1506173 (Migration)

1506173 (Migration) [2016] AATA 4505 (10 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Stradcon Pty Ltd
CASE NUMBER:  1506173
DIBP REFERENCE(S):  BCC2014/3149012
MEMBER:Alison Mercer
DATE:10 October 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 10 October 2016 at 3:01pm

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 15 April 2015 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant, Stradcon Pty Ltd (trading as The Fifth Province), applied for approval on 21 November 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination of the position of Graphic Designer, seeking to satisfy the criteria in Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a) of the Regulations because the delegate did not accept that the applicant, an Irish sports bar/restaurant/café, had a genuine need for a Graphic Designer. As the applicant did not satisfy all of the subparagraphs in r.5.19(4), its nomination had to be refused.
On 6 May 2015, the Tribunal received a review application signed on behalf of the applicant by its director, Liam Ganley. The application was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Natasha Ferreira, as its representative and authorised recipient for correspondence for the purposes of the review.
On 28 May 2015, the applicant’s agent provided submissions and documents in support of the review application. In summary, the applicant’s agent submitted that:
·the nominated position was crucial to the applicant company’s ongoing success and it would benefit by having the position filled on a fulltime basis;
·at the time that the nomination application was lodged, the applicant had only been operating for 2 months, and documentation was limited. It started trading in September 2014 and the nomination was lodged on 21 November 2014. However, it soon became evident to the director, Mr Ganley, that it would be in the company’s best interests to have a full time Graphic Designer. This realisation arose due to the mounting costs he incurred in the establishment phase of the business and had remained a constant and crucial ongoing requirement in relation to his branding and marketing campaigns. The business, an Irish sports bar based in St Kilda, was heavily reliant on events and promotions in order to attract clients to the pub on an ongoing basis;
·the director’s marketing strategy was to have a variety of events on a weekly, monthly and seasonal basis as well as to change the menus consistently in order to keep the clients interested, as failure to do so was a major downfall to many businesses in what was a competitive and challenging industry;
·in order to meet the above needs, the applicant needed a full time branding specialist who would oversee the critical strategies of the business, including its social media sites such as Facebook, Instagram and Twitter, which were widely used by likely patrons. The applicant’s plan was to target and engage clients and keep them hooked on the promotions and events provided by the pub;
·handling the applicant’s social media advertising alone would require a dedicated person on a daily and/or weekly basis to update clients on upcoming events, functions and promotions, particularly as potential clients often ask questions via social media which need to be constantly monitored and responded to;
·some of the promotional work that had been previously undertaken by external graphic artists and publicists was attached and it was submitted that it was evident from the costs involved for this past work that it would be more economical for the applicant to hire an in-house person dedicated to managing its advertising campaigns. It would also allow the applicant to maintain a marketing edge in its branding;
·the current competitive business environment meant most businesses were seeking an edge that set them apart from similar businesses. The Fifth Province relied on its branding to set it apart, in particular to promote regular events to attract loyal clientele. This was done by ensuring that the branding and advertising it used was captivating, unique and professional;
·the primary duties of a Graphic Designer were to generate visual communications, including producing a variety of layouts in electronic and print formats (such as newspapers, websites and magazines) as well as designs for advertising, promotions, events and exhibitions;
·it made good business sense to employ a Graphic Designer in-house given the number of events that the applicant promoted and ran. The position would look after the applicant’s brand and make sure that it was promoted in the correct places at the correct time with the correct materials. Having a professional do this work would free the director to concentrate on the other major areas of the business;
·in addition to the diverse and varied events occurring on an annual basis, there were also fixed occasions that needed to be promoted, such as Christmas functions and events, Easter, end of Year functions, pub lunches, Mother’s and Father’s Days, St Patrick’s Day, Happy Hours, Wednesday Specials, Sunday Sessions, State Games, Weekly Live Band, Golf Society and Beer of the Week;
·each weekend, the director employed a photographer to attend the venue to photograph the patrons to promote the venue on social media, and it was intended that the Graphic Designer would take over this responsibility, which required significant time to edit and select and them upload to the applicant’s website and Facebook page;
·in addition, the applicant sponsored a football team, and this meant that billboards had to be designed and ordered on time for upcoming games, and that the literature and sports magazines at these events had to feature the applicant and its special offers. Furthermore, the sporting attire had to be designed and feature the venue logo. This would also be handled by the Graphic Designer;
·the applicant was looking at sponsoring the nominee for a subclass 457 (Temporary Business) visa while the permanent residence case was pending, as it was a fundamental position to the business and required filling immediately and continuously; and
·the applicant satisfied all the criteria set out in r.5.19(4). In particular, the nominated occupation of Graphic Designer was on the current Consolidated Skilled Occupations List (CSOL) and the applicant could be taken to meet the relevant training obligations towards its Australian employees as it had recently been approved as a standard business sponsor (SBS) by the Department, for which it had been favourably assessed against the relevant Training Benchmarks.
The attached supporting documents included the following:
·notification from the Department to the applicant dated 28 November 2014 approving the applicant as an SBS until 28 November 2015;
·business plan for the applicant (The Fifth Province Irish Restaurant, Bar, Grill and Sports Bar), undated. Amongst other things, it indicates that the company was founded in 2013 by Mr Ganley to capitalise on the growing market for sports-themed restaurants and intends to be the premier Irish theme restaurant in Melbourne, to be characterised by an emphasis on sports and spectacular visual design interior that will be distinctively Irish. Marketing, including through social media, will be extensive and crucial to promoting the business and keeping loyal clientele engaged, particularly through promotions for various sporting events and festival days;
·quote to Mr Ganley from Snap Moorabbin, 9 April 2015, for cost of Graphic Design ($100 per hour, plus update of existing file at $30 and artwork changes following second proof at $25);
·undated quote from freelance graphic designer to Mr Ganley quoting $55 per hour;
·quote dated 16 April 2015 to Mr Ganley from Minuteman Press quoting $90 per hour for Graphic Design, $30 for updating any previous design or making artwork changes after second proof is received;
·document entitled Venue Graphic Designer Duties for The Fifth Province, undated;
·letter of intent from Mr Ganley dated 21 November 2014, in which he indicates that it is his intention to employ Ms Carina Smith as Graphic Designer in his business on full-time basis as she has invaluable insight into the workings of the hospitality industry not only from ‘hands on’ work within venues in Europe and Australia but through having worked alongside marketing teams and companies who have established and maintained hospitality brands. He states that, as a business owner, he understands the importance of branding and maintaining an identity within a marketplace, especially given the Melbourne hospitality market is incredibly competitive. His intention was to stay at the forefront by having a professional designer full-time. Mr Ganley further states that the business requires someone who is not only creative but has an impressive skills set in order to maintain the brand and keep it moving forward. Ms Smith had worked in the print industry which gave the business access to printing knowledge and in turn the most cost effective ways of producing promotional material and in-house stationery, including menus (which were to be redesigned every 12 weeks). Mr Ganley states that the business is defining itself as a leading venue in the live music sector and this needed ongoing attention for promotion and poster design. Further, he was aware of the importance of the business having an online presence, which Ms Smith would manage on a day to day basis. The business’ Twitter, Facebook and Instagram accounts needed constant updating and Ms Smith’s experience with digital software such as Dreamweaver and HTML would aid in maintaining the website. Such responsibilities would also utilise her skills and interest in photography. He states that he has researched the costs of outsourcing such work (for instance, by hiring a freelance designer) but the costs and turnaround times were unfavourable compared with having these services available in-house;
·advertisement on seek.com (20 April 2015) for Graphic Designer (Mid Weight) for Sporting Globe Bar & Grill franchise, Victoria, full-time; and
·various images of menus, promotional material, posters and sponsored uniforms for The Fifth Province.
On 20 July 2016, the Tribunal wrote to the applicant via its agent pursuant to s.359(2) to invite it to provide updated and/or additional information in writing demonstrating that it currently met all of r.5.19(4), a copy of which was enclosed for reference.
On 3 August 2016, the Tribunal received emailed documents from the applicant’s agent, including:
·designs for branded sportswear, including The Fifth Province logo;
·examples of The Fifth Province’s promotional billboards and posters;
·invoice issued by Australia Wide Taxation and Payroll Training, 14 September 2015, for training undertaken by an employee;
·BAS for the applicant for 1 October 2014 to 31 March 2016 with summary document;
·letter dated 3 August 2016 from Mr Ganley listing the regular events conducted by the applicant and the advertising, marketing and promotion required by the business. He states that there is consistent ongoing work and need for a Graphic Designer within the business, with menu design and seasonal changes to menus, point of sale posters, social media updates and regular maintenance of the website. Regular events requiring promotion/advertising included Christmas in July, Octoberfest, Spring Racing Carnival, Christmas/New Year’s Eve, Australia Day, St Kilda Festival, St Patrick’s Day and Easter. Additionally, the business has also promoted Good Beer Week, Superbowl, UFC Fights, Halloween, Robert Burns Night, Tinny Tuesdays, Wednesday Hump Days and Soup & Sambo lunch promotion;
·notification by the Department dated 7 January 2016 that the applicant has been approved as an SBS on that date until 7 January 2021; and
·updated submission from the applicant’s agent dated 3 August 2016, in which she noted that the company had now been trading for almost 2 years, in which its unique marketing had proven to be successful. It had achieved a turnover of $3 million in its first year of trading and was on track to exceed $4 million in turnover in its second year. Mr Ganley had succeeded in a cut-throat industry largely due to differentiating his venue from others through creative and unique marketing of menus, functions, weekly gatherings and specials, and he required ongoing monitoring and maintenance of these unique attributes to retain loyal customers and attract new ones. The company therefore required a full-time employee who was dedicated to the brand and its values and who has a consistent, hands on approach. It was submitted that when sub-contractors were used, they were found to simply deliver a service but did not have a connection with the clients and the end product, which a full time Graphic Designer would (and does), and it was submitted that the applicant had a genuine need for the position and that it met all the other relevant r.5.19(4) for approval of its nomination.
On 15 August 2016, the Tribunal wrote to the applicant via its agent to invite a representative of the applicant to attend a hearing on 8 September 2016. It also requested that the nominee, Ms Carina Smith, attend the hearing to give evidence as a witness.
On 5 September 2016, the applicant’s agent emailed the Tribunal to advise that the Mr Ganley, on behalf of the applicant, and Ms Smith, were happy to have the Tribunal to make a decision on the available information as they would not be able to attend the hearing.
On 12 September 2016, the Tribunal wrote to the applicant via its agent. It acknowledged that the hearing invitation had been declined and that the Tribunal had been invited to make its decision on the available evidence, and indicated that it was happy to do so. However, it noted that the following matters had not been addressed to date in a way which would enable the Tribunal to make a favourable decision on the papers in relation to the nomination or visa application:
· r.5.19(4)(d) – the Tribunal noted that it did not have a current contract between the applicant and the nominee indicating the latter’s terms and conditions of employment and guaranteeing that she would be employed on a full-time basis for at least 2 years without an expression prohibition on a further renewal;
· r.5.19(4)(e) – the Tribunal noted that it was not clear whether there was another Graphic Designer in the business, or just the nominee. Assuming the latter, the Tribunal queried on what basis was her salary was set. That is, the Tribunal queried how it could be satisfied that the nominee’s terms and conditions of employment would be no less favourable than those offered to an Australian performing the same job; and
· r.5.19(4)(h) – the Tribunal sought clarification of whether the applicant met Training Benchmark A or B for the purposes of being approved as a Standard Business Sponsor earlier in 2016.
The Tribunal requested that the above information be provided by 19 September 2016, if the parties wished to provide additional information.
On 19 September 2016, the Tribunal received further submissions from the applicant’s agent, with accompanying documentation. In summary, the agent submitted as follows:
·an offer/contract of employment had been provided. It was dated 19 September 2016, and indicated that the nominee’s position was Graphic Designer, that she would commence employment on a full time basis on grant of a visa, and would continue for at least 2 years, and beyond (unless an offence had been committed as outlined in clause 11 of the offer/contract). The salary was $55,000 plus superannuation;
·there was only 1 Graphic Designer in the business (the nominee) and her salary was determined by a salary survey (documentation for which was attached) and her terms and conditions were otherwise in accordance with Fair Work Australia standards; and
·the applicant met Training Benchmark B for the purposes of being approved as a standard business sponsor in 2016. The training expenditure for the year was $18,070.
The salary survey information provided included the agent’s submission that it was determined by reference to the Payscale, Open Universities and Seek.com websites, having regard to the nominee’s previous experience and qualifications as a Graphic Designer. It was asserted that the Payscale range indicated that current market rates were between $37,000 and $69,000 annually, while the Open Uni range was $45,500 to $78,000. Recent Seek advertisements indicated that a Graphic Designer position in Melbourne would be paid between $50,000 and $69,999 per year for a full-time position. The agent stated that the nominee’s range was within the above ranges and the applicant believed it was a fair market rate given her experience.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
From the material on the Department’s file, the Tribunal is satisfied that the application for approval was made on the approved form and was accompanied by the prescribed fee. As the nomination application was lodged prior to 14 December 2015, it was not required to be include the written certification relating to conduct that contravenes s.245AR(1). The Tribunal is satisfied that the nomination application identified a need for the nominator to employ a paid employee (the nominee Ms Carina Smith) in the nominated position of Graphic Designer under the direct control of the nominator.
The Tribunal therefore finds that the requirements in r.5.19(4)(a) are met.

The Tribunal notes that the delegate was not satisfied that the requirements of r.5.19(4)(a) were met as he did not accept that the applicant had established that it had a genuine need for a Graphic Designer. The Tribunal has considered the genuineness of the position in its discussion of the requirements of r.5.19(4)(h) below. In the Tribunal’s view, r.5.19(4)(a) simply requires the applicant to identify a need for the nominated position, which it has done, while the issue of whether that position is genuine is more appropriately assessed under r.5.19(4)(h).
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal is satisfied from the financial and general information provided to the Department and the Tribunal (including the BAS statements to 31 March 2016 and the applicant’s website ) that the applicant is actively, lawfully and directly operating a business in Australia; namely, an Irish-themed sports bar and restaurant called The Fifth Province, in St Kilda, Melbourne.
Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The available evidence indicates that the nominated position will be situated within the applicant’s business and there is no suggestion that the applicant is involved in labour hire activities to unrelated businesses.
Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The most recent employment contract provided to the Tribunal is dated 19 September 2016, and indicates that the nominee’s position is Graphic Designer, that she will commence employment on a full time basis on grant of a visa, and would continue for at least 2 years, and beyond (unless an offence had been committed as outlined in clause 11 of the offer/contract). The salary is $55,000 plus superannuation
Based on the above, the Tribunal is satisfied that the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Based on the written information provided to the Tribunal, the Tribunal is satisfied that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, to whom the nominee’s proposed terms and conditions of employment can be compared.
Accordingly, the Tribunal must assess whether the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant and its agent have provided a range of information addressing the market rate for a Graphic Designer, including advertisements from Seek.com and information obtained from the Payscale, and Open Universities websites, having regard to the nominee’s previous experience and qualifications as a Graphic Designer. It was asserted that the Payscale range indicated that current market rates were between $37,000 and $69,000 annually, while the Open Uni range was $45,500 to $78,000. Recent Seek advertisements indicated that a Graphic Designer position in Melbourne would be paid between $50,000 and $69,999 per year for a full-time position.
The Tribunal is satisfied that there is no specific Commonwealth or State award applicable to the nominated occupation. It has had regard to the latest Payscale report from March 2016, which suggests that there is a wide salary range for Graphic Designers, from $37,442 per year to $65,150 per year, with the median salary being $49,050: >
The Tribunal gives weight to the above information, and finds that the proposed salary for the nominated position is within the range identified by Payscale, is on a par with a relatively recent Seek advertisement for a similar position, and exceeds the median salary listed in the March 2016 Payscale salary report. Moreover, the Tribunal is satisfied that the leave and termination terms in the employment contract are consistent with those set out in the National Employment Standards.
On the basis of the above, the Tribunal is satisfied that the terms and conditions applicable to the position will be no less favourable than those that would be provided to an Australian employee performing equivalent work in the same workplace in the same location.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is nothing in the Department’s records or otherwise to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of Victoria relating to workplace relations.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position, and training benchmarks r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 15/091), and certain specified training benchmarks will be met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.
The material on the Department and Tribunal files indicates that the applicant and position are located in metropolitan Melbourne. As the position and the applicant are not located in regional Australia, the applicant must meet the criteria set out in the first dot point above.
The Tribunal is satisfied that the nominated occupation of Graphic Designer is specified in IMMI 15/091. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) online dictionary provides the following occupational description for Graphic Designers:
UNIT GROUP 2324 GRAPHIC AND WEB DESIGNERS, AND ILLUSTRATORS

GRAPHIC AND WEB DESIGNERS, AND ILLUSTRATORS design information for visual and audio communication, publication and display using print, film, electronic, digital and other forms of visual and audio media.
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 the objectives and constraints of the design brief by consulting with clients and stakeholders
oundertaking research and analysing functional communication requirements
oformulating design concepts for the subject to be communicated
opreparing sketches, diagrams, illustrations and layouts to communicate design concepts
onegotiating design solutions with clients, management, sales and production staff
oselecting, specifying or recommending functional and aesthetic materials and media for publication, delivery or display
odetailing and documenting the selected design for production
osupervising or carrying out production in the chosen media
omay archive information for future client use
Occupations:
232411 Graphic Designer
232412 Illustrator
232413 Multimedia Designer
232414 Web Designer

232411 GRAPHIC DESIGNER

Alternative Title:
Graphic Artist

Plans, designs, develops and prepares information for publication and reproduction using text, symbols, pictures, colours and layout to achieve commercial and communication needs with particular emphasis on tailoring the message for the intended audience.
Skill Level: 1
Specialisations:
Exhibition Designer
Film and Video Graphics Designer
Publication Designer

232412 ILLUSTRATOR

Plans, designs, develops, and prepares pictures and diagrams to communicate messages, clarify meaning, assist in presentations and illustrate stories, using traditional and digital media such as drawing, painting, drafting, collage, models, photography, and image capture and manipulation software.
Skill Level: 1
Specialisations:
Animator
Cartoonist
Technical Illustrator

232413 MULTIMEDIA DESIGNER

Alternative Titles:
Digital Media Designer
Interactive Media Designer

Plans, designs and develops the production of digitally delivered information, promotional content, instructional material and entertainment through online and recorded digital media using static and animated information, text, pictures, video and sound to produce information and entertainment tailored to an intended audience and purpose.
Skill Level: 1
Specialisation:
Instructional Designer

232414 WEB DESIGNER

Plans, designs, develops and prepares information for Internet publication with particular emphasis on the user interface, ease of navigation and location of information using text, pictures, animation, sound, colours, layout and data sources to deliver information tailored to an intended audience and purpose.
Skill Level: 1
The employment contract dated 19 September 2016 provided to the Tribunal lists the following duties for the nominated position (it is stated to be a non-exhaustive list):
·responsibility for design art and copy layouts for material to be presented by visual communications media such as posters, promotions, invites, menus, books, magazines, newspapers, television, stationery and packaging. Studies, illustrations and photographs to plan presentation of material, product, or service;
·determining size and arrangement of design material and copy, selection of style and type of print, arrangement of layout based upon available space, brand guidelines, knowledge of layout principles, and aesthetic design concepts. Maintaining records of stock levels and financial transactions with printers and suppliers;
·drawing samples of finished layout and presenting samples to director for approval;
·preparing notes and instructions for workers who assemble and prepare final layouts for manufacture (ie large format printing, signage, banners, billboards etc);
·may prepare illustrations or rough sketches of material according to instructions of client or supervisor;
·reporting to director from time to time;
·may mark up, paste and assemble final layouts for print and production using pre-press expertise;
·may photograph layouts and designs, using camera, to make marketing material for print and digital use as instructed under the guidelines of the supervisor or client;
·may develop negatives and prints, using negative and print developing equipment, tools and work aids to produce layout photographs for client or supervisor. Prepare files for digital options also.
Mr Liam Ganley, the director of the applicant, has also provided detailed written evidence as to the marketing strategies of the business, and his conclusion that an in-house Graphic Designer would be the most effective and economical means of creating and maintaining a distinctive brand for business, including in relation to its social media presence, as well as more traditional methods, such as the appearance of the bar, its menus, signage and print advertisements.
The Tribunal notes also that the applicant’s agent provided an example of an advertisement for an in-house Graphic Designer for another chain of sports-related bars in Melbourne. While this advertisement was presumably for a group of bars, and not just a single establishment, as with the present applicant, the Tribunal is nevertheless satisfied that the applicant has identified a genuine need for the nominated position within its business. It is further satisfied that the duties in the employment contract largely correspond to the ANZSCO occupational description for a Graphic Designer, although it considers that the nominated position may also involve some of the duties of 2 other occupations listed in the same Unit Group, being Multimedia Designer and Web Designer, given Mr Ganley’s evidence that the nominated position is responsible for maintaining the social media profile of the applicant’s business via its website, Facebook page and Twitter account.
In conclusion, the Tribunal is satisfied that the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified in IMMI 15/091; namely, Graphic Designer.
In relation to the training requirement, the Tribunal is satisfied that the applicant’s business has now operated for over 12 months, and that it must meet the training requirements specified in the relevant instrument, in this case IMMI 12/062. In summary, this requires that the applicant satisfies 1 of the following 2 training benchmarks:
·Training Benchmark A – recent expenditure, by the business, to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or
·Training Benchmark B - recent expenditure, by the business, to the equivalent of at least 1% of payroll of the business, in the provision of training to employees of the business.
The applicant’s agent has submitted that the applicant met Training Benchmark B for the purposes of being approved as a Standard Business Sponsor earlier in 2016, having spent $18,070 on employee training for the most recent financial year. The financial information provided by the applicant lists the wages (payroll) figure for the most recent complete financial year (2014/15) as $222,627. The Tribunal is satisfied that 1% of this amount is $2,226.27. The Tribunal is satisfied that the recent expenditure by the applicant on training to employees exceeds 1% of its payroll.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alison Mercer
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position 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 in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2016] AATA 4505

10 October 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction