1415499 (Migration)

1415499 (Migration) [2015] AATA 3099 (6 July 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division
APPLICANT:  Spic & Span Commercial & Domestic Cleaning Pty Ltd
MRT CASE NUMBER:  1415499
DIBP REFERENCE(S):  BCC2014/1709231
COUNTRY OF REFERENCE:              Australia
TRIBUNAL MEMBER:  Glen Cranwell
DATE:6 July 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 06 July 2015 at 11:25am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 September 2014 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 12 July 2014. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f).
The applicant appeared before the Tribunal on 7 May 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

Position must be genuine

Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The applicant nominated Mr Alex Musson (the nominee) for the position of Sales and Marketing Manager (ANZSCO 1311-12). The applicant operates a cleaning and pest control business.
The ANZSCO description of the duties of Sales and Marketing Manager are as follows:
UNIT GROUP 1311 ADVERTISING AND SALES MANAGERS
ADVERTISING AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill 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 qualification (ANZSCO Skill Level 1).
Tasks Include:
·formulating and implementing policies and plans for advertising, public relations, sales and marketing in consultation with other Managers
·directing the development of initiatives for new products, marketing and advertising campaigns
·organising and controlling sales activities by setting product mix, geographical sales areas and customer service standards
·directing merchandising methods and distribution policy by coordinating the work of salespersons, and organising agents and distributors
·directing sales methods and arrangements by setting prices and credit arrangements

Occupations:
131111 Advertising and Public Relations Manager
131112 Sales and Marketing Manager
…
131112 SALES AND MARKETING MANAGER

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.
ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.
Skill Level: 1
Specialisations:
Business Development Manager
Market Research Manager
The Tribunal has used this as a guide only.
Mr Musson gave evidence that the applicant has a total of one employee – himself, being the nominee. The applicant currently engages 3 contractors, although there has been as many as 5 or 6 at various times.
The representative provided the following written description of the nominee’s duties, which the applicant confirmed at the hearing:
The duties of the position are described as follows:
55% of (the nominated applicant's) time to be dedicated to grow the business by doing the following: The development and implementation of sales strategies and setting sales targets in order to maximise Spic & Span Commercial and Domestic Cleaning sales and customer loyalty;
The development and implementation of strategies to promote Spic & Span Commercial and Domestic Cleaning's goods and services to as many people as possible;
The development and implementation of strategies to generate increased use of Spic & Span Commercial and Domestic Cleaning services through the creation and reinforcement of 'brand image' or 'brand loyalty';
The development and implementation of strategies to build and maintain Spic & Span Commercial and Domestic Cleaning's image and reputation with its customers and the wider public;
The above include the following marketing activities:
Printing of flyers and business cards,
Online marketing through Gumtree and Facebook;
Preparing quotes and tenders for corporate business opportunities;
Liaising in person with new and potential clients;
Following up on existing clients;
Negotiation of prices and contract conditions.
15 % of (the nominated applicant's) time to be dedicated to the day to day running of the business which includes the following tasks:
Appoint staff and sub-contractors when required,
allocate work, oversee work done by employees;
Quality control;
Estimate time required for each job, diarising jobs, staff rostering. Purchase of goods and equipment required to execute cleansing jobs; Purchase of chemicals;
Setting up business supplier accounts;
Banking and invoicing.
15% of (the nominated applicant's) time to be dedicated to render cleansing services which may include assisting employees to execute jobs;
15% of (the nominated applicant's) time to be allocated to pest control services which include the following:
Applying pest control chemicals to sites in person under pest control license.
The Nominator has certified in the application that the tasks of the position include a significant majority of the tasks of the nominated occupation Sales and Marketing Manager as listed in the ANZSCO dictionary, Legislative Instrument or Labour Agreement.
The background of this position is that the Director of the Company started the business in September 2013 and has since then to date been in the nominated occupation. Without a person in this position; the business will not grow, will not undertake any marketing, and will eventually stop trading. Please see the Statutory Declaration of Mr Alexander Paul Reynolds Musson.
The Tribunal put to the applicant that many of the nominee’s duties, as described above, do not appear to relate to the occupation of Sales and Marketing Manager. He spends 45% of his time on other duties.
The applicant stated that the business is all about relationship building. He might spend a lot more than 55% on that – some weeks it could be 100%. He works 70-80 hours per week, and spends 40 hours on sales and marketing duties, which is the equivalent of a full-time position.
The Tribunal also put to the applicant that the position may involve elements of management and elements of sales and marketing, but this did not make the position one of Sales and Marketing Manager. A Sales and Marketing Manager is a specialist manager position, normally to be found in a much larger organisation. Such a business might have other specialist managers, such as a human resources manager or a finance manager.
The applicant stated that the business was not big enough to warrant a finance manager. He is focussed on building up relationships to develop the business.
The applicant gave the Tribunal a copy of his pest control licence at the hearing.
The Tribunal finds that the nominated position pertains to the management of a cleaning and pest control business. The Tribunal accepts that the nominee’s position may involve elements of management and elements of sales and marketing, but this does not necessarily make the position one of Sales and Marketing Manager. A Sales and Marketing Manager is a specialist manager position, normally to be found in a much larger organisation. Such a business might have other specialist managers, such as a human resources manager or a finance manager. Given the nature and size of the business, the Tribunal is not satisfied that the nominee’s position is one of Sales and Marketing Manager. The Tribunal also does not accept that a Sales and Marketing Manager is necessary to the operation of the business. The Tribunal therefore is not satisfied the position associated with the nominated occupation is genuine.
For these reasons the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

DECISION

The Tribunal affirms the decision not to approve the nomination.

Glen Cranwell
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination — Subclass 457…

This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

(7A)In addition to subregulation (6):
(a)if:
(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii) the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

(b)if:
(i)    the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)     the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)    the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.

(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i) there is no 6-digit ANZSCO code for the nominated occupation; and
(ii) the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

(c)if:
(i) there is no 6-digit ANZSCO code for the nominated occupation; and
(ii) the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

Note The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).

If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:
(i)    are provided; or
(ii)     would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)    are provided; or
(ii)     would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)    the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)    if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)    the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)     if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)    if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)    the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)     if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)    the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)    the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)     the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;

that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.

If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)    the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)    the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2015] AATA 3099

6 July 2015

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice