Site Visits Cause Problems

Clients and their associates are often very poorly briefed on the possibility of site visits. Arshad 071699768 [2008] MRTA 795(24.9.08) is a good example. The case had some useful interpretation points what is employed:

The meaning of ‘engaged in an occupation’ was considered by Reithmuller FM in De Ronde v MIMA [2004] FMCA 519 as ‘actively participating in or undertaking duties directly connected with the carrying out of the occupation concerned.’ 

The case concerned the now defunct subclass 139 visa but the requirement to be employed in skilled occupation and the equivalent provision now reads (as an alternative to meeting the 2 year study rule):

175.211  (a)  the applicant has been employed in a skilled occupation for at least 12 months in the period of 24 months ending immediately before the day on which the application was made;

A practice point in Arshad was that the applicant had been employed in 2 skilled occupations over the relevant period, one as an office manager and the second as a marketing manager.  The employer was a textile company in Bangladesh. A site visit purportedly revealed that other employees thought there was no marketing department.

In the end in a fairly tortuous case the MRT concluded:

•41.              In view of the applicant’s qualifications and work experience, and the ASCO description of a marketing specialist, the Tribunal is satisfied that for at least 12 months in the 18 months immediately before the day on which the application was made, namely from 24.1.05 to 24..1.06, the applicant was employed as a Marketing Specialist. This is despite the fact that he had the flexibility to also involve himself at times in merchandising and other areas of the businesses.

•42.              The Tribunal accordingly finds that the applicant has nominated a skilled occupation in the application for which 40 points have been specified by an instrument in writing, and has been employed in a skilled occupation for a period totalling at least 12 months in the period of 18 months immediately before the day on which the application was made.

Visa applicants have to be told that site visits are likely especially in developing countries and that all the staff must be aware that such visits are pending.