AIC Support Pty Ltd (Migration)

[2021] AATA 403

AIC Support Pty Ltd (Migration) [2021] AATA 403 (18 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AIC Support Pty Ltd

CASE NUMBER:  1731361

DIBP REFERENCE(S):  BCC2017/1291101

MEMBER:Ian Berry

DATE:18 January 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 18 January 2021 at 10:41am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination – Corporate General Manager – previous employment of the nominee – nominee’s absence from Australia – performance of tasks via internet communications – ANZSCO role description – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 27 November 2017 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 6 April 2017. 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 the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations for the following reasons:

   a.According to the applicant’s PAYG payment summary concerning Mr Kusafuka, for the fiscal year ending 30 June 2017 he received a gross income of $97,000.00

   b.The applicant nominator nominated the nominee Mr Kusafuka (the nominee) for the position of Corporate General Manager (ANZSCO 111211).  The nominee’s remuneration was $180,000.00 at the time of the applicant making its application on 6 April 2017. An increase of $91,479.50.

   c.The delegate noted that the total wages and salary for 2015 was $273,362.00 and for 2016, $283,778.00.

   d.The delegate noted for the fiscal year 2015, the applicant sustained a loss of $46,330.00 which would put undue pressure on the business of the applicant to sustain the manager for two years given that there ‘has been no explanation or supporting documents to support the substantial increase’ of that salary.

   e.Additionally, the financial information before the delegate did not demonstrate that the applicant’s business has the financial capacity to provide full-time paid employment and superannuation contributions for the nominee for a minimum period of two years given the significant increase in salary.

   f.The delegate also reports:

   ‘In addition, I have noted that the reported wages expenditure of $292,588.45 for 1 October 2015 to 30 September 2016 appears to be a little low considering the nominators claims that the nominating business employs a total of 7 employees as declared on the application form.’

5. The applicant appeared before the Tribunal on 5 May 2020 to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s sole director and shareholder Mr S Kusafuka.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end. The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.

6. The applicant was represented in relation to the review by its registered migration agent Mr H Zandi MARN 1279378 of Go Australia Group Pty Ltd. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Background

9. Mr Kusafuka is the sole director and shareholder of the applicant and is the nominee for the position of corporate general manager. Presently, he holds a 457 visa, which he was granted on 9 March 2017.

10. He confirms that he is the only director and shareholder and does have other directorships and shareholdings including AIC Japan L.L.C. (AIC Japan) of which he is a director. The applicant was registered in 2005. Firstly, establishing its office in Brisbane; Perth in 2007; Gold Coast, Melbourne and Cairns in 2012.

11. AIC Japan is a Japanese corporation having a contractual relationship with the applicant by contract dated 1 July 2016. The applicant pays AIC Japan $15,000.00 each month via bank transfer in consideration, AIC Japan to provide business support to the applicant consisting of:

    a.Creation and updating a website for recruiting customers in Japan.

    b.Creation and updating of materials for providing counselling in Japan.

    c.Training of Japanese staff to provide counselling in Japan. Preparation of quotes for Japanese customers.

    d.Arranging schools, courtesy transport and accommodation for Japanese customers.

12. There is no evidence of AIC Japan and the applicant having any other financial relationship relevant to the issues in this case.

13. The applicant has entered other contractual relationships for it to provide ‘on the ground’ arrangements for the applicant to provide services on behalf of Japanese based companies involving educational and homestay, for which the applicant receives remuneration.  Similar contractual arrangements have been made with a health insurer by introducing customers to its database for which it receives a commission. Other businesses contributing monies for information be included in the applicant’s brochures. The applicant provides to its clients homestay arrangements where clients are placed in Australian homes.

14. The applicant’s organisational chart submitted to the Department  has the nominee as the general manager at the head with branches in Melbourne Brisbane, Gold Coast, Sydney, Perth and Cairns. The Melbourne branch is under the control of a 457-visa holder while Brisbane and the Gold Coast employ Australian permanent residents. The Sydney branch is under the control of a visa applicant on a working visa and the Cairns branch is under the control of the student visa employee. The nomination application states the applicant employs three Australians, four foreign employees. Of the foreign employees, two are temporary business/ organisation entrants and of those foreign workers, one is an overseas student and the other, a working holiday maker.

15. Financial position

    Previous employment of the nominee: r.5.19(3)(d)

16. Broadly speaking, to meet the requirement in r.5.19(3)(d), either:

    ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

17. The applicant’s movement records reflect the applicant’s nominee, in the three years immediately before the making of the nomination application on 6 April 2017, lived in Australia for 184 days out of 1095 days (three years), the details of which are:

Arrival	Departure	Days in Australia
22-Jul-14	25-Aug-14	108
29-Jun-15	17-Jul-15	18
20-Jul-15	22-Jul-15	2
20-Jun-16	01-Jul-16	11
15-Jul-16	29-Aug-16	45
29-May-17	03-Jun-17	0
184

1. On 20 October 2020, the Tribunal invited the  applicant, in writing, (under s.359A of the Act), to provide  comments or information as set out:

   ‘The particulars of the information are:

   ·For the three-year period relevant to the applicant’s nomination application (between 5 April 2014 and 6 April 2017), the nominated visa applicant has spent 110 days in Australia.

   This information is relevant to the review because regulation 5.19(3)(c)(i)(B) requires the applicant to employ the nominee in the position of Corporate General Manager for a total period of two years in the three-year period immediately before the nomination application (not including any period of unpaid leave) and the nominee’s employment in that position has been both full-time and undertaken in Australia.

   If we rely on this information in making our decision, we may consider that the time the nominee spent in Australia in that three-year period, is less than the required two years. If the Tribunal considers that the nominee has been in Australia for a period less than the required two years under regulation 5.19(3)(c)(i)(B), then it may re in the delegate’s decision on the applicant’s nomination application being affirmed.’

2. Regulation 5.19(3)(c)(i)(B) requires the applicant’s nominee to be employed full-time in Australia. The information description refers to the need for the applicant’s nominee to be employed for two years in the three-year period which refers to r.5.19(3)(c)(i)(A). Essentially, both regulations require the applicant’s nominee to be in Australia for at the least, two years before the applicant’s nomination.

3. The applicant responds to the s.359A written invitation by letter dated 20 September 2020 and unsurprisingly, refers to both rr. 5.19(3)(c)(i)(A) and 5.19(3)(c)(i)(B). The applicant does not deny the nominee spent that time overseas, but it does not make that concession. The applicant’s response relies on PAM3 which is set out:

   ‘Policy Guidelines

   6.  the policy guidelines (PAM3) provides further clarification in relation to period of time spent overseas performing work. PAM3 states

   Periods of time spent overseas performing work on behalf of the nominator may be considered as time actually worked provided:

   •the position description relating to the position (previous employment) specifies the possibility of overseas work

   •the nature of the role may require such work; and

   •the salary of the nominee was paid by the nominator during the period of overseas work.

   7.  As noted, PAM3 provides an exception for the period of employment spent overseas in that the nature of the role requires the nominees work overseas and the nominator continued paying the nominee for the period spent working overseas.

   8.  It is submitted that the nominee spent time overseas performing work on behalf the nominators, which was required by the nominator as part of the nominee duties and responsibilities for the purpose of managing the nominator's business.’

4. The applicant’s submission is underpinned by the following four headings:

   •The applicant’s sales process and commission;

   •Training counsellors in Japan;

   •Contribution to the Australian economy; and

   •AIC support in Australia

5. The Tribunal acknowledges the intent of these submissions which are matters not relevant to the issue other than the applicant’s involving the nominee is counselling  and the applicant’s sales process in Japan. The applicant also provides several documents which it believes supports the contention that the absence of the nominee from Australia fits the position description, the nature of the nominee’s role and the nominee salary continuing to be paid.

6. The Tribunal does not accept that contention. The nominee’s role of corporate general manager emphasises the nominee having control of the applicant’s direction through objectives, strategies, policies and programs. He is required to represent the applicant at official occasions, be involved in negotiations and attend conventions, seminars, conferences, public hearings and forums. However, the time spent away from his position in Australia is substantial. The applicant states that its manager can perform the great majority of his tasks via internet communications. However,  that argument applies equally to the manager being in Australia and communicating with his counterparts in Japan. After all, the applicant pays AIC Japan to undertake certain tasks in Japan the tasks of which are undertaking by AIC Japan for which it is paid. It follows that the applicant is not having its nominee undertaking the role of corporate general manager.

7. The applicant’s position description for the nominee’s position of corporate general manager is as set out in ANZSCO at the Unit Group1112:

   •determining objectives, strategies, policies and programs for organisations

   •providing overall direction and management to organisations

   •Authorising material, human and financial resources to implement organisational policies and programs

   •Monitoring and evaluating performance of organisations against organisational objectives and strategies

   •Consulting with senior subordinate staff and reviewing recommendations and reports

   • Preparing, or arranging for the preparation of, reports, budgets and forecasts and presenting them to governing bodies

   •Representing the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility

   •Selecting and approving the selection of senior staff

   •Ensuring the organisation complies with company laws and other relevant legislation.

8. At the Occupation level in ANZSCO 111211 Corporate General Manager ‘plans, organises, directs, controls and reviews the day to day operations and major functions of a commercial, industrial, governmental or other organisation through departmental managers and subordinate executives.’

9. The Tribunal notes that ANZSCO as detailed above is like but not identical with ANZSCO unit group and occupation is provided to the Department by the applicant with its initial submission.  However, the Tribunal is of the view that nothing turns on that difference.

10. The applicant’s 20 September 2020 submission states that the nominee’s absence from Australia is associated with his position as the corporate general manager.  ANZSCO refers to the nominee attending seminars and training, though that is a contractual obligation of AIC Japan, but there is no evidence supporting that contention in the light of the tasks required to be undertaking by the corporate general manager. 

11. Effectively, the applicant has the nominee is in Australia  for 184 days out of 1096 days, with the nominee outside Australia for 812 days.  The applicant has not provided an itinerary of the details of the nominee’s movements, the types of seminars attended or other information relevant to the purpose of the travel which may have shown the nature of the work undertaken by the nominee.  The Tribunal is not satisfied that of those 812 days absence from Australia, the nominee attended seminars and training. Moreover, the nominee’s presence overseas is more in line with supporting AIC Japan. For example, the applicant’s submission at paragraph 16, states:

    16. Further, the nominee was also required to provide training to staff members of the company's parent company in Japan in relation to overseas education, in particular, Australian education system. Please see attached Staff training manual (in Japanese, please advise if translation required).

12. Further, the applicant’s 20 September 2020 submission elaborates on this issue:

    As indicated in the nominator's statement, the nominee had to visit Japan more often between 5 April 2014 to 6 April 2017 to establish the business and train various staff. However, the staff were trained to conduct the required work, the nominee did not have to visit Japan so often. Therefore, after 6 April 2017, the nominee stayed in Australia for a longer period. During the last approximately three and a half year (6 April 2017 to current - 21/10/2020), the nominee has been out of Australia (mainly to visit Japan) for a total 228 days only.

    After 6 April 2017, the nominee has visited overseas (mainly Japan) during the following periods to conduct the stated work:

PERIOD OF OVERSEAS VISITS	NO OF DAYS IN JAPAN
24 November 2017- 2 December 2017	9
19 February 2017- 28 February 2018	10
7 April 2018 - 20 April 2018	14
16 June 2018 - 2 July 2018	17
23 August - 7 September 2018	16
2 October 2018 - 15 October 2018	14
November 2018	4
1 December 2018 - 18 December 2018	18
22 January 2019 - 7 February 2019	17
19 March 2019 - 5 April 2019	18
18 May 2019-30 May 2019	13
2 July 2019 - 19 July 2019	18
4 October 2019 - 1 November 2019	29
24 November 2019 - 11 December 2019	18
29 January 2020 - 10 February 2020	13
Total of number of days spent overseas from 7 April 2017 to Current	228

1. The Tribunal is satisfied that the applicant has paid the nominee’s salary while overseas.

2. The Tribunal is not satisfied the applicant has complied with r.5.19(3)(c)(i)(B) as the nominee has not been in Australia for at least two years out of the three years immediately before the making of its nomination application.

3. Given the above findings, the requirement in r.5.19(3) is not met.

4. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

   DECISION

5. The Tribunal affirms the decision under review to refuse the nomination.

   Ian Berry
   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

   (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

   (b)be accompanied by the fee mentioned in regulation 5.37.

   Temporary Residence Transition nomination

   (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

   (iii)     identifies an occupation, in relation to the position, that:

   (A)is listed in ANZSCO; and

   (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

   (b)the nominator:

   (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

   (ii)      is actively and lawfully operating a business in Australia; and

   (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

   (c)either:

   (i)       both of the following apply:

   (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

   (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

   (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

   (B)the employment in the position has been full-time, and undertaken in Australia; or

   (ii)      all of the following apply:

   (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

   (B)the nominator nominated the occupation;

   (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

   (d)for a person to whom subparagraph (c)(i) applies:

   (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

   (ii)      the terms and conditions of the person’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)       the nominator:

   (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

   (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

   (ii)      it is reasonable to disregard subparagraph (i); and

   Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

   (g)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

   (h)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.