Vermaak (Migration)

[2020] AATA 4900

Vermaak (Migration) [2020] AATA 4900 (23 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jeanetta Vermaak
Mr Jaun Vermaak
Miss Monique Venter

CASE NUMBER:  1807383

DIBP REFERENCE(S):  BCC2016/3007742

MEMBER:Marten Kennedy

DATE:23 November 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 23 November 2020 at 4:16pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Supply and Distribution Manager – necessary skills, qualifications and experience – Sub-Major Group 13, Specialist Managers – at least five years of relevant experience required – tasks associated with previous roles – wholesale manager – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

1. 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).

2. The visa applicants applied for the visa on 9 September 2016.

3. 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.

4. The delegate refused to grant the visas on 9 March 2018 on the basis that cl.457.223(4)(da) was not satisfied.  This criterion requires that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

5. In this case, the nominated occupation is ANZSCO 133661 Supply and Distribution Manager.  The delegate considered that the primary visa applicant had not demonstrated that she had  the level of qualifications or experience specified in ANZSCO required to perform that occupation having regard to the requirements of ANZSCO and the applicant’s evidence of her work experience.

6. The applicant appeared before the Tribunal on 23 November 2020 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

   CONSIDERATION

8. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(da). Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

9. I have taken into account, as did the delegate, the provisions of ANZSCO as to what skills, qualifications and experience is generally required to perform the tasks of the occupation of a Supply and Distribution Manager in Australia.  In this regard, ANZSCO places the occupation in Sub-Major Group 13, Specialist Managers.  It provides that most occupations in the unit group of Supply, Distribution and Procurement Managers have a level of skill commensurate with tertiary qualifications of a bachelor’s degree or higher.  Having regard to the tasks associated with the position, I would interpret this to mean that a person undertaking the role might typically have a degree in accounting, commerce, finance or business administration.

10. ANZSCO however also provides that at least five years of relevant experience may substitute for the formal qualification.

11. The applicant does not hold bachelor level qualifications.  It is therefore necessary to assess whether she has at least five years of relevant experience or on the job training that can be viewed as a substitute.

12. In assessing whether the applicant’s work experience and on the job training may serve as a substitute to demonstrate the necessary skills, I have considered the specific information provided in ANZSCO as to the tasks of the unit group.  I have also noted as an aid to understanding the nature of the occupation that particular specialisations are identified by ANZSCO pertaining to logistics managers and in particular military officers with particular responsibilities for logistics and supply:

    UNIT GROUP 1336 SUPPLY, DISTRIBUTION AND PROCUREMENT MANAGERS

    SUPPLY, DISTRIBUTION AND PROCUREMENT MANAGERS plan, organise, direct, control and coordinate the supply, storage and distribution of goods, products and services produced and used by organisations.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor’s 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:

    a.determining, implementing and monitoring purchasing, storage and distribution strategies, policies and plans

    b.preparing and implementing plans to maintain required stock levels at minimum cost

    c.negotiating contracts with suppliers to meet quality, cost and delivery requirements

    d.monitoring and reviewing storage and inventory systems to meet supply requirements and control stock levels

    e.operating recording systems to track all movements of supplies and finished goods, and ensuring re-ordering and re-stocking at optimal times

    f.liaising with other departments and customers concerning requirements for outward goods and associated forwarding transportation

    g.overseeing the recording of purchase, storage and distribution transactions

    h.directing staff activities and monitoring their performance

    i.provision of products and services to meet customer or client requirements

    
    Occupation:

    133611 Supply and Distribution Manager
    133612 Procurement Manager

    
    133611 SUPPLY AND DISTRIBUTION MANAGER

    
    Plans, organises, directs, controls and coordinates the supply, storage and distribution of goods produced by an organisation.

    Skill Level: 1
    Specialisations:

    Logistics Manager
    Logistics Officer (Air Force)
    Ordnance Corps Officer (Army)
    Supply Chain Manager
    Supply Officer (Navy)
    Transport Corps Officer (Army)

13. Ms Vermaak’s resume indicates that between 1 June1998 and 28 August 2004 she worked as a ‘wholesale manager’ for Barberton Meat Wholesalers (Motifprops Pty Ltd) in Barberton, South Africa.  Prior to this she had worked as a cashier in a supermarket.  She returned to a position as a cashier between 2004 and 2008.

14. From 2008 until 18 April 2016 Ms Vermaak worked as a ‘floor manager’ for Cash Converters in Richards Bay, South Africa.  Ms Vermaak commenced her current position with the nominating employer in Australia in 2016.

15. I accept that Ms Vermaak’s role as a ‘wholesale manager’ with Barberton Meat Wholesalers  is very similar to role she performs for her nominating employer Westone Pty Ltd which  operates the Great Eastern Abattoir.  Indeed, the director of Motifprops Pty Ltd (trading as Barberton Meat Wholesalers) is Mr  Davies, who is now the director of the nominating employer Westone Pty Ltd. I understand that the Minister has approved the corresponding nomination of the position with the sponsoring employer, accepting the position to be that of a Supply and Distribution Manager.

16. In response to my questions as to why Ms Vermaak had left the higher skilled position with Barberton Meat Wholesalers to return to cashier work, Ms Vermaak explained that Mr Davies had sold Barberton Meat Wholesalers in order to migrate to Australia, where he has established the business that is now the nominating employer.  Ms Vermaak explained that she had travelled to Australia in 2016 to visit family here and had been approached by Mr Davies to work for him again in the position with Great Eastern Abattoir.  Ms Vermaak explained that between leaving Barberton Meat Wholesalers and commencing at Cash Converters, she returned to her hometown and attended to family commitments.

17. I generally found Ms Vermaak to be a good witness as to her employment history and the tasks associated with her roles.  Ms Vermaak was able to speak cogently and with sufficient detail about specific aspects of her role with Barberton Meat Wholesalers.  I proceed upon accepting Ms Vermaak’s evidence about her employment history and the tasks associated with her previous roles.

18. I have also placed significant weight on the correspondence provided by Mr Davies, both in his capacity as Director of Barberton Meat Wholesalers and Director of Westone Pty Ltd.

19. I must focus on the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, by reference to the tasks as identified in ANZSCO.

20. Ms Vermaak described the nature of Barberton Meat Wholesalers’ business and her role within it.  The business supplied meat to restaurants and butcheries, including two retail sites it operated itself.  The business procured cattle livestock, held them for a time, slaughtered and butchered them and delivered the meat to customers and its own retail stores. In respect of the business’ retail stores, other stock was to be sourced and inventory monitored.

21. I accept that the business described by Ms Vermaak as confirmed by Mr Davies was indeed a business with sufficient logistical complexity to genuinely demonstrate tasks as described in the ANZSCO classification for Supply and Distribution Managers.   Ms Vermaak spoke cogently about how her role progressed to one of oversight of other staff who attended to administrative tasks associated with ensuring the business’ retails sites and customers were supplied.  I accept Ms Vermaak’s evidence that she had subordinates who reported to her concerning logistical matters, such as the feedlot manager and the managers of the retail sites. In responding to the delegate’s observations that the role appeared largely administrative, Ms Vermaak identified other employees within the business at the time who would attend to administrative arrangements such as arranging transport at her direction.

22. Ms Vermaak described her role in monitoring inventory, long term contracts, quality assurance and staff performance.  I consider that the tasks associated with Ms Vermaak’s role at Barberton justify a conclusion that her experience at that workplace is relevant experience that may substitute for formal qualifications.

23. Ms Vermaak worked for Barberton Meat Wholesalers for 6 years, but she told me that she did not undertake the oversight or managerial role until she had been with the company for 2 years.  Mr van Rensburg, representing Ms Vermaak, correctly points out that cl.457.223(4)(da) is a time of decision criterion, and asks me to also take into account her ongoing employment with her nominating employer in Australia. 

24. In that regard, Ms Vermaak agreed that her work in Australia is very similar to the work she did for Barberton Meat Wholesalers in South Africa.  I pressed Ms Vermaak to identify any differences in the operation of the businesses or the approach in undertaking her duties over time.  I note Ms Vermaak mentioned improvements and changes to business systems, but I understand she considers the roles inherently similar.  I found her explanation persuasive.

25. I consider that Ms Vermaak’s work experience for Barberton Meat Wholesalers when combined with her work experience for her nominating employer in Australia exceeds 5 years and is work experience I consider may substitute for formal qualifications in her particular circumstances, having particular regard to the tasks mentioned in the ANZSCO but also the particular characteristics of her position.  I am conscious that I must reach a finding in respect of the occupation rather than the particular position.  For the reasons given above, I am satisfied to conclude that Ms Vermaak has the skills, qualifications and experience is required to perform the tasks of the occupation of a Supply and Distribution Manager in Australia having regard to her work experience which substitutes for the qualifications ordinarily expected.

26. In reaching this view, it has been unnecessary for me to place weight on Ms Vermaak’s experience as a Floor Manager for Cash Converters in South Africa.  Briefly however, I was less persuaded that this position had the necessary characteristics associated with logistics to be considered as work experience that may substitute for qualifications for this particular occupation.  I do however place limited favourable weight on the management characteristics of that position.

27. Ultimately, and in any event, I am satisfied that the primary visa applicant satisfies the requirements of cl.457.223(4)(da). Given that finding, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

28. The second and third-named applicants rely on their status as members of the same family unit as Ms Vermaak.  As their visas were refused by the delegate because the delegate found that Ms Vermaak did not satisfy the primary criteria for the visa, the appropriate course is to set those decisions aside and remit the visa applications to the Department for further consideration.

    DECISION

    The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(da) of Schedule 2 to the Regulations.

    Marten Kennedy
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    …

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    …