Wang (Migration)

[2017] AATA 2123

Wang (Migration) [2017] AATA 2123 (31 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Shaojing Wang
Mr Fu Sun
Miss Meng Sun
Mr Yingshi Sun

CASE NUMBER:  1614765

DIBP REFERENCE(S):  BCC2015/3760429

MEMBER:Kate Millar

DATE:31 October 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.232 of Schedule 2 to the Regulations; and

·cl.187.234 of Schedule 2 to the Regulations.

Statement made on 31 October 2017 at 11:51am

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme – Direct Entry scheme – Marketing Specialist – Requirement to have competent English – Skills and qualifications requirement – Five years relevant experience

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulations 1994, r 1.15C, Schedule 2, cl 187.232, cl 187.234

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 Immigration to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 8 December 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, Ms Shaojing Wang is seeking the visa in the Direct Entry stream, to work in the nominated position of Marketing Specialist. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas as the delegate was not satisfied Ms Wang met cl.187.232 of Schedule 2 to the Regulations which requires her to have competent English, or that she met cl.187.234, as the delegate was not satisfied she met the skills and qualifications requirement.

6. Ms Wang appeared before the Tribunal on 13 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicants were represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that the applications should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether Ms Wang had competent English and the skills and qualifications necessary for the position at the time of the visa application.

   English language proficiency

9. At the time the visa application is made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in legislative instrument IMMI15/083: cl.187.232.

10. ‘Competent English’ is defined in r.1.15C of the Regulations. A person will have competent English if he or she either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score, or

    ·holds a specified passport.

11. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI15/005.

12. IMMI 15/005 specifies an International English Language System Test (IELTS), and a score of at least six in each of the bands of listening, reading, writing, and speaking. 

13. Ms Wang did not provide an IELTS test to the delegate, however she provided to the Tribunal an IELTS test dated 19 January 2013 with the required scores. As the test was conducted in the three years prior to the visa application, she meets cl.187.232 at the time of application.

    Skills and qualifications

14. For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:

    ·     the applicant is in a specified class of persons (exempt persons), or

    ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

    ·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

15. For this criterion, the relevant classes of exempt persons have been specified in IMMI 15/083, and the occupations and relevant assessing authorities have been specified in IMMI12/096.  At the time of the application, Ms Wang was not in an exempt class of person, nor was her occupations specified in IMMI12/096. 

16. Whether Ms Wang meets this requirement turns on whether she has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. 

17. Ms Wang seeks to meet the requirements for a Marketing Specialist.  This is addressed in Unit Group 2251 in AZSCO for advertising and marketing professionals.  ANZSCO states:

    Most occupations in this unit group have a level of skills 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 qualifications. 

    Tertiary Qualifications

18. The skill requirements can be met by holding a bachelor or higher qualification.  Ms Wang provided a document and with an English translation of the document which states she studied at Beijing Jing Chen College from September 1993 to July 1997 with a specialty of Marketing and that she studied a four year undergraduate program.   The Tribunal accepts that if this document is valid it would show Ms Wang has a level of skills commensurate with a bachelor degree. 

19. The Tribunal requested that the department verify this document.  The response from the department was that there were serious concerns about the validity of the document.  The following notes were provided:

    On 16/02/2017 I called 010-114 and a female operator said there is no registration of Beijing Jing Cheng College. I tried all the telephone number of Beijing Jing Cheng College searched on Google, but none can be reached. Then I called Beijing Ministry of Education on 010-66096114 obtained from 010-114, a female officer guided me to check this school on but also cannot find Beijing Jing Cheng College on it.

20. This information was put to Ms Wang under s.359A of the Act, and she was invited to provide comments or a response to this information. In a written submission it was stated there was a problem with the translation of the document and that the correct name of the college is Beijing Capital College. It is submitted that Ms Wang graduated in 1997, and the College has now closed. While the College is now closed, it is submitted the website is still on-line and a link was provided to the website. Attached to the submission was a print out of the Bejing Capital College website in Chinese, a graduation certificate, a bachelor degree and an academic transcript.

21. This submission, and the accompanying documents provided by Ms Wang, were referred back to the department for further verification of Ms Wang’s qualifications.  The following response was provided:

    The second referral was finalised on 16/05/17 as ‘serious concerns’ the outcome is in ICSE:

    The website of Beijing Jing Cheng College ( ) which agent had provided was blocked.

    I checked this school, Beijing Jing Cheng College, on internet and it indicates that this school was not in the list of colleges and university nationwide. It also indicates that the media had exposed its false school running.

    I checked the official website of Ministry of Education of the Peoples Republic of China and there is a link for degree verification on this website, which is called China Qualification Verification. I opened this link and there is a phone no. for verification which is 010 82379480. Dialled this phone no. on 16 May 2017 and was advised that they are only able to verify the certificate issued in or after 2008. As applicants certificate was issued in 1997, it was unverifiable. I was also advised that this school was not registered at the Ministry of Education of the Peoples Republic of China.

    I checked another website, the authorised website by the Ministry of Education of the Peoples Republic of China for qualification verification and it indicates that applicants graduation certificate does not exist.

    There are three possibilities might lead to this outcome. 1. The graduation certificate number or clients name I input was incorrect. I had checked this twice and got the same outcome. 2. The school had provided incorrect information in relation to this qualification or had not yet registered this qualification. 3. This qualification is fake or was not acknowledged by the country.

    Overall, I’m finalising this referral as serious concerns.

22. This response was again put to Ms Wang in writing under s.359A of the Act. In response, Ms Wang submitted that she was able to access the website. It was submitted that when Ms Wang attended the College it has a satisfactory reputation and her qualification should not be undermined by the later direction of the college and its principals and owners. Ms Wang stated she was unaware of the school being exposed in the media. It is submitted the qualification could not be validated through the Chine Qualification Verification as it pre-dated the period in which qualification could be verified. Ms Wang submits that when she attempted to access the website there was a declaimer that only qualifications from 2001 were listed in the website.  It is submitted that the website also states that for qualifications between 1991 and 2000 due to manual input not all qualifications are posted on the site and a qualification in this period may not appear on the site. 

23. Ms Wang stated she had contacted the relevant education department in Beijing to ask for verification of her qualifications and had been asked to provide her qualifications and National ID card.  She submits the Education Department have said that they may not be able to verify her qualifications due to the closure of the College, but could provide an outcome regardless.  No further information from the Education Department has been submitted to the Tribunal in regard to the verification of Ms Wang’s qualifications. 

24. At hearing, Ms Wang said the school had a good reputation when she started, but that after she graduated she seldom went back and was not aware the school had been disqualified. She later realised the school was demolished in 2013.  She said she has tried to contact former student and teachers but the graduates have dispersed.  She was pregnant in her third year of university and did not attend her exams until year 4.  

25. After the hearing, Ms Wang provided a translated page which she says is that of Beijing Capital College that could not be accessed by the Department.  I am not satisfied this verifies her qualifications. 

26. As a result of the lack of any positive verification of Ms Wang’s qualification, I am not satisfied she holds a bachelor degree or higher qualification as required by ANZSCO. 

    Skills and experience

27. ANZSCO allows for at least five years of relevant experience and/or on-the-job training to substitute for the formal qualification.

28. This requirement must be met at the time of the visa application, and Ms Wang’s current employment experience, while relevant to the role of Marketing Specialist, does not indicate she had the required level of skill at the time of the visa application.

29. Ms Wang relies on the following work experience prior to the date of the visa application:

    ·February 2008 until September 2011 Yantai Baocheng Investment Co. Ltd (3 years 7 months)

    ·January 2014 to November 2015 Tangchen Holdings Pty Ltd (23 months). 

30. At hearing Ms Wang provide the address of Yantai Baochang Investment company as Fushan Road, Fushan District, Yantai, Shandong Province.  The address on the Bloomberg website for this company is No.175, Zhishui Middle Road, Zhifu District, Yantai.[1]  She said this company did property development and her role was marketing and sales including marketing investigation.  She said she worked on the Aucheng Yuan project which was a large development of 20,000 square meters in land, but that she left when the project was half completed.

    [1] >

    The Tribunal requested that the department verify the reference from Yantai Baochange Investment Co.  On 18 October 2017, the department advised:

    I obtained the phone [phone] for the company Yantai Baocheng Real Estate Co.ltd (translated as Yantai Baocheng Investment Co. Ltd in the employment letter) from third party (through local authority Shandong Commercial and Administration Bureau webpage), and dialled it at 10:00 am. The operator answered the phone and confirmed applicants employment. In order to further check applicants employment details, I asked the operator to transfer my phone to deputy general manager MOU Saiying, who signed the employment certificate on 25/02/2013. I was advised that Mrs. MOU is not in the office this morning and will be back in the afternoon. The operator then provided Mrs. Mous direct phone [phone] to me.

    Reached Mrs. Mou at 0535-6636266 this afternoon. She asked me to wait several minutes to check HR system, later she confirmed that the applicant WANG, SHAOJING (13/07/1972,F) was working there since Feb2008 and resigned in July 2011. She advised Wangs income was about rmb8K/month (including bonus).  Asked whats WANGs duty and daily task. Mrs. Mou advised WANG was acting as team leader of Marketing Department of the company. The applicants main responsibility is to set marketing strategy in line with overall company strategy. Daily work includes conducting market research on customers needs, organizing outdoors/indoors advertisement events, cooperating with sales department to find ways to attract more customers. The applicant is also responsible for setting up team target and writing reports on products promotion and summarizing outcome data. Overall, the information Mrs. Mou provided is consistent with applicant stated in the employment letter.

    As a result, I am finalised this referral as genuine.

31. As a result, I am satisfied that that Ms Wang has 3 years 5 months of relevant experience with Yantai Baocheng Investment co. Ltd. 

32. Ms Wang also relies on her work with Tangchen Holdings Pty Ltd for 23 months.  She has provided pay as you go payment summaries from 13 January 2014 to 40 June 2014, the 2015 financial year and the period 1 July 2015 to 29 November 2015 from the trustee for the Tangchen Unit Trust, her bank statement showing deposit of wages from Tangchen, tax returns and tax assessment notices, her employment contract with Tangchen, her position description in the role, of marketing specialist am a reference from Chenghui Xu stating she was employed as a marketing specialist from 1 January 2014 until 29 November 2015.   On the basis of this information, she has worked in this position for   23 months.

33. Ms Wang has more than five years of relevant experience at the time of the visa application, she has the qualification listed in ANZSCO as being necessary to perform the tasks of the occupation and she meets cl.187.234 of Schedule 2 of the Regulations.

34. Given these findings, the appropriate course is to remit the visa applications for Ms Wang and the secondary applicants to the Minister to consider the remaining criteria for the visa.

    DECISION

35. The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.232 of Schedule 2 to the Regulations; and

    ·cl.187.234 of Schedule 2 to the Regulations.

    Kate Millar
    Member