1505684 (Migration)

1505684 (Migration) [2015] AATA 3917 (24 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MARCELA OSORIO MORA AND BENJAMIN MUNOZ SANTAMARIA ATF OSORIO MUNOZ FAMILY TRUST
CASE NUMBER:  1505684
DIBP REFERENCE(S):  BCC2014/3533531
MEMBER:Lesley Hunt
DATE:24 December 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 24 December 2015 at 1:59pm

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 16 April 2015 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 23 December 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 regulation 2.72(10(f) because the delegate found that the position nominated was not necessary to the operations of the business and therefore did not find the position associated with the nominated occupation is genuine.
The applicant appeared before the Tribunal on 23 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
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 review applicant, the Marcela Osorio Mora and Benjamin Munoz Santamaria ATF Osorio Munoz Family Trust, operate a cleaning company called KIC Cleaning Services. The Trustees, Benjamin Munoz Santamaria and Marcela Osorio Mora, both nationals of Colombia, were in Australia as overseas students at the time of establishing the business under its current structure.
In 2014 the Osorio Munoz Family Trust applied for approval as a standard business sponsor; sought approval of the nominated position of Business Development Manager, Sales and Marketing Manager, and applied for Temporary Business Entry (Class UC) subclass 457 visas for the Trustees, Marcela Osorio Mora and Benjamin Munoz Santamaria.
The following documents were submitted In support of the application for approval of the nominated position.
·A letter of offer of employment of Marcela Osorio in the position of Business Development Manager.
·Advertisements seeking to recruit Business Development Managers in other businesses, including Ace Cleaning Services in Victoria.
·Several references from customers of KIC Cleaning Services.
·An Organizational Chart identifying Marcela Osorio in the top position as the Business Development Manager, Benjamin Munoz as the second top position of Cleaning Supervisor, with 4 positions of “cleaner” in the third and lowest rung of the chart. No other employees were identified in the chart.
·A business plan for KIC Cleaning Services prepared in April 2014.
·Profit and Loss Statements for the financial year 2013-2014.
·Business Activity Statements relevant to 2015 indicating total salary and wages for the 2015 financial year of $62,074.
The letter of offer of employment signed by Benjamin Munoz as the employer and Marcela Osorio as the employee, indicates an annual salary of $81,000 per annum ex superannuation for 40 hours a week, a contract of 4 years, and various leave entitlements. An attached schedule indicates that the nominated position reports to the Director; relates to the accountant, casual employees, contractors, suppliers and costumers and sets out the position’s responsibilities and duties.
The responsibilities of the nominated position as identified in the schedule are: Plan, direct and coordinate all marketing and sales strategies for the business in order to increase sales and maximise customer retention.
The duties of the nominated position are listed as:
·Develop and manage an Integrated Marketing Communication (IMC) strategy for the business consisting of web, social and print-media to reach our target market.
·Establish sales targets and a 5 year annual sales plan to ensure business presence and growth.
·Coordinate the development of the business’ website, social presence and print material.
·Manage the implementation of a customer relationship management system to assist the business better communicate with clients.
·Establish a database of potential clients to target through adequate marketing material.
·Evaluate potential referral and customer loyalty programs to secure additional business contracts.
·Organise direct sales strategies and networking events to source potential clients.
·Establish solid relationships with existing and potential clients.
·Research potential markets to continue maximising sales.
·Report on monthly sales and provide ongoing recommendations.
·Other related duties as required.
The Profit and Loss Statement for July 2013 to March 2014 shows total income of $75,857.46; gross profit of $63,862.46 and net profit of $53,032.56. Payroll expenses for that period total $467.91. For April 2014 to June 2014 there is total income of $34,618.41; gross profit of $24,550.41 and net profit of $19,485.73. Payroll expenses for that period total $395.83.
A business summary indicates that the business commenced operating as a partnership between Benjamin Munoz and a third party on 7 September 2011. On 31 March 2013 the business partnership ceased and the business commenced trading under a sole trader structure. On 1 April 2014 the business changed its structure to a discretionary trust with Benjamin Munoz Santamaria and Marcela Osorio Mora as the business owners.
The products and services offered are identified as: domestic, industrial and commercial carpet cleaning; exit and bond cleaning; regular cleaning; pressure cleaning; upholstery cleaning; office cleaning; and windows cleaning. Ten existing clients were identified in the business plan.
The role of Sales and Marketing Manager is defined the ANZSCO dictionary at 131112. It is part of the Unit Group of Advertising, Public Relations and Sales Managers. The Business Development Manager is a specialisation within the category of Sales and Marketing Manager. The ANZSCO Dictionary defines the role of the Sales and Marketing Manager as follows: To plan, organise, direct, control and coordinate the sales and marketing activities within an organisation.
ANZSCO describes the tasks of advertising, public relations and sales managers as follows:
·Directing the development and implementation of sales strategies and setting sales targets in order to maximise an organisation’s sales and customer loyalty.
·Directing the development and implementation of strategies to promote an organisation’s goods and services to as many people as possible.
·Directing the development and implementation of strategies to generate increased consumption of an organisation’s goods and services through the creation and reinforcement of “brand image” or ‘brand loyalty”.
·Directing the development and implementation of strategies to build and maintain an organisation’s image and reputation with its consumers, investors and the wider public.
Marcela Osorio appeared before the Tribunal and provided the following information in response to the Tribunal’s questions.
Ms Osorio clarified that she completed her Masters in Business Administration in Australia two years ago and then she brought out her husband’s business partner in KIC Cleaning Services. She and her husband are the sole owners of the business and manage the business together. They are both Directors. She stated that they have four or five employees and the number of employees depends on the season. She clarified that none of their employees are Australian permanent residents or citizens; they are all overseas students in Australia on temporary visas. Ms Osorio clarified that the bookkeeper is not an employee of the business and currently they employee between three and six cleaners.
Ms Osorio clarified that she is paid $2554 gross salary per fortnight. The Tribunal put to the applicant that her letter of employment offer refers to an annual salary of $81,000 and her gross fortnightly salary does not amount to an annual salary of $81,000. Also, her nominated annual salary is inconsistent with the business’ annual turnover of $110,475, given that other employees have to be paid and the other expenses involved in running the business. The BAS statements indicate total salaries for 2015 financial year of $62,074. Ms Osorio responded that her aim is to find new business clients and new customers and to grow the business.
Ms Osorio stated that her current visa is a bridging visa and she is limited to 20 hours a week work rights. She also stated that the other employees are contractors so their salaries are not included in the Business Activity Statements.
Ms Osorio told the Tribunal that her average day involves organising her timetable; talking with actual customers; undertaking a customer survey about the quality of the service provided. She stated that most clients are real estate agents and she is trying to find new business clients and new real estate agents. She wants to branch out into pest control and cleaning the common areas in larger complexes.
The Tribunal referred to the ANZSCO dictionary description of the role of the Sales and Marketing Manager and asked the applicant about her activities in relation to promoting the business. She stated that KIC cleaning services has a Facebook page, business cards and fliers. The Tribunal asked the applicant if the business had a client database. She responded that the business has 20 regular clients. They are real estate agents, building managers, and offices. She clarified that she has not organised networking events and does not have a customer loyalty program. Her research of potential markets is done through the phone book and local area business directories.
The Tribunal put to the applicant that on the evidence it appears that the position of Business Development Manager is not what it purports to be. The work she does and the scale of KIC cleaning services does not appear to warrant a Business Development Manager / Sales and Marketing Manager as that position is defined in the ANZSCO dictionary. The scope and scale of KIC cleaning services is considerably smaller than the scope and scale of a business that would employ and require a business development manager / sales and marketing manager.
Ms Osorio responded that she is restricted in regards to developing the business because of the limited hours she is able to work each week. However her plan is to develop the business. The business clients are very happy with the services they provide. References from their customers have been provided in support of this claim.
Copies of the customer satisfaction survey were submitted to the Tribunal together with several additional references from KIC Cleaning Services’ clients and a number of Business Activity Statements submitted to the Australian Taxation Office through the Tax Agent Portal.
Additional evidence was submitted to the Tribunal and includes a submission from the representative; a statement regarding the importance of a Business Development Manager in a small business enterprise; a Marketing Plan; evidence that the Osorio Munoz Family Trust has been approved as a standard business sponsor from 25 September 2015 to 25 September 2020; evidence of the parties’ increased Public and Products Liability Insurance; a copy of KIC Cleaning Services’ client database listing 27 clients; advertisements for Business Development Managers; and a letter from Hola Networking regarding 2 networking functions attended by Marcela Osorio.
The Tribunal has carefully considered all the evidence before it; however the Tribunal is unable to be satisfied that the KIC Cleaning Services, operated by the Osorio Munoz Family Trust, warrants a Business Development Manager / Sales and Marketing Manager, as the positions are defined in the ANZSCO Dictionary.
The Tribunal accepts that business development is critical to the survival and expansion of any business and that new contracts are essential for the survival of a business. The Tribunal accepts that the nominee, Marcela Osorio, has the skills and qualifications to be a Business Development Manager, and has the skills and qualifications to successfully manage KIC Cleaning Services. However the Tribunal does not accept that KIC Cleaning Services has the capacity or the need to employ a Business Development Manager as that occupation is defined in the ANZSCO dictionary.
The Tribunal bases this finding on the following facts. KIC Cleaning Services has, according to the evidence submitted to the Tribunal, approximately six employees. Two of those are the Directors of the business – Marcela Osorio and her spouse Benjamin Munoz Santamaria. The other employees are cleaners all of whom are engaged on a contract basis. The business currently has 27 customers listed on its database and an annual turnover of $110,475. It is a small business with a low turnover. The business development activities and strategies are limited to a webpage, business cards, fliers, searching through phone books and business directories, word of mouth, and the nominee’s attendance at 2 networking events organised by a networking agency. Whilst the salary offered in the letter of offer of employment is competitive, on the applicant’s own evidence she is not being paid at that rate. This is a further indication that KIC cleaning services does not have the capacity to pay the nominated salary and is not a business that genuinely requires a Business Development Manager / Sales and Marketing Manager.
Whilst the letter of offer of employment and the marketing plan seek to show that the duties of the position closely correspond to the duties described in the ANZSCO occupation of Sales and Marketing Manager, the written material does not accurately reflect the scope of the activities undertaken by the nominee and the skill level of the actual duties she performs on a daily basis, as outlined at the hearing. The Tribunal does not doubt the energy and drive of the nominee; however the business is a small enterprise and the evidence does not demonstrate that there is the capacity or the need for the business to employ a high level management position such as a Business Development Manager / Sales and Marketing Manager as defined in ANZSCO.
After assessing all the evidence, the Tribunal is not satisfied that the position held by the nominee does in practice undertake the range of duties and responsibilities of, and at the skill level of, a Business Development Manager (specialization in the Sales and Marketing Manager category) as described in ANZSCO. The Tribunal does not accept that a Sales and Marketing Manager, as described in ANZSCO, is genuinely necessary to the operations of the business.
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 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.
Lesley Hunt
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.

[2015] AATA 3917

24 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction