TAN (Migration)

TAN (Migration) [2017] AATA 2918 (7 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Chin Hui TAN
CASE NUMBER:  1602824
DIBP REFERENCE(S):  BCC2015/15159
MEMBER:Alan McMurran
DATE:7 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Statement made on 07 December 2017 at 4:17pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Requisite skills, qualification and experience for position of Marketing Specialist – Sponsor reorganising its business into a new entity – New nomination requested – No formal qualifications in marketing – Review of applicant’s previous roles
LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, Schedule 2 cl 457.223, r 2.75
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 3 January 2015.
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 visa on 17 February 2016 on the basis that cl.457.223(4)(da) was not met because the applicant has not demonstrated that she has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Marketing Specialist.
The applicant appeared before the Tribunal on 20 November 2017 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent, but who did not appear at the hearing in order to save cost.
Background - Sponsorship
The applicant is a citizen of Malaysia who came to Australia in or about June 2014 and was granted a visitor visa before making application for a 457 visa on 3 January 2015. The applicant was nominated for the position of marketing specialist (ANZSCO 225113) by a standard business sponsor, Austra Construction Pty Ltd, ACN 132071964 (the sponsor).
Cl.457.223(4) sets out a 3 step process whereby:
·Firstly there is a nomination of an occupation in relation to the application which has been approved under section 140 GB of the Act;
·Secondly, the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and
·Thirdly, the approval of the nomination has not ceased as provided for in regulation 2.75, and the nominee applies for the (457) visa.
The Tribunal finds that the sponsor obtained an agreement for its sponsorship on 19 March 2015 expiring on 19 March 2018, and that the sponsor obtained an approved nomination for the occupation. The nomination of the applicant initially expired and was renewed for the period from 14 November 2017 for a period of 12 months until 14 November 2018.
On 17 November 2017, the Tribunal was informed by the representative for the applicant “that the construction company sponsor was reorganising its business into a new entity”[1]. The representative went on to explain by email that the sponsor was now using a new company for its construction business and will be making a new sponsorship application/nomination application for the applicant as nominee. Details of the application were not available for the hearing but the representative requested an extension of 14 days to enable time for the lodgement of a new sponsorship application.
[1] T file F 86
As set out below, the Tribunal agreed to grant the extension sought. The applicant’s representative was requested to provide any information and/or response to the Tribunal on or before Monday, 4 December 2017. The Tribunal went on to consider the issue before it concerning the refusal by the Department to grant the application, based on the failure by the applicant to satisfy the Department that she had the necessary skills, qualification and experience to perform the role of marketing specialist.
The Tribunal notes that it did not receive any further submissions, documents or information from the applicant or the representative on or before Monday, 4 December 2017. No further extension has been sought
Marketing Specialist
The role of marketing specialist is determined by ANZSCO to be skill level I, which skill level is commensurate with a bachelor degree or higher qualification. At least 5 years of relevant experience may substitute for the formal qualification including in some instances, relevant experience or on the job training in addition to formal qualification. The applicant confirmed and the Tribunal finds that the applicant does not have any formal training commensurate with a bachelor degree or higher qualification.
The occupation of marketing specialist is an occupation specified in the current instrument, IMMI 17/060, and which has attached to it the following caveats (or conditions):
·that the position offered has a nominated base salary of not less than $65,000;
·that the position is not based in a front line retail setting or predominantly involving direct client transactional interaction on a regular basis; and
·the position is in a business that has an annual turnover of greater than $1 million.
The Department has set out guidelines in relation to the occupation of marketing specialist which note that in the context of this particular occupation, the skilled visa program is intended to be used for highly skilled and specialised marketing positions that will make strategic contributions to the nominating business.[2] It states that positions that involve regular contact with individual clients either in person, online or over the phone to sell or promote products would be considered to be involved in direct client transactional interaction and may be excluded by the caveat.
[2] See DIBP Interim guidelines on occupational caveats at p12
ANZSCO is a useful guide to the description of the occupation and the tasks and responsibilities. It sets out that in relation to a marketing specialist, such occupation involves identifying market opportunities and advising on development, coordination and implementation of plans for pricing and promoting an organisation’s goods and services. Tasks include, in brief:
·planning, developing and organising advertising policies and campaigns to support sales objectives
·advising executives and clients on advertising strategies and campaigns
·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
·analysing data for patterns and preferences
·interpreting and predicting consumer trends
·researching potential demand and market characteristics and collecting and analysing data
·supporting business growth and development through preparation and execution of marketing objectives, policies and programs
·commissioning and undertaking market research
·advising on all elements of marketing such as pricing advertising and sales promotion
In approaching this review, the Tribunal had in mind the tasks of the nominated occupation as set out above from ANZSCO, and taking into account the information available concerning the applicant’s background, qualifications and experience, and whether that level of experience was commensurate with at least 5 years’ relevant experience and might substitute for the lack of any formal qualifications in marketing, which the applicant had conceded she does not hold. The Tribunal heard extensively from the applicant in her oral evidence at the hearing.
The Tribunal also had before it the Department’s file BCC 2015/15159 and the Tribunal’s file. The Department file included a copy of the application made 3 January 2015, and the Department decision made by the delegate on 17 February 2016.
The Department file included information from 3 prior employers of the applicant:
·Nippon Pigment
·House Pack Marketing and
·Four Da Trading,
concerning the applicant’s prior employment, skills and experience. The file also contained the applicant’s resume. The applicant gave evidence at the hearing that she had completed high school in about 1994 and attempted a computer course which she did not complete. The applicant at the time was resident in Penang, living with her family. The applicant had no other formal training and commenced employment at Nippon Pigment in her first job in 1995.
Skills, Qualifications and Experience
The applicant has no formal qualifications since leaving High School, and must rely upon her job experience in the various roles she has held over 19 years in the workforce in Malaysia. Such experience must be “relevant”, and equate to at least 5 years in total as experience necessary for a “marketing specialist”.
The applicant said that all 3 companies listed above in which she worked were Malaysian companies. The applicant described her role in each, variously, as follows:
Nippon Pigment
The applicant was employed by this company as a sales representative from June 1995 to July 2008[3]. A letter from that company refers to the applicant securing orders directly from clients/customers, and making in person visits and telephone calls as well as presentations. The applicant also prepared sales reports on a monthly basis and reported to the sales manager. The applicant said the company employed approximately 100 people, most of them in process work and with approximately 10 in sales. The applicant said she received some on-the-job training and the work involved predominantly direct client contact. The applicant said she also dealt with customer complaints, but had no marketing involvement and was not aware of any marketing campaigns. The applicant said that the company was a manufacturer which dealt specifically with Japanese companies, and she named one of them as Toray Plastics. The applicant was unable to remember any other particular customers but said they also sold to local Malaysian companies.
House Pack Marketing
The applicant said that her role in this employment was also dealing principally with customers, including attending trade shows and manning a booth for the employer. She stated that she attended 3 or 4 tradeshows in the 2 years she was in this employment. The Tribunal asked many questions about what was involved in the role and whether it included any marketing or advertising. The applicant said that they produced some leaflets which were done by another designer, used to promote the tradeshows and products. The applicant said the data analysis done by her involved examining figures from the tradeshows. The applicant said this company was smaller than her previous employment with about 30 staff in all.
Four Da Trading
The applicant worked in this company for approximately 3 years in a similar role to her previous employment. She thought there were about 20 staff in all, and that she was principally engaged on the management and administration side, supervising staff and assisting the manager. The applicant said she would spend most of her day visiting customers (around 5 to 6 hours per day) and in direct client contact. She dealt with customer complaints and ordering, and reported to the general manager.
[3] DIBP F 22
The applicant was asked extensively about whether any of the roles previously held by her involved preparing advertising campaigns, copywriting, dealing with media such as television or radio, and any publications. The Tribunal explained to the applicant the sort of tasks expected for a marketing specialist, and that it was a high-end activity. When asked what she understood about the role, the applicant said she thought it meant dealing directly with clients, following up complaints, finding new clients and promoting the product. The applicant however was unable to identify specifically what work would be involved in promoting product other than through direct client contact. The Tribunal finds that in describing the role of marketing specialist, the applicant has referred principally to the tasks she was performing in her administration and client management roles in Malaysia. The Tribunal finds that on the applicant’s evidence, none of those roles involved direct experience with marketing campaigns or advertising.
The applicant was asked about the proposed role with the sponsor. The applicant said that she had not discussed it directly with the owner of the business Mr Yang Cheng Zhao (the owner) as she was not yet working there. She said that she had first met the owner in about 2008 when visiting Australia. She had met the owner again in about 2015 when he invited her to work in his business. She said she had been introduced to him through a friend of her and her husband’s.
The applicant was asked about her family and she said that she was married and that her husband conducted a marketing company as Managing Director in Kuala Lumpur. She said her husband was living in Malaysia and had not offered her employment, although the applicant said she was hopeful of bringing her husband’s business to Australia. The Tribunal asked why she would not work in her husband’s marketing business, and she said that she preferred to gain experience in Australia which was a “better place” and that she wanted to improve her skills and be able to stay here.
The applicant said that she thought her experience working in administration and helping to manage factories in Malaysia would help her in learning and acquiring marketing skills. She said she has no plans to undertake any formal training in Australia but rather by learning on the job in her role.
The applicant said the sponsor is in construction and she expects to be involved analysing data, providing reports to the owner, dealing with troubleshooting with customers and complaints and follow-up as well as locating new clients, principally developers, for new projects for the sponsor. The Tribunal asked what specific marketing programs she anticipated being involved in and the applicant said she could not know as she had not yet started the job and had not discussed it with the owner.
The Tribunal asked the applicant about what she understood being a marketing specialist meant and she stated that she thought it did not involve just doing marketing, but in her role with the sponsor would involve coordination with project managers, administration and dealing with problems with staff as well as communicating with clients. When asked about her English, in dealing with Australian clients, she said that she spoke in English when required to do so, but spoke in Mandarin with the owner and staff in the business.
The applicant said that she thought that marketing in Australia was “more aggressive” but was unable to explain exactly what she meant by that expression. She thought however it was different to what she had experienced in Malaysia. She said things are done “differently here” but she was not able to articulate the differences given that she has not worked in Australia, and has not worked since she left her employment at Four Da Trading in 2014.
The Tribunal asked whether the applicant had undertaken any training since her last employment in 2014, but the applicant said that since filing the application for her 457 visa in January 2015, she was awaiting the outcome of the substantive application and decision process, currently residing here on a Bridging Visa.
For the following reasons, the Tribunal has concluded that the 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), that the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation (as set out above).
The Tribunal has paid careful regard to the oral evidence as set out above received at the hearing and the information provided in the Department’s file and the Tribunal’s file. That information includes:
·the delegate’s decision;
·the proposed contract with the sponsor dated 30 October 2017;
·the approval of the nomination for marketing specialist approved first approved 19 March 2015;
·the applicant’s Malaysian evidence including photographs of her working at House Pack Marketing, certifications as translated from the Companies Commission of Malaysia, a letter from each of the employers including an organisation chart from Four Da Trading;
·letter from the sponsor dated 30 October 2017 supporting the role and stating that “we have decided to create a new role for someone who can focus on client account management and also marketing tasks and promotions as well”.[4]
·Copy of a receipt for renewed nomination application made 14 November 2017;
·submission from the representative, Victor Ke, dated 11 November 2017;
·email dated 17 November 2017 received at 6:09 PM from Mr Ke.
[4] T f 46
The Tribunal explained at the hearing to the applicant that the function of the review of the decision was to consider the tasks required for the occupation of marketing specialist, and whether the skills, experience and qualification of the applicant, obtained entirely on the job in her previous roles may substitute for the lack of formal qualifications and which was sufficient to equate to at least 5 years of relevant experience in total.
The Tribunal finds that the applicant has worked since leaving high school for a continuous period from 1995 until 2014 when she left her last employ. The applicant has spent those 19 years in 3 different companies as set out above. The task for the Tribunal was to review the work done by the applicant in those roles and whether all or any of that experience would be commensurate with or the equivalent of the tasks and nature of work to be undertaken by a marketing specialist. The Tribunal finds that the applicant has not worked since about June 2014, and has undertaken no marketing training or activities in Australia.
The Tribunal finds that the applicant is to be engaged by the sponsor having been located by word-of-mouth and through mutual friends of the owner. The position was not advertised and there is no evidence before the Tribunal of what steps if any were taken by the sponsor to specifically find a marketing specialist. The Tribunal finds on the applicant’s evidence and by reference to the letter from the sponsor dated 30 October 2017, the sponsor is looking primarily for an employee who can focus on account management as well as marketing tasks and promotion. The details of those tasks and promotion are not provided and it is clear on the evidence that no such position currently exists with the sponsor.
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 addition, under cl.457.223(4)(e), 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 specified by the Minister. The nominated occupation is marketing specialist.

The applicant has explained her background with her 3 previous employers where she was responsible for reporting to managers and business owners, and for dealing primarily with customers and client complaints. In her last role, the applicant said she spent 5 or 6 hours per day visiting clients and customers of the business. The applicant has said she has no experience at all in any formal marketing campaign involving copywriting, media strategies, radio or television or other publications, other than pamphlets prepared by others. She has stated that things are done differently in Australia and that she will have to learn the role on-the-job. The applicant said that she does not understand what the role will entail until she commences work. She said she has not discussed any details with the business owner.
The Tribunal finds that the applicant’s experience is not commensurate with that of a highly specialised or trained marketing specialist. The applicant’s experience is aligned with that of an administration manager where she was assisting the business owner in each case running a small factory, whilst also performing a customer service role looking after clients and managing complaints. The applicant’s initial employment experience over a period of approximately 13 years was essentially a retail role, where the applicant states she was working primarily in sales and dealing directly with customers.
The Tribunal finds that this experience is not relevant to that of a marketing specialist whose tasks and obligations are set out above and are sophisticated and focused on advertising and campaign marketing. There is no evidence provided of the size and scope of the operation of the sponsor which might require or benefit from training the applicant to become a marketing specialist. The applicant stated the sponsor has approximately 3 or 4 people working in its office and a number of contractors. The applicant had been to the office of the sponsor several times, but not to work and did not provide details of any information concerning current or existing marketing by the sponsor. As explained by the applicant, this is something she will have to learn once she commences employment.
In nominating the occupation of a marketing specialist, it is anticipated the position actually exists[5] and that it is appropriate for the Tribunal to have regard to an assessment of what was in fact done by the applicant in terms of her prior experiences, and what she may be asked to do in her new role. In that role, it is expected that the applicant will be fully engaged in a highly skilled and specialised position making strategic contributions to the business and not engaged simply in retail operations or direct customer liaison, managing accounts and complaints. The tasks and experience of the applicant as described in her evidence are not the majority of the tasks set out in ANZSCO above of a marketing specialist.
[5] See Cargo First Pty Ltd v MIBP [2016] FCA 30; 242 FCR 87; 149 ALD 634
The Tribunal finds that on the evidence of the applicant and from the sponsor’s letter, the position described by the applicant is more that of an administration manager or account manager than a marketing specialist. Such a description aligns more with the applicant’s experience in dealing directly with customers and administration on behalf of business owners and reporting to them, with no extensive or prior involvement in marketing campaigns of the nature, style and composition anticipated by ANZSCO.
The applicant has candidly explained her previous roles, which do not illustrate any experience of any substantial kind involved in marketing, and not at Skill Level I where the applicant is expected to be involved in developing and coordinating advertising strategies and campaigns, and in respect of none of which the applicant has previous experience.
At the hearing, the Tribunal expressed its concerns that the applicant’s prior experience in administration and customer management may not be relevant to the occupation of a marketing specialist and that the applicant had no experience in creative advertising campaigns. The applicant was asked if she had any comment in that regard and who indicated that she did not wish to do so.
The applicant was asked about her recent communications with Mr Zhao and whether she had had any recent conversations with him about the position, and who had informed her she may now be working with someone else. The applicant was unable to elaborate on any details, not having been informed of any by the sponsor.
In all the circumstances and having regard to all of the above, the Tribunal finds that it is not satisfied the applicant has the necessary skills, qualifications and experience for the occupation of marketing specialist, and that the applicant’s principal experience is in administration and customer management, not advertising or promotion..
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.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Alan McMurran
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.

[2017] AATA 2918

7 December 2017

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