1420370 (Migration)

1420370 (Migration) [2016] AATA 3186 (9 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  LURY PTY LTD
CASE NUMBER:  1420370
DIBP REFERENCE(S):  BCC2014/2551358
MEMBER:Rania Skaros
DATE:9 February 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 09 February 2016 at 11:36am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by the delegate of the Minister for Immigration on 11 December 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 3 October 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) because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
Mr Younggeun Ku appeared before the Tribunal on 9 October 2015 to give evidence and present arguments on behalf of Lury Pty Ltd. After the hearing the Tribunal received advice from the representative that Mr Ku’s statements at the hearing about Ms Seounghee Mun’s role with Lury Pty Ltd (the Company) were inaccurate. The Tribunal decided to have another hearing which took place on 15 October 2015. Ms Mun, the Company’s Director and nominee for the position, attended the hearing by telephone from Korea to give evidence and present arguments. Due to issues with inadequacy of the interpretation and a poor telephone connection the Tribunal decided to have a further hearing which took place on 1 February 2016. At the second hearing the Tribunal received evidence from Mr Mark Smithers, a Market Research Analyst.
The Tribunal hearings were conducted with the assistance of interpreters in the Korean and English languages.
The applicant was represented in relation to the review by its registered migration agent.
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).
The issue before the delegate was whether the position associated with the nominated occupation of Managing Director is genuine. This remained the issue of concern before the Tribunal
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. In this case the applicant nominated the occupation of Managing Director (111111). In determining whether the position nominated is that of Managing Director, the Tribunal has had regard to the skill level and tasks included for that occupation as set out in the ANZSCO, which provides:
UNIT GROUP 1111 CHIEF EXECUTIVES AND MANAGING DIRECTORS

CHIEF EXECUTIVES AND MANAGING DIRECTORS determine, formulate and review the general policy programs and the overall direction of organisations within the framework established by boards of directors and similar governing bodies.
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:
odetermining objectives, strategies, policies and programs for organisations
oproviding overall direction and management to organisations
oauthorising material, human and financial resources to implement organisational policies and programs
omonitoring and evaluating performance of organisations against organisational objectives and strategies
oconsulting with senior subordinate staff and reviewing recommendations and reports
opreparing, or arranging for the preparation of, reports, budgets and forecasts and presenting them to governing bodies
orepresenting the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility
oselecting, or approving the selection of senior staff
oensuring the organisation complies with company laws and other relevant legislation

Occupation:
111111 Chief Executive or Managing Director

111111 CHIEF EXECUTIVE OR MANAGING DIRECTOR

Alternative Title:
Chief Executive Officer

Determines, formulates and reviews the general policy program and the overall direction of an organisation within the framework established by a board of directors or similar governing body.
Skill Level: 1
Specialisations:
Director-General
Executive Director
Secretary (Government Department) (Aus)
While the Tribunal has not placed absolute reliance on the ANZSCO description, it nevertheless considers that, to maintain the integrity of the nomination and 457 visa program, a position in the occupation of Managing Director would involve the types of tasks at the level set out in the ANZSCO.
The Tribunal had regard to the material in the Department’s file and the submissions and documents provided during the processing of the review, which relevantly included a position description, agreement documents between the applicant and a number of franchisees, and letters of support detailing the need for the nominee, Ms Mun, to be in Australia to fulfil the duties of the role, which includes negotiating with franchisees.
Also provided was an organisational structure, indicating that Ms Mun is the Managing Director and that Company also employs an Account Manager, Franchise Manager, who overlooks 6 franchisees, Online Sales Manager and Auburn Warehouse/Shop Manager who manages two shop assistants.
Also provided was a contract of employment, indicating that the applicant’s guaranteed annual earnings will be $135,800, lease agreements for the shop in Auburn and various other outlets, and statements in relation to of payment of rent by the applicant for the various outlets.
The Tribunal has also had regard to the 2015 financial reports which indicates the business turnover had a turnover of $570,000 and spent $184,000 on wages in that year.
The Tribunal has also had regard to the various letters of support provided with the visa application from suppliers in Korea and China. These letters were dated October and November 2014 and indicate that representatives from these companies have dealt with Ms Mun as the Director of the Company, and that they discuss with her issues regarding supply and distribution of products, payment of accounts, and that she is the only person in the Company with whom they negotiate prices and agreements.
The Tribunal has also had regard to the various letters of support from the applicant’s solicitor, accountant, franchisees and managers indicating that they have dealt Ms Mun in her capacity as the Managing Director of the business. The ASIC report notes Ms Mun as the sole shareholder and Director. The Tribunal also received position descriptions for the other manager positions in the Company.
The Tribunal has also had regard to the written submissions which provides background information about the business that is operated by the applicant. It was indicated that the business, whose main location and warehouse are in Auburn, provides wholesale and retail services, selling a range of children’s fashions, newborn babywear and accessories, mostly imported from South Korea and China. The business was established in 2012 by Ms Mun and her partner. Ms Mun now owns 100% of the shares in the company. It was noted that the business employs 5 people and has 8 franchise shops, kiosk style outlets, which are located in local shopping centres. It was submitted that the business is looking at expanding and requires a Managing Director who has knowledge of the Korean fashion industry, has knowledge of suppliers, has good contacts and has full understanding of the business in relation to wholesale\retail supply chains.
The Tribunal also had regard to the letter of support from the Managing Director of Mari Co. limited, a Korean clothing manufacturer, indicating that the funds for Lury Pty Ltd were advanced by them for the purpose of establishing a distribution channel throughout Australia. The submissions noted that the nominee has played a crucial role for the success of the Australian business since its opening in 2012, by supporting the company with the supply of quality products from Korea and China and establishing a franchise system with the Lury brand in Australia.
The Tribunal has also had regard to some of the evidence provided by Mr Ku at the first hearing. Even though it was submitted that Mr Ku may not have full knowledge of Ms Mun’s duties since she was appointed as Managing Director in 2014 and had provided inaccurate information, after having the opportunity to speak to Ms Mun, the Tribunal considered Mr Ku’s evidence, in many aspects, to be consistent with the evidence provided by Ms Mun at the hearing and with the documentary evidence about the business’ operations.
At the hearing, Mr Ku indicated that he is one of the Managers in the business. He is noted on the organisation’s chart as the Franchise Manager. He confirmed that the business is involved in the sale and distribution of children’s clothing and accessories which are imported from South Korea and China. He gave evidence that Ms Mun is the Managing Director of Lury Pty Ltd, an associate of a company in Korea. When asked about the duties involved in performing the role of Managing Director, Mr Ku stated that Ms Mun is involved in export and the supply chain of goods from South Korea and China according to her own taste. He said that she is in charge of advertisements and promotions and has the final say on these matters. She provided directions on the promotion and advertising, she was responsible for the accounting and finance and determined how much funds would be spent on promotions and how much would be spent on supplying the goods. He stated that because the items were for children the displays are very important and so she gave directions in relation to the display and changes of merchandise. She gives directions about customer service and is involved in the franchise contracts, price negotiations and whether the company would enter into agreements with franchisees. He noted that with the applicant being overseas the company was suffering a loss.
The Tribunal raised a number of concerns with Mr Ku, indicating that it was of the view that the position appeared to correspond to the occupation of wholesale manager, or supply and distribution manager, and not that of a Managing Director. The Tribunal discussed some of the tasks set out in the ANZSCO for the occupation of Managing Director and occupations in Unit Group 1333 Importers, Exporters and Wholesalers. Mr Ku said that in his opinion the applicant was performing the role of Managing Director because she provides overall direction and vision for the business.
After the hearing the Tribunal received a submission from the representative indicating that Mr Ku had not provided correct evidence at the hearing and that he misunderstood the applicant’s role. The representative also referred to a decision of the Tribunal, in which a position in a small business with no employees was found to be that of Managing Director. The submission also referred to the view of the position of Managing Director by other institutes, such as the Australian Institute of Management and the Australian Bureau of statistics. The submissions also stated that the applicant business has a Board of Directors. It was submitted that Lury Pty Ltd was established in January 2012 with capital investment from Mari Co. Ltd, a clothing Korean children’s clothing manufacturer and wholesaler, and that from the beginning of its operations the Company had a board of non-executive directors whose main role was to advise the Managing Director in undertaking her duties and responsibilities. It was submitted that other Managers report to the Managing Director and that it is normal for a Managing Director in an Australian small medium enterprise to be hands-on and fully active. It was submitted that Ms Mun has extensive experience in Korea and undertakes the duties set out in the ANZSCO for the occupation of Managing Director.
It was also submitted that when the applicant was a non-executive director, between 2012 and 2014, she did travel to closely monitor and authorise product purchases and its shipping arrangements to Australia, however since her appointment as the Managing Director in September 2014 she had delegated those duties to other managers in the business. It was submitted that the business needs a leader and that Ms Mun has intimate knowledge of all levels of the business and the industry, that other managers carry out the duties under her guidance and direction, that each division has its own manager with their specialist skills and unique responsibilities who all have reporting obligations to Ms Mun for final authorisation. It was submitted that Ms Mun has full responsibility for the operations of the business, has full financial authority and operational control over the entire business operation and is the key decision-maker, has plans to expand the business and has secured investments from Korea.
At the second hearing the Tribunal had the opportunity to take evidence from Ms Mun. She gave evidence about the operations of the business. She explained that she came to Australia to do market research for a year and established the business which is involved in the wholesale and distribution of children’s clothing. The Tribunal noted that she was nominated for the occupation of Managing Director and asked her to explain the duties involved in performing that position. Ms Mun said that it involves managing, providing direction and instructing the various managers of the particular departments. When asked to give examples of how she does this, she explained that in relation to the online store, which has an online sales manager, if things are not running smoothly she would give provide the manager with further instructions. When asked to provide further information about her day-to-day tasks, she said that she manages the company and has the final say about the decision-making process and instructs the other managers on what to do. When asked to provide an example of the type of instructions that she gives, she stated that the warehouse manager would give her a report regarding the inflow and outflow of the warehouse goods and then she, on the basis of that report, could make a decision about what orders should be made. She noted that each day is different. She indicated that on Thursdays, because it is a shopping day, she goes to the shopfront and goes to the warehouse to check the items. On Friday she gets a report for the week regarding the new products that will be coming for that week and she prepares for the following week. She said that the managers of the various departments provide a daily report to her in the morning, for example she might get a report from the Franchise Manager that someone is interested in setting up a franchise, so she sets up a meeting and decides whether she will go ahead with the agreement.
When asked if she reports to anyone, she stated that she makes a quarterly report to the company in Korea, Mari Co Ltd. She also stated that she also reports on the performance of the Company at Mari’s annual general meeting. The Tribunal noted that she was the only director and shareholder of Lury Pty LTd and asked what the relationship was with the company in Korea, she explained that the she had worked for Mari for a long time up until 2010 and that the business in Australia was operating in the same industry. She explained that 40% of the product range are from Mari Co. The Tribunal asked her about who selects the products for sale in Australia, she indicated that she decides on the products. The Tribunal asked her if she goes to the factory to Korea to select those products she explained that she decides which products are ordered and sold in Australia. She said they have their own labels (brand name) and also use Mari labels.
The Tribunal asked Ms Mun who decides on which products get sold in Australia and how they come to Australia. She said that she decides she looks very carefully at all the items and decides on what products need to be ordered based on the sales records. She stated that the products normally arrive in a container. When asked if she negotiates with the clothing manufacturer and with the shipping company. She stated that since September 2014 all of the shipping has been done by a particular company. She said that the goods from Korea normally take one month to arrive in Australia, they then goes to the Auburn house warehouse where the goods are divided and classified. The manager at the warehouse reports to her about the goods and she then provides instruction about where the items are to be sent. She said and in the meantime she also looks at the goods and considers the displays. She decides on what pictures and photographs need to be prepared.
The Tribunal expressed its view that the duties she is describing for the nominated role suggest that the occupation is that of wholesaler and not Managing Director, as described in the ANZSCO. The representative indicated that Ms Mun appeared to be focusing on specific aspects and was not explaining the full duties of her position properly. The Tribunal attempted to discuss with the applicant the duties of Managing Director as set out in the ANZSCO, however interpreter indicated that she was having difficulty hearing the nominee properly due to a poor line, and also the representative was concerned that the interpreter was not interpreting correctly.
The Tribunal made an observation that although they had suggested Mr Ku had not provided accurate evidence, on what it had heard so far, his evidence appeared consistent with Ms Mun’s evidence and is consistent with the nature of the business’ operations, which imports clothes and from Korea and sell them in Australia. The Tribunal expressed its view that the position is that of a manager of a wholesale business and not a Managing Director as described in the ANZSCO. The representative indicated that the applicant was appointed as a Managing Director in September 2014 and she was concerned that the questions only appear to focus on a minor part of the applicant’s duties and did not reflect the full range of duties she performed as the Managing Director. The representative said that the applicant does not select the product herself and that it may have been an issue with the translation. The Tribunal noted that the applicant had also said that she was involved in overlooking the display of the goods, the representative agreed that the applicant did mention her involvement in the display of the goods.
Mr Smithers, who attended the hearing to provide evidence about small and medium enterprises in Australia, stated that his company undertake research for SMEs and their employees and that in Australia, of the 800,000 businesses, 90% of them employ between one and four people. He stated that the managing directors and CEOs of these very small organisations have very similar duties to those described in the ANZSCO albeit it at a more informal level. He indicated that the majority of managers of the SME would classify under the classification of Managing Director and would operate in the same way as a large business.

The Tribunal acknowledged Mr Smithers’ evidence and noted that while that may be the case for directors of small-medium businesses in Australia, for the purposes of migration, the Tribunal had to be satisfied that the position will involve undertaking the tasks at the level described in the ANZSCO. The Tribunal noted that under the Corporations Act all companies needed to have a Director, however, this did not necessary mean that the position can be classified as Managing Director, as described in the ANZSCO, for the purposes of migration.
At the third hearing the Tribunal explained to Ms Mun that it had the opportunity to review the evidence from the previous hearings and also the written submissions provided by the representative. The Tribunal explained that while it accepted that that tole involved undertaking managerial and supervisory duties, it had formed the preliminary view that, given her evidence regarding the day- to- day involvement with the operations of the business, it may not be satisfied that tasks of the position involve carrying out the tasks at the skill level set out in the ANZSCO for the occupation of Managing Director. Ms Mun stated that in her opinion the tasks that she undertakes cannot be fulfilled by any manager. She carries out duties according to her long experience that she has had in Korea.
Ms Mun told the Tribunal that her tasks involve managing, supervising and controlling the operations of the business in Australia and there is a gap between the manager and managing director. The Tribunal indicated that in the written submissions it was noted that she determined objectives, strategies, policies and programs for the organisation. The Tribunal asked her to give some examples of how she determines the organisations objectives. In response she said that Australia’s domestic market was different to that of Korea’s and that also the season is the opposite. She said that based on 10 years of experience at Mari, where they manufacture the clothes, and together with her experience of studying in Australia, she suggested the idea of starting a business in Australia because of the seasons. She said she made this suggestion during a meeting and came up with the idea and she initiated that strategy.
The Tribunal asked Ms Mun about some of the policies and programs that she had formulated for the organisation. She said the operations between South Korea and Australia is different. It was difficult to move into a shopping centre in Australia. She noted that the business was involved in babies and children’s garments and accessories and that there were very several large businesses handling these types of products that were already established and so she could not run that business in the same way. She said she knocked on the door of many shopping centres so she could open a store and she tried many times, even in South Korea. She had many face-to-face meetings. She said she came up with a different idea, and that was to sell the product to private Korean stores as a wholesaler and she made contacts with these businesses and offered favourable terms of trade and started to supply those products to the shops in Australia. She said that as she supplied those products in wholesale, the stores did not display her products separately, and it was difficult for her product to be distinguished. She stated that she suggested that they have a separate dedicated display area in their store. She said they provided extra services and their products attracted positive feedback from customers. She said she then knocked on the door of major shopping centres. She took photos and sent emails to the shopping managers and she met with various managers of the shopping centre. One of the managers had received her product as a present and she was very happy with the product but noted that because there were other children stores in the same shopping centre and the shopping centre was not a particularly large one, the manager suggested to her they could not have another clothes store but gave her a chance to sell her products in a kiosk style outlet. She said that she was willing to accept the offer as a way to get access to the market in Australia. She said that this allowed them to be successful in going into shopping centres and that Campsie was the longest established kiosk. She said they were able to be successful there because they are able to offer competitive prices as they manufactured their own products in Korea. She said that Korean pop culture had become influential and that in Campsie there with the large Chinese population and so they were able to achieve good sales in that area and have been able to make a good business despite the higher rents. She said that she has had success at the Campsie shopping centre by focusing on the nice display. She said the centre manager had moved from Campsie to other shopping centres and had recommended her shops to friends and colleagues and she puts that down to the quality of the products they sell. She said that they have received an offer to open a proper store in Westfield shopping centre in Chatswood.
The Tribunal asked the applicant who manages the display of the clothes in the outlets. She said the products focus on the family look, having matching sets of clothes and accessories for child and parent, mother and child, and so on. She said that the Mari brand is popular in Korea because of the family look and that was the same marketing strategy and they have developed catalogues for the product. The Tribunal asked again who was concerned with how the products were displayed, she stated that there was a manager that was responsible for the display and the goods and the running of the business in each store. When asked if she is involved with the display of the goods, she said when the goods arrive they have a display with the new products, the assistant manager checks that everything is done correctly and visits the store about once a week and reports to her about the status of the display. She said with modern technology they can now use the telephone and she is able to view the display and give further instructions if required. She said because she is not in Australia it has been very difficult for her to carry on the tasks in terms of investment. She indicated that she wanted to start a new not for profit outlet using faulty goods and leftover stock but it was difficult to have effective communications she would like to return to Australia and advance the business’ operations. She said they have a good quality goods and products with very competitive prices and can be successful in selling that product in Australia. She has built a good image for the product which is known for its reliability and integrity and she is concerned that it is going to be spoilt by the long delay of her absence from Australia.
The representative submitted that the Tribunal raised the concern about the size of the business and referred the Tribunal to a published decision of the Tribunal (differently constituted) where the business in that case had a sole director, did not have a board of directors and had no employees, and the member in that case had found the position to be Managing Director. The Tribunal noted that the case dealt with a different provision, namely r.5.19, and further noted that it was not bound by that decision and had to decide each matter on its own facts. The Tribunal noted it was not just looking at the size of the business, but also its operations and what is actually involved in carrying out the position.
The representative submitted that a major part of the Ms Mun’s role is to determine objectives and decide the future policies and projects of the business and that it was she that makes the final business decisions. She felt that it would be unreasonable to categorise her duties under a specialist manager position and she considered her to be a Managing Director because her duties are too wide and cannot be categorised.
The representative raised the concern that the applicant had not adequately demonstrated the full range of duties that she undertakes, including her role with the franchisees, the supply and distribution side of the business, her dealings with investors in Korea and the online business. The Tribunal noted that the applicant had the opportunity to mention all of these in the last hearing and in this hearing, and asked Ms Mun if there was anything further she wanted to say in light of what her representative had said. Ms Mun said that in relation to the online business, in Korea the online stores are established and she thought that in Australia it might be the same. She said they have a homepage already but though if the online shopping is successful it might negatively impact the kiosk business part of her strategy. She said while people could view the products online they were not able to purchase the product. She said that customers in other areas, not in Sydney, prefer to shop online and that she has given instructions to start sales online and is looking at a method of payment and delivery of goods. She said that her strategy is to market the goods in the online store but now that the brand is recognised they will start the online sales. She said that the online shopping mall was not targeting a large market in Korea and they believe Australia has a large market for their product in the future and are looking at the long term.
In relation to the franchise, she has been meeting with a lot of people and she needs to meet with people to establish these contracts. In terms of investment she had a meeting in September in Korea and she needs to go to Australia to crystallise all the plans regarding these investments.
In relation to supply and distribution, Ms Mun said she initially took care of that part of the business but when she became a Managing Director her tasks increased. She said that as she is now the Managing Director she can no longer take care of those duties anymore and has had to contract this part out to somebody else.
The Tribunal noted that when it asked her in the last hearing about the tasks of her position as a managing director she had indicated her involvement in the selection of products for sale in Australia, including involvement with the shipment. The Tribunal noted its concern that she might be changing her evidence in response to its concerns about the classification of the position. Ms Mun said she wants to clarify, in relation to identifying products and contacting people, she did this from 2012 to 2014. She said she did monitor the products as she had mentioned, but the important thing of identifying the product, she had only done that in the past before becoming the Managing Director. Ms Mun said the interpreter in the last hearing may have not been accurate on that point. She stated that in the last hearing they had two interpreters and were under pressure because of time. She said it is not the case that she is changing her evidence. She said that her tasks now as the Managing Director are different from the task of role that she did before she became a Director of the company.
Conclusions
The Tribunal has carefully considered all of the evidence before it but is not satisfied that the position is in the nominated occupation of Managing Director as described in the ANZSCO.
The Tribunal has had regard to the nature of the business’ operations and accepts that the business is involved in the provision of wholesale and retail services for the sale of children’s clothing and accessories that are imported from Korea and China. The Tribunal accepts that the applicant requires a person that can manage the operations of its business, provide direction, and make decisions in relation to finances, marketing and to expand the business’ distribution network so as to increase sales in Australia. It also accepts that the position involves reporting to the business’ investors, Mari Co Ltd, in Korea. The Tribunal considers the applicant’s business to be a small size enterprise, and in the context of the size and nature of the business’ operations, it considers the position be that of a manager of an importing/wholesale/retail establishment, which is an occupation normally found in Unit Group 1333, and not a position in the occupation of Managing Director. The Tribunal considers that the position of Managing Director/Chief Executive Officer is a skill 1 senior executive role that is normally found in much larger organisations with multiple business units.
The Tribunal has had regard to the position description provided but gives this document little weight as it largely mirrors the wording of the tasks included in the ANZSCO for the occupation Managing Director. The Tribunal gives more weight to Ms Mun’s evidence at the hearings about what the position actually involves. When discussing with Ms Mun the task of determining objectives, she indicated that she came up with strategy to start a business in Australia and expand the clothing sale according to the season. Ms Mun’s evidence about the task of formulating policies and programs for the business referred primarily to identifying opportunities to expand the business’ distribution networks and increase sales in Australia. Furthermore, her evidence regarding the online store and its development, and her overseeing the display of the items, getting reports about the inflow and outflow of goods from the warehouse and deciding on who to enter into a franchise agreement with are, in the Tribunal’s view, not consistent with the types of tasks performed by a Managing Director. The Tribunal is not satisfied that the duties of the position will involve the level of complexity at the skill level described in the ANZSCO for the occupation Managing Director
The Tribunal has had regard to Ms Mun’s evidence that she is no longer involved with the selection, supply or distribution of products or its shipments and that she has delegated these responsibilities to other managers in the business. However, the Tribunal considers that even if the position will not include such duties, this still does not establish that the position involves performing the types of tasks included for Managing Director. The applicant has not demonstrated to the satisfaction of the Tribunal that the position involves performing the tasks of Managing Director at the level described in the ANZSCO.
The Tribunal has considered the representative’s submission regarding the view of the position of Managing Director by the Australian Bureau of Statistics and the Australian Institute of Management, however, as explained to the applicant at the hearing, for the purposes of migration, the Tribunal considers that for a position to be classified as Managing Director, the position requires more than just being the most senior person in a business, but must involve performing the types of tasks at the skill level indicated by ANZSCO. The Tribunal is not satisfied that the view of the position of Managing Director by the ABS or AIM assists the applicant in this case.
The Tribunal has considered Mr Smither’s evidence, and while it accepts that Directors or CEOs of small businesses in Australia may perform some or many of the tasks set out in the ANZSCO for the occupation Managing Director, the Tribunal considers that in many of these smaller businesses the Directors also perform many other duties that may not consistent with, or at the level expected of, Managing Director as described in the ANZSCO, and would therefore not meet the requirements for the purposes of migration. In any case, the Tribunal is not satisfied that in this case the position will involve undertaking the full range of tasks at the level described in the ANZSCO for the occupation Managing Director.
Given the above, the Tribunal is not satisfied that the position can be accurately described as Managing Director. For these reasons, the Tribunal is not satisfied that 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.
Rania Skaros
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)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].
(2)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).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)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).
(5)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.
(6)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.
(7)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.
(8)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.
(9)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).
(10)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.
(11)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.
(12)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.

[2016] AATA 3186

9 February 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness