BARTON INTERNATIONAL COLLEGE PTY LIMITED (Migration)

[2022] AATA 2178

BARTON INTERNATIONAL COLLEGE PTY LIMITED (Migration) [2022] AATA 2178 (9 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  BARTON INTERNATIONAL COLLEGE PTY LIMITED

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  1825340

HOME AFFAIRS REFERENCE(S):          BCC2017/4496968

MEMBER:Glenn O’Brien

DATE:9 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 09 June 2022 at 2:45pm

CATCHWORDS
MIGRATION–nomination –genuine need to employ a paid employee to work in the position– no adverse information– position associated with the nominated occupation is genuine – applicant was approved as a standard business sponsor–applicant lawfully operating a business in Australia– decision under review set aside

LEGISLATION

Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, 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 Home Affairs on 15 August 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 28 November 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

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

4. The applicant provided the Tribunal with a copy of the delegate’s decision record with the application for review. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because the delegate was not satisfied the applicant demonstrated a need to employ a paid employee to work in the position under the nominator’s direct control.

5. Mr Zhou a director appeared before the Tribunal on 4 June 2021 to give evidence and present arguments. Mr Zhou was assisted in the hearing by an interpreter in Mandarin.  The Tribunal also received oral evidence from the nominee, Ms Nguyen.  The Tribunal provided a further seven days for the applicant to make post hearing submissions which were received on 11 June 2021.  These submissions have been carefully considered by the Tribunal in the review.

6. The applicant was represented in relation to the review.

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 Direct Entry nomination stream set out in reg 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: reg 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 an identified person as a paid employee to work in the position under their direct control.

10. Based on the evidence before the Tribunal, the Tribunal is satisfied the nomination application was made using the relevant online form. Consistent with reg 5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. In completing the application, the required certification in relation to

    
    

    s 245AR(1) of the Act and the required identification of a need to employ a paid employee to work in the nominated position under the nominator’s control was provided in the application form.

11. Accordingly, the requirement in reg 5.19(4)(a) is met.

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

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

13. The applicant business was established on 12 May 2015.  The applicant provided various financial documents to the Tribunal.  Those documents indicate the applicant business is operating at a loss as follows:

Financial Year	Income	Loss Before Tax
30 June 2017	$1,005,834.91	$165,589.07
30 June 2018	$1,831,016.70	$282,982.32
30 June 2019	$1,975,230.63	$599,592.45
30 June 2020	$1,122,503.45	$314,090.97

1. Mr Zhou told the Tribunal that he acquired the business in 2018 and it had been heavily impacted by COVID-19 and international travel restrictions which had resulted in a significant downturn in international student arrivals.  Mr Zhou however indicated the business had adapted to the challenges and had focussed domestically, assisting students already in Australia.

2. Notably, Mr Zhou told the Tribunal the business was well placed given the closure of similar businesses which would enable to applicant to capitalise once business returned to some normality in terms of international student arrivals.

3. Mr Zhou also indicated that there was a number of initiatives which assisted the business including free English classes, and a study tour programme.  These however are also affected by COVID-19 and current travel restrictions.

4. Mr Zhou told the Tribunal that he has lots of assets in China and can inject cash into the business as necessary.  In post hearing submissions the applicant provided the Tribunal a number of documents including further written submissions, business activity statements and bank statements evidencing payments to the nominee from 29 June to 14 December 2021.

5. It is evident that the applicant has been affected by COVID-19 and the closure of Australia’s international borders to international students.  Mr Zhou however told the Tribunal that the business has successfully restructured and has focussed on the domestic market.  Evidence of enrolments was provided to the Tribunal.

6. While it is finely balanced, the Tribunal is satisfied that despite the operating losses, the business has sufficient resources in the form of loans to continue to lawfully and actively operate in Australia.

7. Accordingly, the requirement in reg 5.19(4)(b) is met.

   Position is not labour hire: reg 5.19(4)(c)

8. 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. 

9. The Tribunal has considered the position description and an employment contract between the applicant and the nominee initially made on 3 November 17 and confirmed on 18 March 2021.  The nominee is employed on a full-time basis as a marketing specialist.

10. Accordingly, the requirement in reg 5.19(4)(c) is met.

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

11. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

12. The Tribunal had regard to the evidence of Mr Zhou which indicated the nominee will be employed for a minimum of two years after the date of the grant of her Subclass 186 visa. Further, the Tribunal had regard to the financial records provided to the Tribunal in its annual reports and the fact that the applicant has continued to meet the full-time salary of the nominee since at least 2017.

13. The Tribunal is satisfied that there is no information before the Tribunal that the applicant would not be in a financial position to employ the nominee for at least two years.

14. Accordingly, the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

15. 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.

16. The applicant’s current salary increased to AUD$80000 plus superannuation. 

17. Market research provided by the application confirms the proposed salary is within the range of salaries for equivalent positions in the same or similar location.

18. In considering the evidence before the Tribunal, the Tribunal is satisfied the nominee’s terms and conditions of employment are no less favourable that those that are, or would be offered to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

19. Accordingly, the requirements of reg 5.19(4)(e) are met.

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

20. 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 regs 1.13A and 1.13B.

21. There is no information before the Tribunal to indicate there is any adverse information known to the Department about the nominator or person associated with the nominator.

22. Accordingly, the requirements of reg 5.19(4)(f) are met.

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

23. 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.

24. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia.

25. Accordingly, the requirements of reg 5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

26. 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 that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 15/083], the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

27. The Tribunal had regard to the evidence of Mr Zhou in relation to the nominee’s role and the tasks of the marketing specialist.

28. The Tribunal considered the genuineness of the position associated with the nominated position. In Cargo First Pty Ltd v MIBP [2016] FCA 30, the Court upheld (at [34]) the Tribunal’s approach of qualitatively assessing the position comparing this with the occupation nominated in order to determine it was genuine.

29. The nominated position is not located within regional Australia. The duties of the nominated position of Marketing Specialist (ANZSCO 225113) correspond to those of an occupation specified by the Minister in the relevant instrument and set out in Unit Group 2251 as follows:

    UNIT GROUP 2251 ADVERTISING AND MARKETING PROFESSIONALS

    
    ADVERTISING AND MARKETING PROFESSIONALS develop and coordinate advertising strategies and campaigns, determine the market for new goods and services, and identify and develop market opportunities for new and existing goods and services.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Tasks Include:

    oplanning, developing and organising advertising policies and campaigns to support sales objectives

    oadvising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services

    ocoordinating production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints

    oanalysing data regarding consumer patterns and preferences

    ointerpreting and predicting current and future consumer trends

    oresearching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information

    osupporting business growth and development through the preparation and execution of marketing objectives, policies and programs

    ocommissioning and undertaking market research to identify market opportunities for new and existing goods and services

    oadvising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels

    
    Occupations:

    225111 Advertising Specialist
    225112 Market Research Analyst
    225113 Marketing Specialist

    
    225113 MARKETING SPECIALIST
    
    Alternative Titles:

    Marketing Consultant
    Marketing Coordinator
    Marketing Officer

    
    Identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services.

    Skill Level: 1

30. The key responsibilities set out in the nominee’s position description include:

    • Planning and implementation of marketing.
    • Brand management.
    • Analyses of market trends and recommendations for marketing and business development strategies based on analysis and feedback.
    • Prepare marketing strategies with other company executives and staff.
    • Develop and leads a marketing team that will develop and execute new concepts, business models, channels and partners to position business as innovator and leader.
    • Identify and optimize outcomes from opportunities to enhance the reputation of Barton locally and internationally, including business development opportunities: articulation agreements, nurturing.
    • networks with industry associates, pathway institutions, and other staff.
    • Coordinate marketing events including meetings, speaking engagements, seminars, trade shows and exhibits with agents or other relevant agencies.
    • Develop marketing literature, ensuring valid, current and accurate content is used for all marketing activities.
    • On occasion, organise and conducts overseas trips for client interaction and agent networking.
    • Seek out new target markets, and develop plans to address them.
    • Manages the marketing team and to actively pursue and acquire student enrolments to meet budget forecasts.
    • Liaise and network with stakeholders that includes customers, colleagues, suppliers and partner organisations.
    • Source advertising opportunities across a range of mediums.
    • Manage and maximise outcomes and engagement from social media.
    • Manages the production of marketing materials, including leaflets, posters, flyers, newsletters, enewsletters and DVDs.
    • Organise and attend educational events, such as conferences, seminars, receptions and exhibitions.
    • Evaluate marketing campaigns, measure and monitor results and manage marketing budgets.
    • Monitors competitors’ activities.
    • Ensures that all marketing activities comply with the standards and regulations of accrediting bodies.

31. While the Tribunal considers the role of the nominee includes tasks not consistent with the nominated position, based on the evidence of Mr Zhou and having regard to the tasks of a Marketing Specialist as set out in ANZSCO, the Tribunal is satisfied that the tasks of the nominated position with the applicant predominately correspond to the specified occupation of Marketing Specialist (ANZSCO 225113) and that this is specified as a Skill Level 1 position. 

    Training benchmarks

32. The applicant provided evidence of its most recent standard business sponsorship approval (SBS), or substantive evidence in relation to training expenditure during the relevant periods.

33. The training benchmarks are set out in Schedule A of the relevant instrument as:

    The training benchmarks for an established business are:

    (A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.

    OR

    (B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

34. The applicant provided written submissions detailing payroll and expenditure on training, including TAFE. 

35. There may be slight differences in relation to the actual periods for which the payroll and training expenses have been made, however, they are a reasonable indication of the amounts expended.

36. Having carefully reviewed the applicant’s hearing submissions and supporting invoices, the Tribunal is satisfied that the training obligations pursuant to its last SBS approval have been met for each 12-month period during the course of the approval period.

37. Accordingly, the requirements of reg 5.19(4)(h) are met.

38. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Glenn O’Brien
    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.

    …

    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 an identified person, as 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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (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 the person identified under subparagraph (a)(ii), as 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 specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (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).