AB TRADING CORP PTY LTD (Migration)

AB TRADING CORP PTY LTD (Migration) [2022] AATA 2968 (26 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  AB TRADING CORP PTY LTD
REPRESENTATIVE:  Krishlyn Chetty
CASE NUMBER:  1905937
HOME AFFAIRS REFERENCE(S):          BCC2018/5459291
MEMBER:Namoi Dougall
DATE:26 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 26 August 2022 at 5:13pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – medium-term stream – management consultant – genuine position – nominee related to company directors – need for position in small company and position’s consistency with ANZSCO – inapplicability condition – occupation not applicable in business with fewer than 5 employees – tasks of position – many tasks done by director, not nominee – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72(8), (10)(a), 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
CFMEU v Personnel Contracting Pty Ltd [2022] HCA 1
ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2

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 Home Affairs on 21 February 2019 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 5 December 2018. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific 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. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg.2.72(10)(a) because the delegate was not satisfied that the position associated with the nominated occupation was genuine. In particular, the delegate was concerned that the nominee was related to the directors of the applicant and about his migration history. Further, the delegate referred to the nominated position of Management consultant being an occupation usually performed in organisations with complex structures, systems and procedure that would require such analysis. The delegate then referred to the applicant employing only 6 employees and there is no evidence to demonstrate how the position is consistent with ANZSCO.
Mr Chakar El Samad a director of the applicant appeared before the Tribunal on 16 June 2022 to give evidence and present arguments. The hearing that was arranged for the 14 June 2022 was postponed until 16 June 2022. The Tribunal also received oral evidence from Mr Samer El Samad, the nominee.
The applicant was represented in relation to the review.

BACKGROUND

The business nomination application indicated that the nominee would be employed as a Management Consultant (ANZSCO 224711) on an annual salary of $100,000 for 38 hours at the applicant’s business in Granville, in Sydney NSW. The annual turnover of the business was stated to be $1,468,866. Further, the applicant indicated in the business nomination application that the applicant has 6 employees, five of whom are foreign. In a letter as to the genuineness of the position dated 1 March 2022, the applicant stated that it is an import and export business, and it deals with buying and selling of fruits and vegetables. The applicant started operations in 2015.
At the hearing Mr El Samar stated that the applicant has been trading for the past 7 years an Australian based export company which specialises in exporting fruit and vegetables. Summer season fruit including peaches, nectarines, grapes, citrus and carrots and many other items. The business has a seasonal chart which they follow and what they exports depends on what is available each month. Ninety per cent of their suppliers are Australian growers and the remining 10 per cent are sourced from the local markets in Sydney. They mainly sourced the items from the growers as they are a perishable items. The suppliers they use depends on the season and climate conditions as well as how strong the local market is here, that is the availability of product and prices. The business has a large number of overseas customers mainly in the middle East and Gulf region including: UAE; Saudi Arabia; Oman; and Qatar.
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 applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.

The nomination must comply with the prescribed process

Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in reg 2.73.
The Tribunal has had regard to the material in the Department’s file and is satisfied that the applicant has nominated an occupation under s 140GB(1)(b) of the Act and has identified in the nomination a Subclass 482 visa applicant, Mr Samer El Samad as the person who will work in the occupation as required by regs 2.73(1) and (8). The nomination was made using the approved form and the fee has been paid as required by regs 2.73 (3),(4) and (5). The nomination includes the location of Granville, in Sydney, NSW, at which the occupation will be carried out and includes the name, 6‑digit ANZSCO code of the occupation of Management Consultant (ANZSCO 224711), the proposed period of stay of up to 2 years and the annual turnover for the nominator of AUD1,486,866 as required by reg 2.73(9). The nomination does not apply in the Labour Agreement stream and the occupation is for a Medium-term skilled occupation in the Medium-term stream as required by reg 2.73(6).
The nomination includes written certification that:
·The person has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Act.
·The employment contract with the nominee complies with or will comply with Commonwealth and State or Territory Laws unless the occupation is exempt as required by reg 2.73(13).
·The tasks of the position include a significant majority of the tasks specified in the ANZSCO or the relevant instrument if there is no ANZSCO code; that the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or the relevant instrument if there is no ANZSCO code; and, unless the occupation is exempt, the person is in the person’s business, if they are or would be an overseas business sponsor, or, the position is in the person’s business or an associated entity’s business, as required by reg 2.73(14).
The application fee was paid by the applicant and there is nothing on the Department’s file to indicate that the nomination training contribution charge has not been paid. Therefore, the Tribunal is satisfied that the requirements of reg 2.73(5A) have been met.
For these reasons, the Tribunal is satisfied the requirements in reg 2.72(3) are met.

Specified occupation

Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, IMMI 18/048. The occupation must also apply to the nominee in accordance with the instrument.
The nomination has nominated the nominee in the application for the occupation of Management Consultant (ANZSCO 224711).
In the circumstances of this case, the relevant instrument, IMMI 18/048, states the occupation of Management Consultant (ANZSCO 224711) is not applicable for Subclass 482 visa purposes for persons who will work in positions where:
19          The position is in a business that has an annual turnover of less than AUD1,000,000.
21          The position is in a business that has fewer than 5 employees
23          The position has nominated annual earnings of less than AUD90,000
At the hearing Mr El Samad stated that he employed 5 employees and that Mr Sinan El Samad is a full time contractor who is responsible for all of the logistics. Mr S El Samad is also a shareholder. The nominee is the operations manager; Mr Jbara as the business development manager and accountant; Ms Lama Chaker who is responsible for administration and accounts. Mr El Samad confirmed that Mr S El Samad is a full time contractor who gets paid a weekly salary to his nominated ABN account. The Tribunal referred to that information suggesting he is not an employee and asked if the applicant withheld Mr S El Samad’s tax and Mr El Samad stated that the Tribunal would have to ask their accountant Ms El Hadad.
At the hearing, Ms El Hadad stated that the payroll is run through Xero and it is lodged through single touch for those who are on a weekly pay. There are 4 employees on the payroll run through Xero and one is paid weekly though an ABN. Mr Sinan El Samad is paid about $1,500 weekly and that has been happening for about 3 years. As a contractor Mr Sinan is responsible for his own taxation payments. In relation to the other 4 employees the company withholds tax on their behalf.
The Tribunal at the hearing discussed when a position is not applicable for a Subclass 482 visa, in particular, inapplicability condition 21 and that the evidence suggests that Mr Sinan El Samad may not be an employee of the applicant but rather a sub-contractor. The Tribunal agreed to allow the applicant through its the representative to provide a submission on this issue after the hearing.
On 1 July 2022, the representative provided a submission to the Tribunal. It was submitted that the applicant employs 5 employees including Mr Sinan El Samad who is full time and is being pay a regular amount of $1,500 into his nominated bank account. It was further submitted that he paid on an ABN because he elected to be paid this way and that he is referred to as a ‘full time contractor’ only because he is responsible for his own taxes.
The submission then goes on to refer to: Construction, Forestry, Maritime Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd [2022] HCA 1, where the High Court of Australia on appeal held that it is relevant to consider the terms of the contract between the parties in question when determining if a party is a contractor or an employee. It was also submitted the similarly, in ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 the High Court clarified that to determine if a party is an employee or a contractor, only the rights and duties under the contract must be considered; “it is immaterial how a relationship has been labelled. The submission then stated:
We submit that Mr Sinan El Samad’s employment with AB Trading Corp Pty Ltd entails him driving and transporting fruits and vegetables for a 38-hour week for which he is paid a regular wage of $1500 into his nominated bank account. This work arrangement or term of the contract regarding Mr Sinan El Samad’s duties make evident that he is an employee of AB Trading Corp Pty Ltd and not a contractor.
Provided with the submission was a ‘Payable Invoice Detail’ for the period 1 July 2019 to 30 June 2022 which indicates that the applicant pays Mr Sian El Samad $1,500 weekly the dates of payment are referred to ‘invoice date’ and the ‘source’ is referred to ‘payable invoice’. Also provided was a job description for Mr Sinan El Samad. However, despite the submission’s emphasis on the terms of a contract no written contract or further detail as to the terms and conditions of the contract was provided, so the Tribunal is not able to assess whether Mr Sinan El Samad is restricted from taking other contracting jobs or employment or how much direction the applicant provides to him when he is picking up and delivering fruit and vegetables. The ‘Payable Invoice Details’ makes it clear that he invoices the applicant for his work and that he, and not the applicant, is responsible for paying tax on the amount paid to him. Further, there is no information in the applicant’s financial statements from the financial year ending 30 June 2019 to 30 June 2022 that indicates that the applicant provides Mr Sinan El Samad with a vehicle to do his work. On balance, the Tribunal is not satisfied that Mr Sian El Samad is an employee of the applicant and, therefore, inapplicability condition 21 is relevant to this review as the Tribunal is satisfied that the applicant employs fewer than 5 employees.
The submission did state that the Mr Sinan El Samad could be employed full time on a non-contractual basis ‘if that will assist the Tribunal’. However, the Tribunal is concerned that any change of status of employment would only be done on a temporary basis to satisfy this criteria, as: the applicant and Mr Sinan El Samad did not change his ‘employment status’ when the Tribunal raised this issue at hearing; Mr Sinan El Samad has been a contractor and paid on this basis since 2015; and no written contract or any more detail on the terms and conditions of Mr Sinan El Samad’s ‘employment’ have been provided. Further, any change to Mr Sinan El Samad’s employment status should be done as it reflects or better reflects the contractual arrangements between him and the applicant or his employment status and not to ‘assist the Tribunal’.
For these reasons the requirements of reg 2.72(8) are not met.

Position must be genuine and full-time

Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
Provided to the Department and Tribunal was an Employment Contract dated 3 July 2018 which was updated on 1 July 2021 signed by the director Mr *** and the nominee. Attached to the employment contract was a position description which stated:
Main responsibilities:
Business Analyst within AB Trading Corp Pty Ltd is responsible for leading the improvement strategy for the organisation and implementing solutions to achieve financial growth.
Duties:
·Primary responsibility is helping businesses strategies and implementing solutions in a cost-effective manner
·Leading and managing new contracts by developing new features, data services and marketing services offerings
·Gathering and defining business and contracts requirements to facilitate the communication between Ab Trading and its stakeholders, partners and clients
·Responsible for delivering solutions, including training sessions for all stakeholders
·Collaborating and managing all the exportation for companies and clients
·Responsible for analysing contracts, business procedures and requirements and providing a proper documentation for each of them
·Developing new offers for all regions
·Identifying and evaluating inefficiencies and recommending optimal business practices, and system functionality and behavior
·Acting as a central reference and information source, providing guidance and assistance in the system project decision making process
·Creating documentation and proposals.
At the hearing the Tribunal asked Mr El Samad what he did in the business and he stated he oversees all of the operations and systems that have been put in place by the nominee to ensure they are all working in good order. The Tribunal asked what the systems were that the nominee put into place and Mr El Samad stated that starting from claims’ policies and procedures, implementing terms and conditions for each customer, updating profit margins, analysing the strength of markets during the current period and working to accommodate current conditions. That is introducing or updating systems to work in the current market because fruit prices and availability change every day due to supply weather, freight and COVID make logistics difficult. The business is very risky, and things have to be updated on a weekly basis, for example profit margin. The nominee updates during slow periods to ensure costs are being covered and to ensure supply is there and prices are correct. This means the nominee has to be on the phone constantly to customers checking on availability of product overseas, how strong the market is locally and overseas and ensuring a plan is in place for purchasing enough product over the year. He checks on availability of product and strength of the market on that day or during that week. He also tries to improve the profit and systems in place to meet the current situation.
At the hearing the Tribunal asked what systems the nominee is constantly improving and Mr El Samad that they were systems that ensured the business is operating profitably. He explained that fruit prices change daily, and someone has to be very precise in working out prices and setting up programs for the whole season taking into account the margin that needs to be considered on the produce for the season. After further questioning Mr El Samad stated that the nominee does not work out the pricing he works out the system that calculates the pricing. The Tribunal then asked why the business needed the nominee to continually change the system when he has worked in the business for more than a year and, it appeared, that he only changed prices and availability but not the system. The Tribunal then reframed the question and asked, Mr El Samad, if the nominee changed the system or if he changed the data that is entered into the system. Mr El Samad stated that the nominee does not just change the data he checks the systems are working and that the company is working efficiently. He solves problems as well, whenever there is a problem in the system or in the way the company is operating, he solves it. He introduced a claim policy procedure which changes from customer to customer depending on the type of customer. He has other systems for each aspect of the companies work. The policies and procedures do not need to be changed but he has to update them if they need to be. The last time he changed a policy and procedures was at the beginning of the COVID-19 pandemic and the end of COVID-19 pandemic.
At the hearing the Tribunal asked what the nominee tasks were apart from policies and procedures and Mr El Samad said apart from claims he has to deal with freight, Mr Sinan El Samad is responsible for logistics within Australia. The nominee is responsible for freight internationally which requires him to deal with the freight companies. Mr El Samad stated that to export fruit the company has to go through an agent who deals with the airplanes. He sets up a procedure for the airline agent in a way that they receive the product from the grower and the procedure is followed from when the product comes to their facility to when it is sent overseas.

At the hearing Mr El Samad stated that the nominee follows up customers, as well as, suppliers and sets up supply programs for the whole season including the number of containers for the whole season and works out with freight companies how achieve his seasonal plan. The Tribunal asked if Mr El Samad was saying that the nominee calculates how much product he needs from the suppliers to provide to his customers and how he gets that product from the suppliers to the customers. Mr El Samad stated that the nominee achieves this by speaking with the suppliers, customers and freight companies. The nominee oversees and runs all of the management of the company with the other employees. This involves making sure the accounts are up to date checking payable and receivable accounts and whether there are problems with customers and suppliers overseas accounts. The nominee checks that the system is working and changing the procedures such as terms for payments to suit the current situation. In relation to payroll, he checks the payroll system to ensure that everyone is paid fairly and correctly as in an annual employee review. The nominee overseas the local logistics to ensure being done correctly. Mr Sinan El Samad is a driver who handles the transportation on a daily basis of fruit from the market to the freight company. He also ensures that the fruit and vegetables arrive in a good condition to the freight company. The nominee ensures that the transport company or logistic company that picks up the product from the grower and takes the product to the freight company does so in a precise professional way. This means the fruit has to be delivered on time with temperature control and that the temperature control is maintain the whole journey.
At the hearing, Mr El Samad stated that his role in the business is to oversee the systems and work the nominee does and makes sure it is working properly. He also gives the nominee advice if his system is not as efficient as it is supposed to be. Mr El Samad confirmed that the nominee reports to him. Mr El Samad stated that he is more involved with another business he also runs. The nominee works out pricing after negotiating with suppliers and customers and he then he provides the pricing to Mr El Samad who only questions it if he sees something that he thinks is wrong. The nominee does the daily pricing particularly for freight sent by air and Mr El Samad concentrates on the sea freight. Mr El Samad confirmed that he reviews and approves the pricing. Sometimes they speak daily and sometimes weekly and sometimes they don’t discuss the pricing at all as there is a calculation system that is used, and he just uses that systems. They only talk when the nominee needs to do something other than the system such as changing price more to suit the situation such as during the COVID-19 Pandemic the margin needed to be higher than previously, and the market needed to be monitored on a daily basis instead of weekly basis.
At the hearing Mr El Samad stated in relation to complaints management that it is shared between them. The business is approached by many new customers from overseas and he handles that. The nominee handles complaints, depending on how big the complaint is, they will discuss the complaint if it is a big complaint. Similarly, for suppliers, the nominee usual solves any issues but if he cannot Mr El Samad steps in. The nominee supervises the employees and Mr El Samad becomes involved when there is a problem. Mr El Samad is responsible for hiring and firing of employees.
At the hearing the Tribunal discuss with Mr El Samad the tasks for the unit group 2247 Management and Organisation Analysts and that these tasks are ones that are usually done by an external consultant who comes in to observe, research an organisation’s systems and procedures and who then gives advice on how to improve the organisation’s structure, systems and procedures and it is up to the organisation as to whether they implement that advice as the consultant then moves on to another consulting job. The Tribunal referred to the use of the term client in a number of the tasks.
At the hearing, the nominee stated that the buisness exports perishable goods which requires precise handling. The business has to work perfectly with everyone doing their job. They export to Middle East and in Australia they have growers and suppliers, and they have logistic including freight forwarders who are responsible for looking after the perishable items which have been purchased for suppliers and they make the bookings with airlines. They have to make arrangements with airlines and are responsible for all documents. The documentation includes documents that the produce is Australian produce. There are 4 types of documents which are approved by Australian government including airline bill or sea bill, commercial invoice stamped by either the Arab or the Australian Chamber of Commerce, Certificate of Origin and the customers approval documentation. He has a system in place to ensure that they both know everything is functioning. The stock is checked in, temperature control maintained, and they do the documents and send the produce to airport on time. This all happens on his instructions which are in the system he has set up. Another task is to liaise with the freight forwarder when there is a claim from a customer in the Middle East due to delay in flights or transits, they then have to find a solution with the airlines.
At the hearing, the nominee referred to growers and agents and that they have a large range of suppliers depend on air perishable which is dealt with differently from the fruit and vegetables sent by sea. The fruit and vegetables are ordered based on the needs of clients overseas. When he receives an order, he liaises with the growers as to what they have, quality and price, based on the best offer he buys it. It is then sent to Sydney and freighted overseas although some product also goes from Melbourne or Perth airports. After he places the order, he follows up with logistics to ensure products are sent on time, in good condition and kept at the right temperature.
At the hearing, the nominee stated that he also makes sure that the fruit is received by the freight forwarder on time, so the flight is not missed because there may be no more space on another flight for 3 to 4 days as happened during the COVID-19 pandemic. The nominee ensues that the growers’ invoices match what was ordered, and the price agreed. In relation to sea freight he is helped by Mr Chakar El Samad as it is more complicated and requires more effort. For example, some freight is stuck in ports for 2 to 3 weeks which effects the containers following. The growers pack at the farm and do all the documentation. He receives a report on what produce will be available from which port over the next few months and he decides what vessel to use, based on its arrival and departure.
At the hearing, the nominee stated that most clients are from the Middle East and he communicates daily during the season from October to February as this is their busiest time as summer fruits are available in Australia but not many other places in the World. He, therefore, has to follow up with customers 2 to 3 times as week as to what is available as their customers have customers themselves. Depending on what is available, they place orders and freight the fruit. Depending on what the customers wants he calculates the prices and once, the price and quantity of the required produce is confirmed then he arranges freight. The nominee has set up a system online for claims and every shipment has a copy of the claim procedures and the customer has to follow the procedure to submit a claim. He looks at the details of the claim and once he has investigated the claim, as to where the mistake was made and who is responsible, then it is finalised. It can take 2 to 3 weeks to finalise.
At the hearing the nominee stated that the company has a payment terms sometimes 2 weeks, 28 days and in some cases their clients pay up front. During the COVID-19 Pandemic it was hard to obtain payments which were sometimes paid late. If there is a problem with logistics, he tries to solve the issue which may need the system to be updated. He may have to change a system to help the employees do their job. He confirmed that he is responsible for policies and procedures.
A lot of his job is based on management analysis of issues such as when the COVID-19 Pandemic required changes.
At the hearing the nominee stated he works with Mr Sinan El Samad he works with him daily to ensure that he received delivery from growers on time and that the produce is delivered on time to airport and checked in by freight forwarders and put in cool storage. After the nominee checks the the invoices for quantity and price received from growers, he emails the invoice to Mr Jbara stating the price and quantity is confirmed and asked him to put it into the accounting system. Mr Jbara checks accounts receivable and accounts payable and the nominee overseas and that the invoices are matched, he also helps the nominee with claims and puts that into the system in order to issues a credit note to client or to receive a credit note from airline or suppliers. Ms Charker looks after administration and accounts and she ensures payments are made on time from clients or to clients. She follows up with the banks and ensures credit notes are issues. She also does all of the data entry into the systems. He supervises staff on a day to day basis.
In relation to pricing Mr El Samad approves the nominee’s calculation on spread sheet for the pricing based on the freight rate and cost of goods. Mr El Samad always checks the prices going out and if anything is wrong, he checks with the nominee particularly price changes.
At the hearing the Tribunal asked when he last changed a policy and procedures, the nominee stated that the start of the COVID-19 Pandemic the company had to increase margins to cover costs as freight costs had dramatically increased. The number of shipments went down so they pushed the profit up as much as the clients could afford. They are just going to recheck this policy in October once summer season starts. He has found some support from government for exporters which is decreasing since the end of the COVID-19 Pandemic and he is working with the Chamber of Commerce to see what is best for clients. There is a World Cup happening in Qatar which is one of their biggest regions for sales, so he is meeting with Qatar airlines to ensure they have space locked in during this period. When a problem happens such as during a busy season, they make a small changes, such as before the COVID-19 Pandemic the certificate of Origin had to have a physical stamp of Origin then it became an online stamp but then, after COVID-19 Pandemic ended, Qatar wanted a physical stamp once more, so the system had to change again.
In considering the nature of the position and the tasks to be performed in the position, and whether they correspond with the tasks of the occupation of Management Consultant, which is specified in the relevant instrument, the Tribunal has had regard to the information set out in ANZSCO (Australia and New Zealand Standard Classification of Occupations) for that occupation. The tasks for the Unit Group 2247 Management and Organisation Analysts are set out below. Provided to the Tribunal after the hearing was a submission in which the applicant’s representative matched the nominee’s tasks listed in the Unit Group and the Tribunal has, under each ANZSCO task set out in the Unit Group, referred to nominee’s tasks the representative submits are relevant to each specific ANZSCO task.
The two occupations listed under the Unit Group 2247 are Management Consultant and Organisation and Methods Analyst. Further,”.
In relation to the indicative skill level, ANZSCO states that:
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)
A Management Consultant analyses a business’ systems and structures so that they can, as ANZSCO states: “assists organisations to achieve greater efficiency and solve organisational problems. The use of the words, client and clients and the nature of the task themselves suggest that a business brings in a Management Consultant as an external resource to provide advice and recommendations that are one off and which the business may choose whether or not to implement. There may be businesses whose scale and complexity of structure and systems may require the employment of a Management Consultant, however, the applicant is small operation based in one location in Sydney with only 4 employees and one contractor.
The ANZSCO tasks for the nominated position (as a heading), the representatives allocation of the nominee’s tasks under each of ANZSCO tasks for the nominated position (dot points) and the Tribunal assessment is as follows:
1.     assisting and encouraging the development of objectives, strategies and plans aimed at achieving customer satisfaction and the efficient use of organisations' resources
·Sets up supply programs in relation to fruit and vegetables for a whole season.
·Calculates the quantity of products required and work out freight costs with freight companies.
·Coordinates the logistics from growers to freight company by ensuring that packaging and temperature control procedures are in place.
2.     discussing business and organisational shortcomings with clients
·Adjusts payment terms changes from time to time as required by market demands.
3.     analysing and evaluating current systems and structures
·Evaluate, prepare reports and advise in relation to cost and pricing for export of products by air.
·Discuss pricing and costing with director as and when required and performing any adjustment as approved by the Director.
·Collaborating and managing all the exportation for companies and clients
4.     discussing current systems with staff and observing systems at all levels of organisation
·Overseas and manages current systems to ensure they are working with other staff members such as overseeing client accounts being up to date, invoices issued, payables, receipts any problems with customers and suppliers.
·Provide solutions and manage any problems with customers and suppliers efficiently.
5.     directing clients towards more efficient organisation and developing solutions to organisational problems
·Provide strategies and solutions in relation to how the company can export its products in the most costeffective manner.
·Provide strategies and solutions in relation to purchasing products at the best market price and good quality for export.
6.     undertaking and reviewing work studies by analysing existing and proposed methods and procedures such as administrative and clerical procedures
·No nominee task was provided by the representative for this task.
7.     recording and analysing organisations' work flow charts, records, reports, manuals and job descriptions
·Preparing and recommending proposals to revise methods and procedures, alter work flows, redefine job functions and resolve organisational problems
·Preparing periodic reports in relation to products, exports, costs and profits to ensure the business is operating at a favourable position.
8.     assisting in implementing approved recommendations, issuing revised instructions and procedure manuals, and drafting other documentation
·Redefining the business in accordance with market demands.
·Recreate contract requirements when needed to facilitate the communication between AB Trading and its stakeholders, partners and clients.
9.     reviewing operating procedures and advising of departures from procedures and standards
·Advising on new procedures once any changes are made to general operations relating to products, pricing, costings and communication with suppliers.
The Tribunal recognises that the nominee has a managerial role but many of the final decisions in relation to pricing and any major customer relations tasks such as confirming new customers and major complaints are dealt with by the director, Mr El Samad.
The nominee’s tasks claimed to relate to the ANZSCO task 1, 2,3 5, 7 and 8 are primarily operational and not strategic. They involve the use of procedures or systems that are already in place to ensure that the product sold by the business reaches the customer on time and in good condition and that the price obtain for that product ensures that the business is profitable. This includes, together with Mr Chaker El Samad and Mr Sinan El Samad, ensuring that all the logistics are in place to move the product from the supplier to the customer, including resolving any logistic problems, payments are made and received and complaints are dealt with.
Specifically, in relation to ANZSCO task 5 above, it was submitted that the nominee provides strategies and solutions in relation to: how the company can export its products in a cost effective manner; and purchasing products at the best market price and good quality for export. However, on the evidence the nominee’s primary task is to monitor the costs of the product and delivery costs and ensure that those are taken into account when the produce is costed appropriately so the applicant, which is changing the data used to cost the product appropriately and not the system itself, which is operational and not strategic. Further, as part of this primary task, the nominee is to obtain the best market price and quality of product, which is also operational. To express it another way, using the language of ANZSCO task 5, taking into account the flux of prices for product and logistics and ensuring the best possible price for product and logistics are not tasks that are directed towards a more efficient organisation or developing solutions to organisational problems. They are part of the applicant’s everyday business and do not change the structure or the systems of that business.
Specifically, in relation to ANZSCO task 7 and 8, these tasks are not just about ‘recording and analysing an organisation’s work flow charts, records, reports, manuals and job descriptions’ or ‘assisting in implementing of approved recommendations, issuing revised instructions and procedure manuals, and drafting other documentation’, as doing these tasks are to assist “organisations to achieve greater efficiency and solve organisational problems”. Regarding the second dot point under ANSZCO task 7, it was submitted that the nominee prepares periodic reports in relation to products, exports, costs and profits to ensure the applicant operates at a favourable position and similarly the first dot point under ANASCO tasks 8, it was submitted that the nominee redefined the business in accordance with market demands. In relation to these submissions, the Tribunal makes the same points it made in the paragraph immediately above. These tasks are not tasks that are directed towards a more efficient organisation or developing solutions to organisational problems. They are part of the applicant’s everyday business and do not change the structure or the systems of that business.
The second dot point under ANZSCO tasks 8 as to recreating contract requirements to facilitate communication between the applicant and all of its stakeholders is a commercial task done at an operational level. However, this task and those submitted to be the nominee’s tasks under ANZSCO task 8 and 9 could relate to the nominee’s role of developing or improving procedures such as introduction of an online claims procedure, the change from the use of a physical to an online certificate of Origin and then changing back again, and adjusting payment terms to suit different customers. However, with the exception of the online claims procedure, the adjustments are more in line with price adjustments to maintain a profit margin or are limited in scope such as changing the method a document was provided.

The Tribunal is satisfied that the nominee has made change to the applicant’s contracts and online claim procedure, however, the majority of the applicant’s tasks do not align with the tasks listed in ANZSCO for the reasons stated above. Therefore, on the above the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
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.

Namoi Dougall
Member

ATTACHMENT - Extracts from the Migration Regulations 1994

2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

This regulation applies in relation to a person who:
(a)is any of the following:
(i)       a standard business sponsor;
(ii)      a person who has applied to be a standard business sponsor;
(iii)     …
(iv)    …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
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.
The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…

(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;

the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

However, the Minister may disregard the fact that one 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.
The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii) …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i)       a short term skilled occupation; or
(ii)      a medium and long term strategic skills occupation; and
(b)either:
(i)       the 6-digit ANZSCO code for the occupation; or
(ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i)       the person who nominated the occupation;
(ii)      the nominee;
(iii)     the occupation;
(iv)    the position in which the nominee is to work;
(v)     the circumstances in which the occupation is undertaken;
(vi)    the circumstances in which the nominee is to be employed in the position.
The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.

(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii) it is reasonable to disregard any such information.
However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii)      it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii) it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
…

[2022] AATA 2968

26 August 2022

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