he arranges meetings with workers to discuss the quickest and most efficient way of loading and unloading goods. He said he employs additional workers during busy periods or if extra assistance is required to unload a container. He said he devises programs to avoid accidents related to long distance driving (for example, he arranges to alternate driving schedules to avoid driver fatigue). He said he resolves complaints related to delivery times.
The Tribunal asked the applicant to describe the last time he gave advice on recruitment, induction or training. The applicant replied that it was in the middle of August 2019. When asked to give more particulars, he indicated that at that time there were heavy goods that needed to be unloaded from a 20ft container to be ready for delivery the following day. To ensure the container was emptied in time with no issues, the applicant hired an extra person to assist with the unloading.
The Tribunal discussed with the applicant its concern that the description of his duties in his written and oral evidence suggest they are not at the level of complexity or variety as that of a Human Resources Manager. It asked if he had any comment to make about the concerns that his employment background might not be sufficient to perform the tasks of the nominated occupation. The applicant indicated that he did not understand why the Tribunal did not think he was good enough to perform the tasks of Human Resources Manager. He said he recruits and monitors company personnel and he has always done the work that the company has required him to do.
The Tribunal indicated to the applicant that it had concerns about the circumstances of his move to the role of Human Resources Manager with his sponsor in August 2017, which information had been provided in his written submissions to the Tribunal. It set out that it may consider the change of the applicant’s role from a Transport Company Manager to a Human Resources Manager when it became clear that the former nominated occupation was unlikely to succeed, and in respect of a very small business operation, was to secure a migration outcome, rather than to temporarily fill a short-term skill shortage which is the purpose of the Subclass 457 visa scheme. It also indicated that this information might make it doubt whether the applicant does actually possess the skills, qualification and employment background necessary to perform the tasks of a Human Resources Manager. The applicant commented that the purpose of the Subclass 457 visa is to bring skilled people to Australia. He told the Tribunal that he had been working to provide a service to JFC since 2011, and there were not many employees that had been working for the company longer than him. He indicated that given his association with JFC he could really contribute to the company and he thinks he is the most suitable person for the nominated role.
The applicant told the Tribunal that he has lived and worked in Australia for the last eight years. He indicated that he and his wife had welcomed a baby 3 weeks ago. He said he wants his baby to live here. He said it is not that easy to get a visa. He said he thinks he has worked enough to fulfil the Human Resources Manager role. He mentioned that he finds it difficult to give information because he is not a very eloquent speaker and finds it difficult to express himself. The Tribunal asked the applicant if he had had any problems understanding the Tribunal’s questions or speaking through the interpreter during the hearing. He replied that he found the hearing difficult because he was nervous.
The Tribunal took evidence from Mr Kim, the applicant’s sponsoring employer. He confirmed that he had met the applicant while he was working for JFC in about 2015. He told the Tribunal that Mr Grand Staff Pty Ltd, of which he is the owner and sole Director, had been established four or five years ago and that it operates to provide companies with drivers and warehouse workers.
When asked about the organisational structure of the business, Mr Kim indicated to the Tribunal that the applicant reported to him. However, the company had lost its contract with JFC in September 2019, so it was currently not operational and had no employees working for it. He went on to say, however, that he is also the owner of Machnational Pty Ltd, which is an associated entity of Mr Grand Staff Pty Ltd providing fabrication workers to companies in the South West of Western Australia. He said that the plan was for the applicant to start working as the Human Resources Manager for Machnational Pty Ltd when his paternity leave was over (after the Christmas period, in about mid to late January 2020), until Mr Grand Staff Pty Ltd was successful in obtaining another contract.
The Tribunal asked Mr Kim why the decision was made for Mr Grand Staff Pty Ltd to appoint and nominate a Human Resources Manager. Mr Kim told the Tribunal that the applicant had initially been engaged as a Transport Company Manager. However, he said that the law changed and because Mr Grand Staff Pty Ltd was a small company with a turnover of less than $1M it could not be successful with a Transport Company Manager nomination. Mr Kim said he does not know what a Human Resources Manager does, but he relied on the advice of a migration agent to lodge an application in respect of the new nominated position, because he really needed to retain the applicant to look after the business. The Tribunal raised its the concerns about the reasons for the new nominated occupation, and the fact that Mr Kim did not understand the difference between a Transport Company Manager and a Human Resources Manager, which are very different positions with different skill levels and duties. Mr Kim indicated that he did not think they were much different and that he thought he could give the applicant another position.
Mr Kim told the Tribunal that the applicant’s duties included creating driver lists, checking timesheets, overseeing leave arrangements, ensuring that the majority of their workers - who are working holiday visa holders - are complying with their visa conditions, and arranging leave times and come back times. He said that the applicant controls people and solves problems, and that these are the applicant’s most important duties for the company.
When the Tribunal indicated to Mr Kim that his description of duties did not appear to be at the level of complexity or variety as that carried out by a Human Resources Manager, he replied that he did not know exactly what to say and then repeated that he did not know what a Human Resources Manager does. He told the Tribunal that the applicant is doing what he has always done.
Mr Kim told the Tribunal that he really needs the applicant to continue working for him because he is good at finding and looking after staff. He urged the Tribunal to “give him a chance”.
The applicant was given the opportunity to comment on aspects of the evidence of Mr Kim, in particular that he was performing the same role that he had always performed. The applicant agreed he had been doing the same job since 2011.
The Tribunal received a written post-hearing submission from the applicant. The submission clarified that the sponsor has had one main client, Japan Foods Company Pty Ltd – a supplier of imported Asian foods in Perth. It is claimed that between 2015 and 2019 the sponsor provided business services to JFC Pty Ltd and the applicant had full control over hiring and management of staff in order to meet the commitment under the service contract.
It was submitted that the ANZSCO was not established to be a dictionary of occupations to supplement the delivery of the migration program and that there are often difficulties in relying on its occupation definitions where the nominating business is small and employees wear a variety of hats. It is submitted that the position of Transport Company Manager was determined at the time of application to be the most appropriate role of the applicant in the sponsor’s business. It is submitted that the ANZSCO definition of Transport Company Manager corresponds with the applicant’s position with the sponsor. The sponsor’s main client has always been JFC, and the service provided to JFC is the provision of staffing needed to run their warehouse and provide deliveries.
It is submitted that the applicant has been responsible for the day to day operations of the sponsor since it was established in 2015. It is submitted the nominated occupation was not created to secure a migration outcome, but came about as a result of the applicant’s own business acumen.
It is claimed that the best ANZSCO code to suit the position was determined by the sponsor and its migration agent. After receiving an email from the Department about new caveats in respect of the position of Transport Company Manager, it was decided that the position of Human Resources Manager would be applicable in the context of the sponsor and matched the applicant’s previous work experience in Korea as well as with the sponsor. It is submitted that the day to day tasks an employee undertakes in a small business can be varied and therefore multiple ANZSCO codes can be applicable to a single position.
It is submitted that the sponsor is a small operation, however, the ANZSCO does not preclude an occupation due to the size of a company. It is submitted that, as per the ANZSCO, the applicant determines, implements, monitors and reviews the human resources strategies, policies and plans to meet business needs. The submission highlighted the oral evidence the applicant had given at hearing to support the claim that the tasks the applicant has responsibility for match those that are set out in the ANSCO for a Human Resources Manager. In particular, he had given evidence that he ensured extra staff were provided to offload a large container; described measures taken when preparing drivers’ rosters to mitigate fatigue; and that he is the sole hirer of staff, determining the staffing levels needed to provide Mr Grand Staff Pty Ltd’s contractual services and to meet the needs of their client, JFC.
Assessment of the evidence
The Tribunal has concerns about the circumstances giving rise to the sponsor’s nomination application for a Human Resources Manager, as discussed with the applicant during the hearing. The evidence before the Tribunal is that the sponsor had initially lodged a nomination application for a Transport Company Manager in relation to the applicant. However, when it became clear that this nomination application would not be approved (because of recently imposed ‘inapplicability conditions’ attached to the occupation of Transport Company Manager), the sponsor withdrew its application, and then arranged for the applicant to sign a new contract appointing him to the position of a Human Resources Manager, before lodging another nomination application in relation to the new position. The Tribunal has also had regard to the evidence before it that Mr Grand Staff Pty Ltd is not currently operational, having lost its only contract (with JFC) in September 2019. The Tribunal is of the view that it appears the sponsor’s reason for the nomination was to secure a migration outcome for the applicant. It therefore has serious concerns about the genuineness of the position associated with the nominated occupation.
Notwithstanding these concerns, for the reasons that follow, the Tribunal is not satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Human Resources Manager.
The Tribunal has had regard to all of the written and oral evidence before it regarding the applicant’s skills, qualifications and work experience in considering whether the requirements of cl.457.223(4)(da) are met.
As discussed with the applicant at the hearing the Tribunal has some concerns as to the reliability of his written material. The information provided to the Tribunal, including his resume, states that the applicant was a Human Resources Manager for various broadcasting production companies in Korea between July 2006 and January 2008, June 2008 and December 2008 and October 2010 and March 2011 (a total period of about two and a half years). However, as discussed with the applicant during the hearing, he was young, unqualified and inexperienced while working at these companies. In addition, in his oral evidence the applicant generally described working in a small team of four people (amongst a number of other similar teams) to cast actors for roles and reporting to a manager. The Tribunal is of the view that the title of Human Resources Manager, as described in his resume and supporting submissions is not a genuine reflection of his duties and responsibilities at those broadcasting production companies.
The Tribunal also notes that when asked to describe why his experience working for the sponsor in Australia provides him with the employment background necessary to perform the tasks of Human Resources Manager, the applicant’s oral evidence was evasive, scant and unpersuasive. The Tribunal acknowledges the applicant was nervous during the hearing and this may have hindered his ability to give persuasive oral evidence. However, again, it has concerns that the written submissions and material provided to demonstrate that his employment experience provides him with the appropriate background to perform the duties of a Human Resources Manager may be somewhat embellished. For example, the applicant’s written submission describing the relevance of his work experience indicates that he determines, implements, monitors and reviews the human resource strategies, policies and plans to meet business needs. The Tribunal is not satisfied that the applicant’s work experience with the sponsor does in fact provide him with the background described. The Tribunal also notes that when it asked the applicant about his work experience relevant to describing the process he goes through to determine, implement, monitor, review and evaluate Human Resources management strategies, his oral evidence was scant and not reflective of a person with the relevant skills, qualifications and employment background to undertake that task. There are other examples where the written submissions indicate the applicant is responsible for particular duties, such as those set out in Mr Kim’s “Position Justification” document as well as in the annexure of applicant’s employment contract dated 15 August 2017. Yet, his oral evidence about these duties and responsibilities was lacking in detail and unpersuasive.

The applicant’ representative has argued that the Tribunal is not bound by the indicative skill level described in ANZSCO and has submitted that the applicant has over five years of relevant experience in an occupation relevant to the nominated position. The representative refers to the applicant’s role at the various talent companies as well as his role(s) with the sponsor to support this assertion. The Tribunal has already expressed its concerns that his written material is not a reliable reflection of the position he held at the talent agencies in Korea. In addition, the Tribunal is of the view that the applicant’s oral evidence regarding the duties he has undertaken so far in his employment with the sponsor are not at the level of complexity described in his written material. The Tribunal has concerns that his written material regarding the relevance of his employment background is not reliable and has been embellished.
The Tribunal has had regard to the description of a Human Resources Manager provided in ANZSCO. It states that Human Resources Managers plan, organise, direct, control and coordinate the human resource and workplace relations activities within organisations. The occupation falls within the unit group Human Resources Managers. The indicative skill level described in ANZSCO indicates that occupations in this group have a level of skill commensurate with a bachelor degree or higher qualification, or that at least five years of relevant experience may substitute for the former qualification. The occupation is described as being at skill level 1.
The applicant has given evidence that he does not hold a bachelor qualification. It has been submitted that his employment experience both in Korea and with the sponsor provides him with the skills, qualifications and employment background necessary to perform the duties of the nominated occupation. The Tribunal has taken into account the submissions from the representative that it does not have to find that the nominated occupation is a skill level 1 occupation. The Tribunal has considered the various tasks described in ANZSCO typically undertaken by Human Resources Managers. Having regard to the description of the occupation’s tasks the Tribunal is of the view that they are indicative of a skill level 1 occupation.
The Tribunal has considered whether it is satisfied that the applicant’s skills, qualifications and employment background are sufficient for him to perform the tasks of the nominated occupation. Having considered his oral evidence about his employment in Korea it is not satisfied this employment has given him an opportunity to develop skills relevant to the duties of Human Resources Manager. The Tribunal has considered his employment so far with the sponsor. It was the applicant’s evidence during the hearing (confirmed by Mr Kim in the evidence he gave) that he commenced working as a Transport Company Manager in 2015 and, that while he has been called a Human Resources Manager since August 2017, his duties and responsibilities have remained the same for the duration of his employment. The Tribunal notes that in a written submission to the Tribunal following the hearing the applicant’s representative does indicate that the position of Transport Company Manager most appropriately corresponds with the applicant’s position within the sponsors business. The ANZSCO describes the occupation of Transport Company Manager as organising and controlling the operations of an enterprise that operates a fleet of vehicles to transport goods and passengers. The occupation falls within the unit group Transport Service Managers, and is described as being at skill level 2. Given this, the Tribunal is of the view that the work the applicant describes as having undertaken for the sponsor is at a lower skill level than that of a skill level 1 occupation. Having considered the applicant’s employment background with the sponsor, the Tribunal is not satisfied his duties have been those of a Human Resources Manager or at the level of complexity of a Human Resources Manager as described in ANZSCO. While his employment may have some relevance to aspects of human resources – he may be good at recruiting and managing staff - the Tribunal is not satisfied that his employment has been sufficiently complex and varied, or at the requisite skill level, to develop his skills and provide him with the employment background and skills necessary to perform the tasks of a Human Resources Manager. The Tribunal is not satisfied the applicant has been undertaking the range of duties described in the written material provided in support of the review. In particular, it notes his oral evidence is not consistent with the responsibilities described in the submissions and supporting documents for the position of Human Resources Manager of Mr Grand Staff Pty Ltd. While the Tribunal accepts the employer is happy with the applicant’s performance and values his work, it is not satisfied this is sufficient experience and employment background to perform the complex tasks of a Human Resources Manager.
The Tribunal has considered the applicant’s evidence overall. However, it is not satisfied that the applicant’s skills, qualifications and employment background are sufficient for him to perform the tasks of the nominated occupation.
Given the above, the Tribunal is not satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the occupation of Human Resources Manager. For these reasons the applicant does not satisfy the requirements of cl.457.223(4)(da).
For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
The Tribunal also finds that the second named applicant does not meet the requirements of cl.457.321, because she is not a member of the family unit of a person who holds a Subclass 457 visa granted on the basis of satisfying the primary criteria. There is no claim or evidence that the second named applicant meets the criteria for the grant of a Subclass 457 visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Nicola Findson
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.

[2020] AATA 2702

26 June 2020

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Immigration

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