Starrs (Migration)

[2023] AATA 2214

Starrs (Migration) [2023] AATA 2214 (7 July 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Miss Emma Marie Starrs

CASE NUMBER:  2104307

HOME AFFAIRS REFERENCE(S):           BCC2020/1503310

MEMBER:  Alan McMurran

DATE:  7 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Statement made on 07 July 2023 at 12:58pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – advertising specialist – qualifications, employment background and skills necessary to perform nominated occupation – ANZSCO description and skill level – bachelor degree or five years’ relevant work experience – no appearance at hearing or other response – applicant has associate degree and intermittent work experience – not possible to determine on available information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363(1)
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212(3), (4)

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application lodged 6 April 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 18 March 2021 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).

1. The applicant, Miss Emma Marie Starrs, a citizen of the United Kingdom of Great Britain and Northern Ireland, applied for the visa on 7 May 2020. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage).

1. 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.

1. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Advertising Specialist (ANZSCO 225111). The nomination for the position by the nominator, Ferrycarrig Construction Pty Ltd, was approved by the Department on 30 July 2020. This review concerns only the related visa application for the occupation.

1. 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(3) of Schedule 2 to the Regulations because the applicant’s qualifications and skill level were not commensurate with the indicative skill level specified for the nominated occupation by ANZSCO. This was because the applicant did not have the requisite tertiary qualification, nor experience for the role being less than 5 years according to the submitted employment information.

No Hearing

1. On 20 June 2023, the applicant was sent an invitation from the Tribunal under s 359(2) of the Act to provide information and using the contact details for the applicant as recorded on the Tribunal’s file.

1. The letter invited the applicant to provide information concerning her skills, qualifications and work experience. The applicant was requested to reply by 4 July 2023. The letter informed the applicant that if the information was not received within the time for giving it, nor any extension of time granted, the applicant would lose any entitlement to appear in the Tribunal to give evidence and present arguments. The applicant did not respond within time, or at all. No request has been made for an extension of time to provide information.

1. The Tribunal is satisfied that the applicant has been notified in accordance with the contact details recorded on the application form lodged electronically and which remain unchanged. No Tribunal form has been lodged to record a change of contact details for this applicant. No communications have been received from or on behalf of the applicant since lodgement of her application, who is unrepresented for this review.

1. As the applicant has not responded to the Tribunal request for information before the time for giving the information had passed, s 359C applies and the Tribunal may make a decision

without taking any further action to obtain the information sought. Section 360(3) of the Act further mandates that the Tribunal has no power to permit the applicant to appear.1

1. The Tribunal has given consideration whether nonetheless in the exercise of its discretion it should defer further consideration of the review, although no such request has been made, and adjourn the review pursuant to s 363(1) of the Act.

1. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs2 and Manna v Minister for Immigration and Citizenship3, where the Courts have held that the Tribunal is not required to indefinitely defer its decision- making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li 4 regarding the issue of ‘reasonableness’ when considering an adjournment, and the Full Federal Court of Australia decision in Minister for Immigration and Border Protection v Singh 5 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection6.

1. The Tribunal is aware of its obligation to act reasonably and as the courts have emphasised, so as to balance the need for procedural fairness with the Tribunal’s objective to provide a mechanism for review that is fair, informal, just, economical and quick. The Tribunal has waited until 7 July 2023 to complete the review and has heard nothing further. The applicant has not provided any information to update her circumstances, explain why the delegate’s decision was wrong and should be set aside, and relative to the approved nomination in support of her visa application.

1. Considering the absence of such relevant information and where no attempt has been made to update the Tribunal since lodgement on 6 April 2021, and no adjournment has been sought, the Tribunal considers this is not a case where the exercise of a deferral discretion is warranted. The Tribunal instead has determined it should now complete this review, without further delay.

1. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

Applicant’s skills, qualifications and employment background

1. Clause 482.212(3) of Schedule 2 to the Regulations requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

1. In addition, under cl 482.212(4), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner

1 Hasran v MIAC [2010] FCAFC 40

2 [2002] FCA 617.
3 [2012] FMCA 28.
4 [2013] HCA 18 (8 May 2013).
5 [2014] FCAFC 1 (4 February 2014).
6 [2014] FCA 915 (28 August 2014).

specified by the Minister. In this case, no request has been made for the applicant to demonstrate that she has the required skills.

1. The applicant has provided with the information to the Department her resume, an employment contract, payslips from the nominator’s employment, work reference, academic transcript, nominator’s letter of offer made 4 August 2020, together with the application form which sets out the applicant’s work history. The Tribunal has had regard to the information available from the Department file and as supplied by the applicant herself.

The occupation

1. ANZSCO specifies the following in relation to the occupation: 2251 Advertising and Marketing Professionals:

   Advertising and Marketing Professionals develop and coordinate advertising strategies and campaigns, determine the market for new goods and services, and identify and develop market opportunities for new and existing goods and services.

Indicative Skill Level:

In Australia and New Zealand:

Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:

·planning, developing and organising advertising policies and campaigns to support sales objectives

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

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

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

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

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

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

·creating, scheduling and publishing marketing content to social media platforms and websites

·applying statistical modelling methods to determine the potential impact of pricing strategies on profitability

·monitoring performance of initiatives, providing regular reporting and insights as required

·analysing data from digital marketing campaigns and platforms

·recommending updates to digital content to improve search engine metrics

225111 Advertising Specialist

Alternative Titles:

·Advertising Account Executive

·Advertising Account Manager

·Creative Director (Advertising)

Devises and coordinates advertising campaigns which encourage consumers to purchase particular goods or services.

Skill Level: 1

1. As a Skill level 1 occupation, ANZSCO has determined that the nominated occupation in this case has the highest level of associated occupational skill. ANZSCO assigns occupations to one of five skill levels, based on researched industry advice. 7

1. The available evidence is that the applicant has an Associate Bachelor’s Degree, “Communications with advertising”, from the University of Ulster. A copy of the relevant academic record is submitted.

1. An ‘Associate Degree’ is described in the Australian Government website 8 as:

“ a short-cycle Degree program that can help with career development if you're already working and don't have time to complete a full Bachelor Degree. It can be a pathway to a Bachelor Degree or prepare you for an Advanced Diploma in specialist industry training. An Associate Degree will be about the basics or foundations of your field. It will cover the broad theory and enable you to develop the basic employment-related skills.”

1. The applicant’s qualification is not the level of a Bachelor Degree for the purpose of meeting the ANZSCO qualification required for the nominated occupation in this case. It is therefore necessary for the applicant to meet the alternative requirement of at least 5 years’ relevant experience to substitute for the formal qualification.

1. The Tribunal has considered the applicant’s student and work experience, as set out in her resume available from the Department file. It shows the following:

a.Sep 2014-July 2017 – completing university education for Associate degree;

b.Dec 2015-May 2018 – work experience in Ireland with Omagh District Council and Tyrone Constitution Newspaper, some of which was completed while still a student and is considered PT employment;

c.Arrived Australia – 1 June 2018;

d.Sep-Dec 2018 – Farm work;

e.2018-2019 – Traffic control (Retro and ETM Traffic);

f.Nov 2019-May 2020 - Ferrycarrig Construction Pty Ltd (nominator);

1. The Tribunal notes that despite the AAT information request, there is nothing from the applicant to update her current circumstances at the time of decision. As noted in the delegate’s decision, the employment evidence submitted with three payslips for a period from February 2020 to March 2020 does not indicate that the employment was full time and at a rate of salary, approximately $54,000 per annum or equivalent, commensurate with the role. Industry information indicates that full time salaries for the role are between $66,000 upwards to $98,000 with an average around $81,000 per annum9.

1. The available information shows that from December 2015 to May 2018, the majority of that period included the applicant’s university course and was not full time. Part time employment under policy should not be considered as meeting the work experience required for a full time occupation in a Skilled (Level 1) role. The applicant had no relevant experience from

7 See “ANZSCO - Australian and New Zealand Standard Classification of Occupations Reference period 2022” on its website

8 [Advertising Specialist Salary in Australia | Salary.com]

June 2018 to November 2019. The applicant’s work history from November 2019 to May 2020 is of short duration over a 6 month period, and there is no available information submitted since then.

1. The Tribunal finds on the available information that it is not possible to determine the employment of the applicant as specified for the occupation, and for a period of at least 5 years full time in the role or relevant related employment, by completing a majority of the tasks for the role as specified.

1. The Tribunal finds therefore that the applicant does not meet the requirement and does not have the skills, qualifications and employment background necessary to perform the tasks.

1. For these reasons the applicant does not meet the requirements of cl 482.212(3).

1. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

DECISION

1. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Alan McMurran Member