1509954 (Migration)

[2016] AATA 3627

1509954 (Migration) [2016] AATA 3627 (31 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sero Learning Pty Ltd ATF Sero Assets Unit Trust

CASE NUMBER:  1509954

DIBP REFERENCE(S):  BCC2014/3325003 BCC2015/2152935

MEMBER:Lesley Hunt

DATE:31 March 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 31 March 2016 at 5:06pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 July 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).

2. The applicant applied for approval on 4 December 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the tasks to be performed in the position did not correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3.

5. The applicant appeared before the Tribunal by telephone on 9 March 2016 to give evidence and present arguments.

6. The applicant was represented in relation to the review by its registered migration agent.

7. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)

9. 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.

10. The Tribunal has a copy of the Departmental file which contains the application for approval of the nomination and a number of supporting documents.  The Tribunal is satisfied that the application was made on the approved form and accompanied by the fee prescribed in r.5.37.

11. The application was submitted on 4 December 2014.  Written certification in relation to s.245AR(1) is therefore not applicable.

12. The applicant, Sero Learning Pty Ltd as Trustee for Sero Assets Unit Trust, was represented at the hearing by Mr Prashan Patel.  Mr Patel (the applicant) provided the following information in response to questions from the Tribunal.

13. The applicant stated that he is one of the company’s three directors and its Chief Executive Officer.  He advised that the company has been operating since 14 April 2014 and commenced operations in Kingaroy Queensland.  He stated that the head office is located in Southport and a new office and campus has recently opened in Cairns.  Sero Learning Pty Ltd offers face-to-face and on-line teaching and is a registered training organisation providing educational courses.  It also assists graduate students seeking employment. 

14. The applicant stated that the business has grown exponentially since opening in 2014.  They initially opened in Kingaroy as their market research showed that major cities have a lot of competition; however rural areas lacked education and training services.  Generally, the only education service provider in the regions is TAFE.  The directors saw a market opportunity and opened in Kingaroy.  The business there serviced the region from Kingaroy to Dalby and the business grew successfully.  The business has a future in providing educational and training services in various parts of regional Queensland.

15. The applicant stated that they showed a net profit of $495,000 in the financial year 2014 to 2015.  In the current financial year their profit to 22 February 2016 is $8.9 million before tax.  They have been able to expand and recently opened a campus in Cairns as their market research shows there is a need for a competitive provider in that region. 

16. The applicant clarified that the business advertised for the position of Office Manager in November 2014.  They interviewed seven applicants.  They found the nominee to be highly qualified and experienced.  Other applicants had relevant qualifications but less experience.  A key factor in choosing the nominee is that she indicated that she is willing to relocate to other areas; whereas all other persons interviewed wanted employment in or around Kingaroy – in the South Burnett region.  The applicant stated that the nominee’s willingness to relocate is essential as they need a person who is willing to move with the business.  The applicant clarified that he did not know the nominee personally prior to interviewing her for the nominated position.

17. The applicant stated that the nominee is currently living in Canberra and is willing to move to Cairns which is where they have recently opened a campus and where they want the nominee to set up and manage the office.  The applicant clarified that they have not filled the position with another person and he has been doing the work of office manager along with his other responsibilities as CEO and Director.  He clarified that the nominee will work under his direct supervision as CEO of Sero Learning Pty Ltd.

18. The applicant submitted a Certification by a Regional Certifying Body, the Chamber of Commerce and Industry Qld, Mackay, dated 8 December 2014.  The certification indicates that there is need for a paid employee in the nominated position within the business activities of the nominating employer; the nominated position cannot be filled by an Australian citizen or Australian permanent resident living in the same local area as the nominated position; and the terms and conditions of employment applicable to the nominated position are no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same location.

19. The applicant submitted a signed employment contract and other documents setting out the duties and responsibilities of the office manager and the terms and conditions of employment. The contract specifies that the nominated position is directly accountable to the CEO.

20. The Tribunal asked the applicant why the certification was from the Chamber of Commerce and Industry, Mackay and Central Coast given the contact address provided for the business is in Kingaroy.  He responded that he did not know why and he would ask his representative to explain as the representative managed the application. 

21. In a written response, dated 10 March 2016 the representative stated that he applied to the Chamber of Commerce in Toowoomba “as this is the same region of your office at the time of application located in Dalby.  The application was internally transferred from the Toowoomba Chamber of Commerce to Mooloolaba Chamber of Commerce”.  The Tribunal has some concern about this process, given that the contact address of the nominating business on the application form is in Kingaroy, not Dalby, and given that Kingaroy is located in the region covered by the Sunshine Coast Chamber of Commerce and Dalby is in the region covered by the Toowoomba Chamber of Commerce.  The form 1404 gives the details of the Chamber of Commerce, Mooloolaba yet the covering letter is from the Chamber of Commerce and Industry Qld, Mackay and Central Coast.  Whilst this has raised a concern for the Tribunal, it is noted that the legislation at cl.5.19(4)(h)(ii)(F) refers to a body specified by the Minister and located in the same State or Territory as the location of the position.  As there is no requirement in the legislation that the Regional Certifying Body be from the same region within the same State or Territory as the nominating business, the Tribunal accepts that the Certification is valid for the purpose of the nomination. 

22. The Tribunal is satisfied that the application identifies a need for the nominator to employ a paid employee to work in the position of Office Manager under the nominator’s direct control. 

23. Accordingly, the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

24. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

25. The nominator, Sero Learning Pty Ltd Trading as Trustee for Sero Assets Unit Trust provided evidence of their Australian Business Number, Trust Tax Returns, bank statements and Business Activity Statements lodged through the Tax Agent Portal in 2014 and 2015.  The Tribunal is satisfied on the evidence that the nominator is actively and lawfully operating a business in Australia and directly operates that business. 

26. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

27. 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. 

28. The Tribunal notes the organisational chart, the profit and loss statements, the Business Activity Statements, the employment contract and other documents on file.  There is no information before the Tribunal to indicate that the nominator is involved in hiring labour to other unrelated businesses.  The Tribunal is satisfied that the nominated position is within the business activities of the nominator and is not for hire to other unrelated businesses. 

29. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

30. 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 employment contract is for a period of four years with an option to renew.  The applicant confirmed at the hearing that the nominee is to be employed in the nominated position for four years with an option for further employment at the end of the contract period. 

31. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

32. 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.

33. The employment contract indicates a base rate of pay of $55,000 per annum.  It is stated that this salary was derived at through research of advertised market salary rates on the same terms and conditions as offered to the nominee.  Examples of other advertisements for similar positions in the same region were submitted.  At the hearing the applicant indicated that no other office managers are employed by the nominating business; however other staff are employed as managers with the business.  They are paid at similar rates and enjoy the same terms and conditions of employment as that specified in the employment contract for the nominated position.

34. After assessing the evidence, the Tribunal is satisfied that the nominated employee is engaged to work as an Office Manager on an employment contract under terms and conditions that are 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.

35. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

36. 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. 

37. There is no information before the Tribunal about the nominator or a person associated with the nominator that is adverse as that term is defined in the legislation. 

38. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

39. 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.

40. The term “satisfactory compliance” is not defined in the legislation and the words are given their dictionary meaning.  There is no information before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with workplace relation laws in the locations in which it operates a business and employs staff. 

41. Accordingly the Tribunal is satisfied 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)

42. 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 13/030), 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.

43. At the time of application the position and the nominator’s business were located in Kingaroy which is located in regional Australia.  At the time of this decision, due to an expansion of the business, the head office of the business is located in Southport and the office and campus where the nominated position is to be based is located in Cairns.  Both Southport and Cairns are located in regional Australia. The Tribunal is satisfied that the position and the nominator's business are located in regional Australia. 

44. Chamber of Commerce and Industry Queensland has completed a Form 1404 certifying that there is a genuine need for the paid position which cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area.  The employment contract and the applicant’s evidence at the hearing indicate that the position is under the nominator’s direct control.  Evidence was provided of attempts by the applicant to fill the position with an Australian citizen or permanent resident. 

45. The position is that of Office Manager.  ANZSCO states at 51211 that Office Managers organise and control the functions and resources of offices such as administrative systems and office personnel.  The level of skill is commensurate with the AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill level 2), and at least three years of relevant experience may substitute for the formal qualifications. 

46. ANZSCO describes the tasks of the Office Manager as including:

    ·Contributing to the planning and review of office services, and setting up priorities and office service standards

    ·Allocating human resources, space and equipment

    ·Assigning work to and monitoring work performance of staff

    ·Managing records and accounts of the office

    ·Liaising with professionals to coordinate office business and to facilitate resolution of problems

    ·Managing physical facilities and ensuring buildings and equipment are maintained

    ·Ensuring compliance with occupational health and safety regulations

    ·Ensuring work complies with relevant government legislation, policies and procedures

    ·Coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision

47. In refusing the nomination, the delegate found that the Organisational Chart indicated that the nominated position had no staff reporting directly to the Office Manager and therefore the position will not have the responsibility of delegating work or mentoring, coaching and/or disciplining sub-workers.  In addition, the delegate noted that there was no indication that an office team was being developed. 

48. However, at the time of this decision it is apparent on the evidence that the business has expanded and relocated since the time of the delegate’s decision.  There is now a head office in Southport and a campus and office in Cairns.  The nominated position is to be located in Cairns and will be involved in setting up the office and managing the ongoing work of that office.  In support of this claim the applicant has provided profit and loss statements for the financial years 2014 and 2015; evidence of leased premises in Cairns from 10 February 2016 to 9 February 2018 with an option for renewal; relevant professional indemnity and public liability insurance cover; and a list of 3,800 enrolled students. 

49. The applicant stated that the business is transferring employees to the Cairns office and it is envisaged that there will be 13 employees located there.  The applicant clarified that a lot of the training staff are casual employees; however there are 2 trainers, 1 tutor, 2 data entry staff, an administrator and a receptionist to be employed permanently in the Cairns office.  He clarified that the campus manager will manage all trainers and tutors and the campus manager and other staff are all accountable to the office manager.  He clarified that the campus manager, administrator, receptionist, and data entry staff are all directly accountable to the office manager.  An updated organisational chart was submitted as evidence in this regard. 

50. The applicant stated that the Office Manager will report to the CEO and will establish standards and procedures for the Cairns Campus and Office.  The office manager will be responsible for monitoring, mentoring and managing the office staff, will correspond with Head Office about the design and review of office systems, is responsible for cost efficiencies in the Cairns office, and ensuring that the office and training facilities operate in compliance with relevant legislation.  After assessing the evidence the Tribunal is satisfied that the tasks to be performed in the position correspond to those at ANZSCO skill level 2. 

51. Accordingly the requirements of r.5.19(4)(h) are met.

52. 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

1. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

   Lesley Hunt
   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).