Liu (Migration)

[2023] AATA 800

Liu (Migration) [2023] AATA 800 (4 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Man Yee Liu

REPRESENTATIVE:  Mr Garry Frederick Howard (MARN: 9804095)

CASE NUMBER:  1925271

HOME AFFAIRS REFERENCE(S):          BCC2019/707530

MEMBER:Warren Stooke AM

DATE:4 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482. 212 of Schedule 2 to the Regulations; and

·cl 482. 312 of Schedule 2 to the Regulations.

Statement made on 4 April 2023 at 3.02pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – retail buyer/merchandising planner – approved standard business sponsor – refusal of related position nomination set aside on review – tasks of position and applicant’s work history – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(1)

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 Home Affairs on 4 September 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 July 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Retail Buyer – ANZSCO Code: 639211.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the nominee did not have an approved standard business sponsor.

4. The applicant appeared before the Tribunal on 30 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sally Lau, Director of Red Dollar Staff Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has an approved standard business sponsor for the nominated position of Retail Buyer – ANZSCO Code: 639211.

8. The applicant provided evidence of health insurance with BUPA from 7 September 2015.

9. The applicant was granted a Bridging Visa B on 1 August 2019 that allows multiple entries subject to an 8107 work limitation and that the applicant must arrive by 14 November 2019.

10. The applicant stated that she has a salary of in excess of $80,000 plus and was employed on a contract of employment, full-time in the position of Merchandise Planner on 1 July 2019.

11. The applicant provided a resume that included the following information for her current position as a Merchandising Planner:

    - Summarizing sales and stock data, categorizing demand and supply patterns

    - Studying and researching information on international manufacturers, festivals and popular products, and comparing costs with current production cost, in order to explore potential sale opportunities

    - Designing and helping implement marketing promotion, updating online ordering system.

    - Negotiating with foreign suppliers and manufacturers regarding purchases, promotions, sales and other related matters

    - Preparing and forecasts and budget, and making seasonal promotions.

    - Providing out-of-box strategic thinking, in charge of outsourcing products in order to reduce costs while remaining high quality.

    - Inspecting products purchased and conducting random stock inspections by visiting Red Dollar stores, auditing stores’ stocks, sales and purchases every quarter

    - Liaising at departmental levels, ensuring effective and efficient collaboration between stores, and co- plan business’s long term marketing/ sales strategies with management

    - Establishing new relationship with suppliers and maintain existing ones. Receiving and checking samples and trail products.

    - Preparing weekly/ monthly plans on sales, purchases, stock levels and inventory for each store

    - Managing allocation of merchandises based on company’s target and budget and preparing consolidated weekly report

    - Lead the planning and strategic team, minimizing risks/mistakes and maximizing business opportunities and efficiency in the whole merchandising planning cycle

    JOB duties as a Merchandiser

    - Conduct seasonal forecasts and anticipate the products trend.

    - Communicating with overseas buyers and factories

    - Purchasing sample products based on the quality, trend, style & color.

    - Managing planning and buying strategies on variety of products.

    - Analyse sales and stock figures at store level

    - Review stock levels and assist with store budget forecasts

    - Manage the allocation of merchandise based on planned sales and inventory

    - Prepare weekly merchandise reports

    - Maximise opportunities & minimise risk across the planning cycle

    - Monitor and conduct consistent market/competitor research

    - Work with the buying and production teams regarding stock levels

    - Bulk inspection if have any problems

12. The applicant provided evidence that she was educated at the Hong Kong Polytechnic University and completed a Fashion and Textile Merchandising qualification.

    Evidence of Ms Sally Lau – Director of Red Dollar Staff Pty Ltd

13. The nominating sponsor provided evidence that the business was registered with ASIC on 26 February 2015 and assigned ABN 14 604 456 049. The nominating sponsor, who is a Director and has oversight of the business, stated that the business in 2007 formerly had another partner and the scope included 14 stores prior to a separation of the assets and \stores.

14. The nominating sponsor stated in the application that Red Dollar company is a group of 7 chain stores and that the position of retail buyer serves for the group instead of just for one store. The position doesn't involve any direct client transactional interaction and it is not in the front-line retail setting. The Merchandising Planner is responsible for supplier issues and managing trends.

15. The nominating sponsor stated that the business has variety stores and caters for seasonal events as well as everyday products.

16. The nominating sponsor stated that the business currently has 31 to 35 employees due to seasonal periods, who are covered by the Retail Award and that employees were provided with a Fair Work Information Statement at the commencement of employment.

17. The nominating sponsor provided evidence of an Organisational Chart, where the nominated position of Merchandise Planner reports to the business Owner/Director within the independent head office from the 7 retail stores and is a full-time position on a current salary of $85,000. The application from the nominating sponsor identified that the organisation had 11 Australian Citizens; 27 Visa holders.

18. The nominating sponsor provided evidence of a contract of employment with the nominee for the position of Merchandise Planner dated 1 July 2019 on a full-time basis and that contributions are made to Rest Superannuation.

19. The nominating sponsor stated that the position required a person with experience and knowledge of the industry and that the applicant had joined the business in 2015 as a part-time employee, as an Assistant Supervisor.

20. The nominating sponsor provided evidence of job advertising for the nominated position through Zeolla Solutions for 4 weeks from 22 May 2019 with Seek; Indeed and Job Active.

21. The nominating sponsor stated in the application, for the nominated position of Merchandise Planner, that the duties include the following:

    “Studying and researching information on international
    manufacturers, Chinese festivals and popular products, and
    comparing costs with current production cost, in order to explore
    potential sale opportunities.

    Designing and helping implement marketing promotion, updating
    the online ordering system, translating details into Chinese.
    Negotiating with foreign suppliers and manufacturers regarding
    purchases, promotions, sales and other related matters.
    Preparing and forecasts and budget, and making seasonal
    presentations on regional and overall products trend.

    Nomination for a Temporary Skill Shortage Visa
    Providing out-of-box strategic thinking, in charge of outsourcing
    some of the company's services in order to prioritize efficiency
    and reduce costs while remaining high-quality services.
    Liaising at departmental levels, ensuring effective and efficient
    collaboration between stores, and co-plan business's long term
    marketing/ sales strategies with management

    Main tasks:

    ·Summarizing sales and stock data, categorizing demand and

    supply patterns.

    ·Inspecting products purchased and conducting random stock

    ·inspections by visiting Red Dollar stores, auditing stores' stocks,

    sales and purchases every quarter.

    ·Review stores' performance and overseeing the implementation

    of motivation plans for improving their performance.

    ·Establishing new relationship with suppliers, customers and

    other business stakeholders, especially overseas. Has abilities to
    hold exhibition, conferences and alike upon request.

    ·Maintaining existing relationship with suppliers, customers and

    other business stakeholders.

    ·Preparing weekly/ monthly reports on sales, purchases, stock

    levels and inventory for each store.

    ·Preparing seasonal peer reports and making necessary changes

    according to market conditions and competitions

    ·Managing allocation of merchandises based on. company's target

    and budget and preparing consolidated weekly report.

    ·Meeting with management and may be required to travel for

    conferences if required.

    ·Lead the planning and strategic team, minimizing risks and

    mistakes and maximizing business opportunities and efficiency

    in the whole merchandising planning cycle.”

    22.      In addition, the nominating sponsor provided confirmation of the main duties of the applicant to the Tribunal, at hearing, that coincided with the duties identified in ANZSCO Code: 639211 for a Merchandising Planner, that included the following duties outlined in the ANZSCO descriptor:

    ·monitoring sales data and stock levels, and studying trade, manufacturers' and market information to keep informed of changing market conditions (including trends and especially buying in bulk)

    ·negotiating purchase, promotion and supply arrangements with suppliers (especially buying in bulk)

    ·designing and implementing pricing, marketing, promotional and display strategies (pricing for individual stores)

    ·liaising with management on long-term planning and sales promotions

    ·establishing working plans according to seasonal and budgetary requirements (where the budget is provided by the director)

    ·anticipating consumer trends and determining quantity, style and quality of goods to be purchased

    23.      The nominating sponsor provided evidence that the applicant had undertaken an IELTS English language test with an overall score of 5.5.

    Requirement for an approved nomination

22. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval, and has not ceased.

23. The Tribunal on 4 April 2023 in Case Matter 1923294 approved the nominated application for the position of Retail Buyer – ANZSCO Code: 639211.

24. For these reasons the requirements of cl 482.212(1) are met.

    Requirement to have worked for at least 2 years

25. Clause 482.221 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years.

26. The nominating sponsor provided the applicant with a contract of employment signed on 1 July 2019, that proves for minimum employment of 4 years.

27. For these reasons, cl 482.221 is met.

    Genuine short term applicant

28. Clause 482.222 requires as follows:

    The applicant is a genuine applicant for entry and stay as a short term visa holder because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)       the applicant’s circumstances; and

    (ii)      the applicant’s immigration history; and

    (iii)     any other relevant matter; and

    (b)the applicant intends to comply with any conditions to which the visa is subject, having regard to:

    (i)       the applicant’s record of compliance with any condition to which a visa previously held by the applicant (if any) was subject; and

    (ii)      the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant genuinely intend to stay temporarily?

29. For the applicant to meet cl 482.222(a), the Tribunal must be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to the applicant’s circumstances and immigration history, and any other relevant matter.

30. There is no evidence before the Tribunal currently that the applicant does not intend genuinely to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matter.

31. For these reasons, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore, the applicant meets cl 482.222(a).

    Does the applicant intend to comply with visa conditions?

32. For the applicant to meet cl 482.222(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions to which the visa is subject, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

33. A visa granted to an applicant who meets the primary criteria must have condition 8607 imposed: cl 482.611. Condition 8607 essentially requires the visa holder to work only in their nominated occupation and for certain businesses, meet mandatory licensing requirements, and to commence work within 90 days and not cease employment for more than 60 days. Condition 8501 (health insurance) must also be imposed, and condition 8303 (no involvement in disruptive activities/ threatening violence towards Australian community) may be imposed: cl 482.612 and cl 482.613.

34. The Tribunal is satisfied that the applicant will work in Red Dollar Staff Pty Ltd during the term of a 482 Short term visa, having complied with the condition attached to her current Bridging Visa B since 1 August 2019.

35. For these reasons, the Tribunal is satisfied that the applicant intends to comply with the conditions to which the visa is subject. Therefore, the applicant meets cl 482.222(b).

    Is the applicant a genuine applicant for entry and stay as a short term visa holder because of any other relevant matter?

36. For the applicant to meet cl 482.222(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a short term visa holder because of any other relevant matter (in addition to the requirements in cls 482.222(a) and (b)).

37. There is no evidence before the Tribunal currently that the applicant does not intend genuinely to stay in Australia temporarily, having regard to their circumstances, immigration history, and any other relevant matter.

38. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a short term visa holder as required by cl 482.222.

    English language proficiency

39. Clause 482.223(1) requires the applicant to satisfy any language test requirements specified for the applicant in an instrument. Clause 482.223(2), which enables the Minister to require the applicant to demonstrate their English language proficiency in a specified manner, does not apply in this case.

40. The relevant instrument for cl 482.223(1) is IMMI 18/013. This instrument sets out the English language test requirements, as well as applicants who are exempt from these requirements.

41. The Tribunal is satisfied that the applicant with a IELTS overall score of 5.5 exceeds the minimum requirement of an overall score of 5.0 in IMMI 18/013.

42. For these reasons, the applicant meets the requirements of cl 482.223.

    Requirements relating to employment in the nominated occupation and position

43. Clause 482.224 requires that either the applicant’s nominated occupation is specified in an instrument, or that the applicant is employed to work in the nominated occupation. In the latter case, the employment must be in a position in the sponsor’s business or in an associated entity’s business. The applicant may only be employed in an associated entity if, at the time the nomination was approved, the sponsor was not an overseas business sponsor.

44. The Tribunal is satisfied that the nominated occupation of Retail Buyer – ANZSCO Code: 639611 is included in the Temporary Short Skill list (Item 242) in the current IMMI instrument and that the applicant is employed to work in a position in the sponsor’s business.

45. For these reasons the requirements of cl 482.224 are met.

46. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

47. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482. 212 of Schedule 2 to the Regulations; and

    ·cl 482.312 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member