Woodroffe (Migration)

[2017] AATA 1033

Woodroffe (Migration) [2017] AATA 1033 (21 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Craig Raymond Woodroffe
Miss WAN-CHEN TAI

CASE NUMBER:  1517416

DIBP REFERENCE(S):  BCC2015/2927246

MEMBER:Alan McMurran

DATE:21 June 2017

PLACE OF DECISION:  Sydney

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 21 June 2017 at 12:39pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications and employment background – Supply and Distribution Manager – No bachelor degree or higher qualification – 5 years’ prior experience

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, Part 457, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 7 October 2015.

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 26 November 2015 on the basis that cl.457.223(4)(da) was not met because the primary applicant has not demonstrated he has the skills qualifications and employment background necessary to successfully perform the tasks of the nominated occupation.

5. The applicants appeared before the Tribunal on 21 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Cara Pizzata, who represents the applicants’ employer / sponsor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).

   Skills, qualification and employment background of the applicant

8. 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. In this case the nominated occupation is Supply and Distribution Manager (ANZSCO 133611).

   ANZSCO

9. The Australian and New Zealand Standard Classification of Occupations is a guide used to help determine the relevant tasks used in a particular occupation. The guide states that a supply and distribution manager (133611) is someone who plans, organises, directs, controls and coordinates the supply, storage and distribution of goods produced by an organisation. Tasks include: determining, implementing and monitoring purchasing, storage and distribution strategies, policies and plans, preparing and implementing plans to maintain required stock levels at minimum cost, negotiating contracts with suppliers to meet quality, cost and delivery requirements, monitoring and reviewing storage and inventory systems to meet supply requirements and control stock levels, operating recording systems to track all movements of supplies and finished goods, and ensuring re-ordering and re-stocking at optimal times, liaising with other departments and customers concerning requirements for outward goods and associated forwarding transportation, overseeing the recording of purchase, storage and distribution transactions, directing staff activities and monitoring their performance

10. Clause 457.223(4) of Schedule 2 to the regulations sets out the requirements in order to satisfy the criteria for the grant of the Visa. Sub-clause 457.223 (4) (da) provides that the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

11. This review requires the Tribunal to consider the actual work being carried out by the applicant and the tasks undertaken by the applicant, as measured against the guide provided in ANZSCO 133611 as set out above, and the relevant facts and circumstances and evidence presented. As to the relevant facts and circumstances, the Tribunal on review has regard to the file from the Department, the Tribunal’s file and the oral evidence presented at hearing.

12. On review, the Tribunal relied upon the same information as had been made available to the delegate, with the addition of a reference from two employers and a statement from Mr Woodroffe. The Tribunal also had the added advantage of speaking with the applicant in person and hearing from a witness who has worked closely with and supervised the applicant in his working role.

    Relevant Skills

13. The applicant provided a copy of his curriculum vitae. The applicant had obtained a General Certificate of Secondary Education in England. The applicant has no bachelor degree or higher qualification. The CV shows, and the Tribunal accepts, that the applicant has worked in the position of warehouse team leader in England for the period from 2003 to 2013.

14. ANZSCO provides that where there is no bachelor degree or higher education qualification, at least 5 years of relevant experience may substitute for the formal qualification.

15. This would require the applicant to have worked for at least 5 years in a position where his tasks included a majority of those performed by supply and distribution managers at the level recognised by ANZSCO.

    Mr Woodroffe

16. Mr Woodroffe provided a reference from Selecta, his employer in the United Kingdom and where he worked for approximately 10 years. That reference sets out that the applicant’s main duties were picking items from stock, checking correct items and quantities against customer orders, loading vehicles and liaising with customers, reviewing storage warehouse layout, operating a forklift and monitoring stock levels.

17. In that role, Mr Woodroffe became a composite door fabricator and team leader managing 7 persons and was responsible for quality control, manufacturer of doors and components, overseeing and dispatching orders, managing customers and liaising with other departments, negotiating contracts with suppliers and monitoring storage and distribution.

18. The applicant came to Australia in about late 2013 and was employed by a labour hire company, Work and Travel Company Pty Ltd. While working for that company, the applicant did some casual work for JCD Ideas Holdings Proprietary Limited trading as Café ideas.

19. Mr Woodroffe continued in that casual role for the labour hire company from November 2013 until approximately mid-2015. Mr Woodroffe did some work for JCD in that period where he described himself as one of the “hired help”. It involved working in a warehouse at Waterloo where Mr Woodroffe worked under a full-time manager employed by JCD.

20. That manager resigned in mid to late 2015, and JCD advertised the position of warehouse manager on SEEK. Mr Woodruff applied for the position and as he was known to the staff at JCD already, he was offered the full-time position at a salary of $56,000 per annum.

21. At about the same time, the Tribunal was told that JCD was looking to relocate to another warehouse and that Mr Woodroffe’s services would be required to assist in the relocation and then to manage the new site. The location was found at Padstow in Sydney comprising approximately 3000 m² with an internal office.

22. Mr Woodroffe stated that he is the only employee in the warehouse. A driver who is subcontracted is also located at that site. Mr Woodroffe has an office space and a computer to assist in his duties. He described those duties as arranging the contractor’s daily run in the truck, ordering priorities in respect of deliveries, arranging customer liaison and pickup, checking on the arrival of 40 foot containers for unloading, and arranging casual labour to assist in that process, arranging for deliveries, attending to couriers and stock control. Mr Woodroffe is also required to drive a forklift for moving stock around within the warehouse, and in respect of which he holds the appropriate license to operate the equipment.

23. Mr Woodroffe reports on these activities via his computer. There is a programme installed to facilitate reporting and information about stock levels and which the company provided and which Mr Woodroffe uses to manage his work on a daily basis and which he finds easy to use, having been trained in the programme by the company.

24. JCD has an office and showroom at Chippendale in Sydney, where the administration and other staff are located. The applicant does not attend that site very often. He stated he has no reason to go there. The applicant reports directly to Cara Pizzata, the Import Director of the company who is located at Chippendale. Ms Pizzata occasionally visits the warehouse at Padstow.

25. Mr Woodruff is required to supervise any casual labour provided by the labour hire company to assist in unloading the containers which arrive at Padstow warehouse on a weekly basis. Mr Woodroffe arranges the hiring of the casual labour from the hire company for the manual tasks involved and the timing of that hire.

    Cara Pizzata

26. Ms Pizzata is the Import Director of JCD, who currently employs the applicant. Ms Pizzata confirmed the information provided by Mr Woodroffe as to how he came to be introduced to the employer and the work he currently performs.

27. Ms Pizzata stated that the company currently employs approximately 11 people including the applicant. All of those people work at the company’s showroom at Chippendale save for the applicant and the contracted driver and casual labour employed from time to time by the applicant to assist him with loading and unloading. The director gave evidence as to the relocation of the warehouse from Waterloo to Padstow and the assistance provided by the applicant in helping to manage that relocation. The director further gave evidence that the applicant is largely self-managed and unsupervised in his daily activities at the warehouse, which is run under his direct control.

28. The relocation was a “one-off” and not part of the daily duties of the applicant, although it took some time to implement. Choosing the site and its location was dealt with by Ms Pizzata with the assistance of real estate agents. According to the oral evidence, given by both the applicant and Ms Pizzata, the applicant played a significant role in the logistics for relocating to the new warehouse. It was the applicant who was responsible for coordinating the movement of stock from the previous location to the new location.

29. The director stated that the business is growing and has a current turnover of approximately $11 million per annum and has recently expanded to Melbourne where there are 2 other employees. There is a fast turnover of stock in the business and the company supplies the hospitality industry including restaurants pubs and clubs and government agencies. Stock supplied is principally furniture, white goods and equipment required for setting up cafes, restaurants and hotels. Much of those goods are imported and arrive at the warehouse in containers which are unloaded under the supervision of the applicant and with the assistance of casual labour hired by the applicant for the purpose and whom he supervises.

30. The director was asked about the contract of employment for the applicant and was told there is a contract which provides him with a salary of $56,000 per annum. The contract was not produced at the hearing and the director was asked whether that was an appropriate salary for a supply and distribution manager, which is regarded as a senior position for somebody such as the applicant and who works largely unsupervised.

31. The Tribunal was told the director believed the salary was appropriate, notwithstanding that it may be at the lower end or entry range of salaries for such a role, which can range from approximately $50,000 per annum up to $130,000 per annum. The Tribunal was informed that the applicant’s position has not been reviewed since he commenced full-time in or about November 2015.

32. The tribunal wrote to the sponsor and the applicant on 17 May 2017 requesting information concerning the salary of the applicant, noting that effective from 19 April 2017, pursuant to IMMI 16/059 as amended by IMMI 17/040, the nominated occupation was excluded from the amended list of the skilled occupations for a subclass 457 visa, where the applicant was in receipt of a nominated base salary pursuant to a contract of employment less than AUD $65,000.

33. A written response from the employer, Café ideas, was sent to the Tribunal by facsimile on or about 30 May 2017. A letter to the tribunal dated 16 June 2017 attached copy of an employment contract dated 1 May 2017, which shows the applicant is in receipt of a base salary of $65,000 plus super, and now meets the requirement for a base salary not less than $65,000 per annum.

    Findings

34. Having carefully considered the documentary and oral evidence before it, the Tribunal has come to the conclusion that the applicant performs the majority of the tasks properly described and referred to in ANZSCO for a supply and distribution manager. This includes tasks such as managing stock control and supervising and overseeing the recording of purchase, storage and distribution transactions, negotiating employment of subcontractors and casual labour, supervising delivery requirements, operating recording systems to track movements of supplies and finished goods and liaising with customers for outward goods collection and reporting to management.

35. The Tribunal is also of the view that the prior employment of the applicant in United Kingdom over a ten-year period was relevant in the context of the work experience and skills of the applicant. Having regard to the oral evidence of the witness and the written reference provided from Selecta, the Tribunal is satisfied that the applicant has a history of at least 5 years prior experience on the job and was performing a majority of the tasks in that role required by ANZSCO, such as planning, organising directing and controlling the supply storage and distribution of goods by that organisation and including while working as a manager for composite door fabrication. In the Tribunal’s view, it was this experience that has enabled the applicant to successfully operate a warehouse facility for the sponsor, largely unsupervised, and controlling and managing on a daily basis stock movements from the warehouse and employing labour and liaising directly with customers for outbound deliveries. The applicant also coordinates and arranges inbound deliveries, attending to couriers, supervising truck drivers and managing stock control. It is clear from the evidence of the witness, Cara Pizzata, that the applicant’s services as supply and distribution manager have greatly assisted the sponsor to successfully set up and run a new warehouse facility and grow its business.

36. The role and tasks as described by the applicant and confirmed by the director are principally those of someone engaged directly in supply and distribution management in the warehouse. The applicant performs the majority of tasks as described by ANZSCO for the position which involve amongst other things contract negotiation with a local labour force, policy and planning for stock control and oversight of operating systems.

37. For these reasons, the Tribunal finds that the applicant has the necessary skills, qualifications and employment background as required and as the Minister considers necessary to perform the tasks of the nominated occupation.

38. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

    Miss Wan-Chen Tai

39. Under subclause 457.321 the applicant is a member of the family unit of the primary applicant and is included in the nomination in respect of the primary applicant in accordance with subclause 45.324 (1).

40. The issue of whether the secondary applicant satisfies the secondary criteria is to be reconsidered by the Minister if the Minister decides, after remittal, that the primary applicant satisfies the primary criteria specified in cl.457.2.

41. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

42. 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.

    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.