DWORLD AUSTRALIA PTY LTD (Migration)

DWORLD AUSTRALIA PTY LTD (Migration) [2017] AATA 1594 (19 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dworld Australia Pty Ltd
CASE NUMBER:  1510946
DIBP REFERENCE(S):  BCC2015/656690
MEMBER:Alison Mercer
DATE:19 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 19 September 2017 at 12:31pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Nomination refusal – Direct Entry Nomination stream – Genuine need for a full time position – Marketing Specialist – Applicant provided further information on nominated position and plans for expanding business
LEGISLATION
Migration Act 1958, ss 359(2) s.375A s.245AR(1)
Migration Regulations 1994, r.1.13A r.1.13B r.5.19 r.5.19(4)(a) r.5.19(4)(b) r.5.19(4)(c)
r.5.19(4)(d) r.5.19(4)(e) r.5.19(4)(f) r.5.19(4)(g) r.5.19(4)(h)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 July 2015 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant, Dworld Australia Pty Ltd (trading as Century Inn, Traralgon) applied for approval on 1 March 2015. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a) of the Regulations because the delegate was not satisfied that the applicant had identified a genuine need for the nominated position of Marketing Specialist within the business. The delegate acknowledged the applicant’s submission that it would face increased competition from a Quest Serviced Apartments business that was about to open in the same area and thus wanted to engage a Marketing Specialist to be more competitive, but found no evidence had been provided to substantiate that this was the case.
The Tribunal received a review application on 12 August 2015. It was signed on behalf of the applicant by Mr Xiaomeng Wei, General Manager, and included a copy of the delegate’s decision and an authority appointing a registered migration agent, Mr Zhenyu Wang, as the applicant’s representative and authorised recipient for correspondence.
The matter was constituted to a Tribunal Member on 15 December 2016. On 20 January 2017, the Tribunal wrote to Mr Wei of the applicant, via the agent, pursuant to s.359(2) of the Act. The Tribunal requested that Mr Wei provide information demonstrating that the business met all of the relevant criteria in r.5.19(4) (including, but not limited to, the criterion the delegate had found was not met) by 3 February 2017. On 31 January 2017, the applicant’s agent sought an extension of time to respond to the Tribunal’s request and this was granted to 16 February 2017.
On 16 February 2017, the Tribunal received a submission from Mr Wei of the applicant together with extensive supporting documentation. Mr Wei made the following points (in summary):
·    the business had selected the nominee, Jason Sheen, to be employed full time as a Marketing Specialist, as he had the required skills and they had a genuine need for the position;
·    the business (trading as Century Inn) was established in 2011 and was located in Traralgon, near the Latrobe Regional Airport. Since 2015, it had faced increased competition in the area and needed a full-time Marketing Specialist to support the market function of the business, develop, establish and maintain marketing strategies to meet the business’ objectives, manage and implement these strategies and marketing and promotional activities and advertising, and manage positive relations with clients;
·    Mr Wei was the Manager of Century Inn but also managed 3 other hotels in Victoria. Given its regional location and its client base, Century Inn needed a full time Marketing Specialist. The position would report directly to the Director and would assist him to better manage market dynamics and master development trends;
·    Traralgon was an industrial district, with many large scale enterprises such as coal mining, power plants, aircraft manufacturing and the airport. Almost 80% of the residential clients in Traralgon were corporate clients. The clientele was mainly company staff and clients from other areas of Victoria, New South Wales or overseas who were visiting Traralgon for work purposes or conferences connected with the industries in the area;
·    many companies chose Century Inn for their staff as it had a good reputation for quality and service, and had a well-regarded and well-known restaurant (Terrence Café) that hosted conferences, wedding receptions and other functions;
·    the applicant had learned that a new serviced apartment business (Quest Serviced Apartments) would commence construction in late 2015 and would open in Traralgon in 2018. The applicant perceived that this would provide significant competition for its corporate business, as the Quest group operated franchises throughout Australia and was well-known and popular. It also marketed to corporate clients effectively. Therefore the applicant needed to have its own full-time Marketing Specialist to compete;
·    the position would be for 2 years with an annual wage of $54,000 plus 9.5% superannuation and the terms and conditions of employment would be no less favourable than the terms and conditions that would be offered to an Australian employee working in Traralgon as a Marketing Specialist;
·    as the applicant was located in regional Victoria, it was difficult to attract and retain qualified professionals such as Marketing Specialists, and the applicant had advertised the position on its website without success. It recruited the nominee after placing an advertisement in the local newspaper and interviewing a number of candidates;
·    the applicant provided training to local employees annually, including regular on-the-job training and some training provided by professional training organisations. Training was provided in room service, housekeeping, emergency response, maintenance and so on. In addition, the applicant had a training contract with an Australian trainee from May 2013 to May 2016. The applicant paid training costs of $12,622 (including GST) which exceeded 1% of the total company payroll for 2015/16 ($804,983);
·    the nominee Mr Sheen had been working in the nominated role on a part-time basis since 2014 and had shown a keen insight into marketing. He was experienced in undertaking market research, contributing to the annual sales and promotional activity planning and so on. He had good relationships with the media and advertising bodies and always came up with innovative ideas for marketing development; and
·    he undertook duties such as official website publicity, loyalty card promotion, organisation of festivals and events at the hotel, assistance with the hotel’s e-magazine and publicity in local magazines, websites and brochures, market analysis and report writing, drafting marketing plans and implementing them and cooperating with his colleagues.
The supporting documents provided included the following:
·    Regional Sponsored Migration Scheme Regional Certifying Body advice issued by the Victorian Department of Business and Innovation (Gippsland Regional Office) on 7 November 2014 in respect of the applicant and its nominated position;
·    certificate of incorporation and Australian Business Register entry for the applicant, dated 22 December 2011;
·    registration of business name (Century Inn) for the applicant, dated 16 May 2012;
·    Business Sale Agreement for Century Inn, between vendor C I Pty Ltd and the applicant (purchaser) dated 15 March 2012;
·    invoice issued to applicant for licence renewal with AAA Tourism (trading as Club Tourism Publishing), 28 October 2011;
·    tax invoices issued by APRA to the applicant for licence fees for copyright music, November 2011 and January 2012;
·    draft profit and loss statement for the applicant for 2010/11;
·    organisational chart for the applicant;
·    Business Activity Statements (BAS) for the applicant for 1 September 2015 to 30 September 2016;
·    annual report for the applicant for 2015/16 financial year;
·    salary search results for Marketing roles from website, indicating the median base salary was $53,000;
·    Payscale report for Marketing Officer salary indicating median salary is $52,536, as at 14 February 2017;
·    job advertisement from Seek.com.au for Digital Marketing Appointment Setting listed 11 February 2017 listing salary as $50,000 to $55,000 plus superannuation and commission;
·    employment agreement between the applicant and nominee dated 20 December 2016;
·    job description for position of Marketing Specialist with the applicant;
·    invoice for advertisements placed in Latrobe Valley Express paper for Marketing Specialist in July 2014;
·    statement by Mr Wei outlining recruitment attempts by the applicant to fill the position of Marketing Specialist, dated 8 October 2014, with attached resumes of the nominee and another candidate;
·    Australian Apprenticeship/Trainee Training Contract between the applicant and a named Australian citizen employee for a Certificate III in Hospitality (Commercial Cookery) to run between 20 May 2013 and 18 May 2016;
·    PAYG statement for above Australian trainee employee for 2014/15 financial year;
·    invoice from Integrity and Values Pty Ltd to the applicant on 17 June 2016 for training/coaching for $12,622;
·    competitor analysis for the applicant comparing other Traralgon hotels/conference venues;
·    PAYG statement for the nominee for the 2015/16 financial year;
·    Century Inn guest satisfaction survey;
·    copy of Wedding Planner 2016/17 magazine featuring advertisement for Century Inn;
·    competitor analysis for the applicant of events venues in the local areas;
·    information about the impending construction of Quest Serviced Apartments in Traralgon;
·    advertisement for ‘French Friday’ at the Terrace Café at the applicant;
·    Latrobe Valley Tourism listing of dining out options in Traralgon, featuring the Terrace Café;
·    e-newsletter by Destination Gippsland, 2017, and Latrobe Valley Conference, Events & Functions Guide, featuring the applicant;
·    evidence that the applicant is one of a number of corporate sponsors of the Traralgon Tennis Association;
·    Quest Apartment Hotels website extracts indicating a 4 storey serviced apartment building is to be built in Traralgon in late 2015;
·    copies of various loyalty cards issued by the applicant;
·    marketing plan for the applicant, undated; and
·    promotional material for the applicant for Mother’s Day, Valentine’s Day specials and so on.
On 5 July 2017, the Tribunal wrote to Mr Wei via the agent to invite Mr Wei (or another authorised officer of the applicant company) to attend a hearing on behalf of the applicant on 29 August 2017. The Tribunal requested that any further documents and/or submissions in support of the case be provided to the Tribunal by 22 August 2017, and that the nominee, Mr Jason Sheen, be available to give evidence at the hearing as a witness.
On behalf of the applicant, Mr Wei appeared before the Tribunal on 29 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Jason Sheen. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Mr Wei told the Tribunal that his company now operated 5 hotels – Century Inn in Traralgon, the Waverley International in Glen Waverley, City Edge in Box Hill and 2 in Docklands, being the Sebel Hotel and the Sebel Residencies (the latter 2 being operated as franchises in the Accor Hotel chain, while the remainder were independent enterprises). He took over the Century Inn in 2012, at which time it had been operating for about 10 years and had recently been expanded to go from 17 to 49 rooms, and added a restaurant (the Terrace Café) and a function centre. Mr Wei confirmed that he is the Chief Executive Officer (CEO) of Dworld Pty Ltd and so responsible for all its venues. Between 2012 and 2014, he was primarily based at Century Inn in Traralgon as he lived there and it was the first hotel business the company purchased. Since 2014, the company had acquired the other hotels listed above.
Mr Wei provided several updates to the organisational chart previously provided to the Tribunal but confirmed that it is essentially the same structure at Century Inn and mostly the same employees. Although Mr Wei was the General Manager, he said that he could no longer spend much time on Century Inn due to his other business interests, and therefore he relied on the 2 Hotel Managers, the Head Chef and the nominee, as Marketing Specialist, to run the business there.
Mr Wei confirmed that he employed the nominee as a Marketing Specialist in mid-2014. Prior to that, there was another person who undertook marketing activities. This was the wife of the couple who previously owned Century Inn and who had sold it to Mr Wei’s company. Mr Wei said that the wife had a lot of contacts with local networks through her previous ownership interest, but that he felt that it was important for him to hire someone whose focus would be on building new networks and contacts for the business as well as maintaining existing ones. Mr Wei said that Century Inn is located about 7.5kms out of the Traralgon town centre so they needed to make concerted efforts to ensure that they remained prominent in the consciousness of locals and visitors. He also indicated that he was unable to concentrate on this role as he was developing the company’s other businesses. None of the existing staff at Century Inn had marketing experience.
Mr Wei said that he advertised locally but it was not easy to find suitably qualified people who were willing to live in a regional area. He was introduced to the nominee, Mr Sheen, by mutual contacts, and selected him as the better of 2 suitable candidates. In relation to the other candidate, Mr Wei said that he was local but did not have formal marketing qualifications. In contrast, Mr Sheen had formal marketing qualifications, was willing to relocate to Traralgon from Melbourne and spoke Mandarin (as well as several other languages). In response to the Tribunal’s query, Mr Wei said that his first language is Mandarin, so it helped him to able to speak this with Mr Sheen, but also, Century Inn had visitors from China and other Asian countries due to its location in the Latrobe Valley and its industrial and resource operations. Mr Wei said that the Latrobe Valley is twinned with a city in Fujian Province in China, and there were visitors to Traralgon for this reason as well, which he had actively encouraged through his involvement with the Council.
In response to the Tribunal’s query, Mr Wei confirmed that the Quest Serviced Apartments development in Traralgon was expected to open in May 2018, and would provide significant competition to Century Inn, particularly as Century Inn was an independent business while Quest had networking and customer databases for Australian and New Zealand. Mr Wei said that Quest would be in addition to Century Inn’s existing main competition, Bridges on Argyle in the city centre of Traralgon, which had recently expanded. Another potential competitor to Century Inn was likely to arise because of the fact that a parcel of land opposite Century Inn was currently for sale and had been zoned so that it could be set up as a hotel/convention centre. All of these factors meant that it was crucial for Century Inn to market itself assertively to retain and if possible expand its market. Mr Wei emphasised that even if the nominee, Mr Sheen, was not able to continue in the role, he would have to fill the role with someone else, as it was a crucial role for Century Inn. The situation for Century Inn was serious.
The Tribunal discussed the business’ financial statements with Mr Wei. Mr Wei said that when he bought the business in 2012, the turnover was about $2.6 million and that it remained pretty good in the 2013/14 financial year because as new owners, they worked really hard to maintain it. There was a slight downturn in the business turnover in 2015/16 as Bridges on Argyle and a new conference centre provided competition. There was some improvement in the 2016/17 financial year because they had been working very hard on marketing and sales. However, the turnover is not yet at $3 million, which was the aim by now in the 2012 business plan. Mr Wei said that the pressure was still on the business.
In response to the Tribunal’s query, Mr Wei confirmed that the nominee is still employed on a part-time basis. He said that this was due to the uncertainty of the nominee’s visa status. The Tribunal queried why it would accept that the business had a genuine need for a full time position of Marketing Specialist if the position had been able to be filled adequately on a part-time basis since 2014. Mr Wei said that the nominated position involved a broad suite of responsibilities, involving the need to do analysis and prepare reports, and to visit rival businesses to compare services and rates offered. At present, other employees did some of this work to relieve the nominee. The nominee’s hours were variable; at present, it was ‘tender time’ and the nominee needed to work full-time hours to provide rates tenders to existing and potential customers, such as the local power stations, Gippsland Dairy and the local hospitals, so that these organisations kept Century Inn in mind for booking functions and conferences. Mr Wei confirmed that the competitor reports provided to the Tribunal were compiled by the nominee through the nominee’s research.
When asked why Mr Wei had hired the nominee over another applicant in 2014, Mr Wei said that the nominee spoke Mandarin (and a number of other Asian languages) and that this was useful as the nominee could communicate with Mr Wei in Mr Wei’s first language. It was also an advantage because Mr Wei had Chinese clients visiting and staying at Century Inn. Mr Wei told the Tribunal that personnel from Shanghai Coal had visited the Latrobe Valley and other Chinese investors had visited. In addition, the Latrobe Valley had a Chinese sister city, Taizhou, and Mr Wei had a strong link with the Latrobe council to assist with bringing interested visitors from Taizhou to the Valley.
The Tribunal asked Mr Wei about the marketing budget for the business. Mr Wei said that Ashlee, the CFO, sets the marketing budget, although he would sign off on it. He undertook to provide this information to the Tribunal after the hearing as he said that it was a percentage of the total revenue but he could not remember the current budget amount specifically. He clarified that the nominee is advised of the annual budget and asked to operate within it. He said that, as the business had grown so rapidly, it had not yet developed standard operating procedures such as producing an annual marketing report or a formal business budget document. Mr Wei said that a lot of the nominee’s work was done by telephone and therefore there was not a lot of written documentation produced by him. In response to the Tribunal’s query, Mr Wei said that he could not perform the duties carried out by the nominee himself as he simply did not have the capacity to do so, given that Dworld Pty Ltd now owned and operated several other hotels in metropolitan Melbourne which were Mr Wei’s responsibility to oversee. He emphasised that even if the nominee was not able to be granted a visa, the business would still need a Marketing Specialist for Century Inn.

In response to the Tribunal asking about whether there was any adverse information known about the business in relation to migration or workplace relations, Mr Wei said that a previous receptionist at Century Inn had made a stress-related claim to WorkCover but that this had been settled. The Tribunal then put information it held to Mr Wei pursuant to s.359AA of the Act. Specifically, the Tribunal advised him that there was adverse information, in the form of a dob-in allegation, on the Department’s file, and that it was the subject of a s.375A certificate, which prevented the Tribunal releasing that document to Mr Wei or his agent. The Tribunal provided a copy of the s.375A certificate to Mr Wei and his agent, and noted that it appeared to be valid to the Tribunal. The Tribunal further noted that in line with existing case law authority, it intended to provide the gist of the certified information to Mr Wei for his comment or response.
The Tribunal then indicated to Mr Wei that in March 2015, the Department received information from a person who advised the Department that the applicant was employing a number of Asian employees at The Waverley International Hotel who were sponsored as Managers but who were housekeeping or waiting staff who were employed on minimal shifts each week (rather than full time) and who were paid less than the minimum wage. The Tribunal explained that it considered that this information was relevant to the decision under review as it indicated – subject to Mr Wei’s comments or response – that his company was employing people in one arm of its business in a way which breached migration law and workplace relations laws. It further advised that if it formed this view, then it might conclude that similar practices were occurring in other arms of the business, including Century Inn, and it might therefore conclude that the nominated position was not genuine. The Tribunal stated that if it formed this view, then it would mean that the applicant would not meet one or more subparagraphs of r.5.19(4) (such as (f), (g) and/or (h)), and this would be a reason to affirm the decision under review. The Tribunal confirmed with Mr Wei and his agent that they understood the information and its relevance. It asked Mr Wei if he wished to respond immediately or request additional time to do so. The Tribunal adjourned the hearing for Mr Wei to consult with his agent. On resumption of the hearing, Mr Wei indicated that he wished to make an initial response at the hearing, but to also provide a more detailed written response after the hearing. The Tribunal agreed to this. Mr Wei said that he believed that the information provided to the Department came from a disaffected ex-employee of his business, who had threatened Mr Wei if he was sacked. Mr Wei said that FairWork Australia and Department officers did visit the Waverley International Hotel at the beginning of 2017, and a second time later in the year. He said that he would write to the Tribunal post-hearing to explain this in more detail.
The Tribunal then took evidence from the nominee, Mr Sheen. Mr Sheen said that his previous job was at a manufacturing business in Melbourne but this business went into liquidation. Around the same time, he was introduced to Mr Wei through colleagues, as the latter was looking someone to undertake the marketing role for Century Inn, and Mr Sheen had majored in Marketing at university. Mr Sheen said that he was willing to relocate to the Latrobe Valley for the role as he was otherwise unemployed. He estimated that he currently worked 38 hours per week but noted that it did vary. He had been with Century Inn since mid-2014. Mr Sheen said that his work changed depending on the season and time of year. He gave an example of the fact that during the school holidays, he made efforts to boost leisure travellers to choose Century Inn with attractive packages, as there were few corporate bookings or customers during these periods. Another example was that Century Inn was linking with Morwell Council in relation to providing packages for an upcoming Magritte art exhibition, and had previous done the same for the AGL Junior Tennis competition. Mr Sheen said that the latter had worked very well and generated many visitors.
In response to the Tribunal’s query, Mr Sheen identified the biggest rival for accommodation business as Bridges on Argyle, as it had a pool whereas Century Inn did not. However, he believed that Century Inn provided better service as it was committed to differentiating itself from its competition by value-adding in the area of customer service. He also noted that Century Inn’s Terrace Café was well regarded, and was a point of difference between it and Bridges on Argyle. Mr Sheen told the Tribunal that the Terrace Café had now finished its ‘French Fridays’ promotion, which it had run for 2 years, and was about to implement a new promotion based on a Chef’s selection. This was aimed (as the previous promotion had been) at getting local customers to visit the Café on weekends and Friday nights.
In relation to the marketing budget, Mr Sheen said that it was about $20,000 per year. He identified word of mouth as the most effective marketing tool for the business, and also the cheapest. He said that he ran surveys to assess customer sources and views, and this reinforced that word of mouth advertising was most effective. Mr Sheen confirmed that the business has also advertised via flyers, mail outs, advertisements in the local papers and TV and radio. The latter advertising was the most expensive, and they had suspended it after finishing French Fridays. However, Mr Sheen would reconsider further TV and/or radio advertising once the Chef’s selection program was in place and they received more feedback from customers on it.
Mr Sheen said that he compiled the competitor reports by researching competitors on Trip Advisor and by ringing them to check rates and so on He confirmed that it was an advantage that he spoke Mandarin (amongst several other languages) as the Latrobe Valley attracted many overseas visitors (many of whom were Chinese) who were looking for investment potential. He confirmed that as he currently holds a bridging visa, Mr Wei has not formally employed him on a full-time basis but would do so once he is granted permanent residence. He estimated he has been effectively working full time hours since February 2017, although he used some of the hotel’s other staff to undertake data collection, such as taking names and contact details from business cards left by guests. Mr Sheen further confirmed that he did a lot of work contacting existing and potential clients by telephone, as this was a more personal way of communicating with people than by email or letter. He said that he runs reports to generate the names of regular guests, then he will ring them (individuals or organisations) to approach them with corporate offers to gain or retain their loyalty.
The Tribunal indicated that it would be assisted by the provision of any documentary evidence of other reports or marketing activities undertaken by the nominee, further information about the marketing budget and Mr Wei’s written response to the s.359A information after the hearing.
On 8 September 2017, the Tribunal received the following additional documents from the applicant’s agent:
·statement from Mr Wei, in which he states that he is the Chief Executive Officer of Golden We Australia Pty Ltd and Dworld Australia Pty Ltd, and addressing 2 previous investigations of Golden We Australia Pty Ltd by the Fairwork Commission. Mr Wei states that in the over 5 years since Golden We Australia Pty Ltd was established, it had been compliant with regulations and legislation and all its employees were paid according to the Hospitality Industry (General) Award 2010. He acknowledges, however, that there had been a few dealings with the Fair Work Ombudsman but these had resulted in findings clearing the company. One case was in 2015, when as casual Chef who was dismissed due to poor work performance and unacceptable behaviour towards other team members claimed that the company had not paid correct remuneration to staff. This case was dismissed after the Fair Work Commission found that the allegations were unfounded. The second case involved a visit by a Fair Work inspector for subclass 457 monitoring on 12 April 2017, who undertook a random check on a subclass 457 visa holder employee (not the nominee). On the inspector’s request, payslips for the employee were provided and the company was questioned as to why the employee’s annual leave payment had not been processed by then. It was explained that the employee had personally requested that her salary payment due on 27 March 2017 be her last pay until she let the company know when she could return to work. That was subject to her visa approval. Nevertheless, on the inspector’s request, the company processed the employee’s final payment (that is, annual leave payment). On 27 April 2017, the company received an email from the inspector indicating that he was satisfied with the explanation given and the action taken by the company, and nothing further was required to be done. Mr Wei states that the above was a genuine account of what had happened and reiterated Golden We Australia Pty Ltd was a law abiding organisation with a vision of becoming a leading hotel management company for 4 star hotels and serviced apartments in Australia;
·marketing quotes provided by email by the nominee to clients and marketing advertising activity email correspondence between the nominee and the operators, variously dated between April 2017 and August 2017; and
·profit and loss budget for 2017, showing advertising and promotions costs.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal is satisfied, from the material on the Department’s file, that the application was made on the approved form, no prescribed fee is payable as the nomination relates to a position located in regional Australia, and (as this application was made prior to 14 December 2015) no written certification relating to s.245AR(1) is required.
The Tribunal further notes that the nomination application form identifies a nominee, Mr Jason Sheen, for the nominated occupation of Marketing Specialist, a paid position. The Tribunal is satisfied from the position description and information in the application form that the nominated position is under the direct control of the applicant.
Given the above, the Tribunal finds that r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal is satisfied from the detailed documents provided to it, including the applicant's recent financial statements and its current ASIC and ABN registration, that it is actively, lawfully and directly operating a business in Australia.
Accordingly, the Tribunal finds that the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The material before the Tribunal indicates that the applicant operates a hotel and conference venue in a regional area of Victoria and there is no suggestion that its business activities include those relating to labour hire to an unrelated business.
Accordingly, the Tribunal finds that the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal is satisfied from the contract of employment between the nominee and the applicant dated 20 December 2016 provided to the Tribunal that it meets the above requirements.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal is satisfied, from the oral and documentary evidence provided, that there is no Australian employee performing equivalent work in the same workplace at the same location.
In considering the terms and conditions of employment that would be provided to an equivalent Australian employee, the Tribunal has had regard to the evidence of Mr Wei that the nominee is not, and will not, be paid according to an Award but according to a determination of an appropriate salary package at market rates, that being an annual salary of $55,000 plus 9.5% superannuation. Provided in support of this contention were reports from various websites (such as Payscale, Livesalary and seek.com.au) providing average or median salaries for Marketing positions.
The Tribunal has reviewed a recent Payscale search (conducted 18 September 2017) which indicates that the salary range for a Marketing Officer/Specialist in regional Victoria is $39,000 to $62,000, with the median salary being $49,000: >
A search of Seek.com.au on the same date has the following listed positions:
·Marketing Officer at the National Gallery of Victoria, full time salary of $57,206 gross plus 9.5% superannuation;
·Senior Marketing Officer (12 months fixed term) at Victoria University, salary $72,113 to $78,056 per year; and
·Marketing Coordinator, Randstad Australia, metropolitan Melbourne, $65,000 per year plus super.
The Australian Government Job Outlook website (accessed 18 September 2017) lists the average weekly pay for an Advertising and Marketing Professional (including Marketing Officers/Specialists) as $1,346 before tax (or $69,992 before tax; equivalent to approximately $54,298 after tax if using a marginal tax rate of 32.5%, according to the ASIC website): >
Having considered the above information, the Tribunal is satisfied that the proposed salary of $55,000 offered to the nominee appears to be at the median point of the range suggested by Payscale, and consistent with the average weekly earnings extrapolated to annual earnings suggested by Job Outlook. It appears less than the second and third salaries listed in the Seek advertisements, but it is unclear whether these are inclusive or exclusive of income tax. For this reason, the Tribunal gives greater weight to the Payscale and Job Outlook data.
In relation to the provisions in the nominee’s employment contract dated 20 December 2016 relating to leave entitlements and termination provisions, the Tribunal is satisfied that they are consistent with the National Employment Standards overseen by the Fair Work Ombudsman.
Based on the above, the Tribunal is satisfied that 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.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
‘Adverse information’ includes any adverse information relevant to a person’s suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority, for a possible contravention of the law, including immigration law and industrial relations – r.1.13A(1)(a), (b), and (f) and r.1.13A(2)(b). The definition also specifies that the ‘conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the last 3 years’ – see r.1.13A(3).
The Department’s Procedures Advice Manual (PAM3) indicates that ‘within the last 3 years’ should be interpreted to mean ‘3 years from the date that the relevant information is being considered’, which the Tribunal considers means the 3 year period prior to its consideration (in this case, the period 3 years before mid-September 2017, being mid-September 2014 to mid-September 2017).
The Tribunal notes that the Department’s electronic records (its Integrated Client Services Environment, or ICSE) for the applicant contain a note dated 29 July 2016 stating ‘nominator is linked to a migration fraud investigation.’ In response to the Tribunal’s query, the Department indicated in May 2017 that the investigation related to a previous migration agent who acted for the applicant (who is not the agent currently acting for the applicant in this review application) and that the applicant was not presently under investigation, although the previous agent still was. There is no evidence in the Department’s records, including its electronic records, to indicate that the applicant has received a warning letter or been the subject of a sanction or sponsorship bar or cancellation decision.
As discussed with Mr Wei and the agent at the hearing, however, the Department also provided evidence of a ‘dob-in’ made to the Department on 30 March 2015 in which it was alleged that another business operated by the applicant, the Waverley International Hotel, employed many staff from an Asian background who were apparently sponsored/nominated as full-time ‘managers’ but who in fact carried out low level duties as housekeeping and/or wait staff on a part basis, and who were paid under Award wages. This dob-in was subject to a s.375A certificate which prevents the Tribunal from releasing the dob-in document to the applicant. However, pursuant to relevant case law[1], the gist of this information was put to Mr Wei by the Tribunal at the hearing under s.359AA of the Act. A copy of the s.375A certificate was also provided to him and his agent. They did not challenge its validity and the Tribunal is satisfied that the s.375A certificate is in fact valid.
[1] Burton v MIMIA (2005) 149 FCR 20 at [40] – [42]; Kokcinar v MIAC [2008] FMCA 1307
Mr Wei responded at the hearing, and provided additional written submissions post-hearing. In summary, he disputed the allegations and attributed them to a disgruntled ex-employee at the Waverley International Hotel. He conceded that officers from Fair Work Australia made 2 site visits to the Waverley International Hotel in 2017 in relation to monitoring of payments to employees there holding subclass 457 visas and that 1 issue involving delayed payment of annual leave was identified and rectified with no further action being taken. Mr Wei also identified an earlier case in 2015 when a complaint was lodged by an ex-employee that staff were being underpaid but this complaint was dismissed by the Fairwork Commission. As noted above, the Department confirmed to the Tribunal in May 2017 that the applicant was not presently under investigation, including in relation to the March 2015 allegations.

Although the matter is not free from doubt, the Tribunal takes the view that in this case, there is adverse information in relation to the applicant which occurred within the 3 years before the Tribunal’s consideration of r.5.19(4)(f), in the form of the 2017 Fairwork requirement that the applicant rectify its contravention of workplace laws by paying an employee her annual leave. Accordingly, the Tribunal must now consider whether it is reasonable to disregard that information.
As noted above, Mr Wei, on behalf of the applicant, argued that the 2017 breach was relatively minor in nature and duration, was rectified and that no other breaches had occurred since that time.
The Tribunal has had regard to the adverse information and considers that, in this case, it is reasonable to disregard it. In reaching that conclusion, the Tribunal gives weight to the following factors:
· the breach involved underpayment of 1 employee in relation to a specific salary component. The underpayment was rectified and the Department has not identified any subsequent breaches; and
· there is no evidence before the Tribunal that Fairwork or the Department has identified any further breaches or contraventions or issued any warnings or sanctions in relation to the applicant company.
Thus, while any breach of workplace relations laws is not to be condoned, the Tribunal is satisfied that at the time its consideration of this issue in mid-2017, it is reasonable to disregard this adverse information in relation to the applicant.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The Tribunal has considered Mr Wei’s evidence at hearing and in writing post-hearing that the applicant had underpaid 1 employee by a minor amount earlier in 2017, but had made full rectification to them, and that a complaint brought to the Fairwork Commission in 2015 that the applicant underpaid staff was not upheld.
There is no evidence before the Tribunal of any other breaches of the workplace relations laws of the Commonwealth or by Victoria by the applicant.
Under the circumstances, the Tribunal finds that the requirements of r.5.19(4)(g) are met as it considers this to be 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.
Tasks of the position, genuine need for the position and training benchmarks r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, and certain specified training benchmarks will be met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied that the position and the nominator’s business is located in regional Australia, as the postcode of Traralgon in Victoria (3844) is specified as regional Australia in the relevant written instrument, IMMI 16/045. The applicant must therefore meet the requirements of the second dot point above. As the position and the applicant are located in regional Australia, the Tribunal is satisfied that rr.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal is further satisfied that the applicant has a genuine need for the paid position, and that it is under the nominator’s direct control. The Tribunal accepts that Mr Wei is the owner and General Manager of the applicant business and that he has had ongoing responsibilities for other businesses in metropolitan Melbourne within his portfolio that preclude his active involvement on a day to day basis in the business, and that that the business therefore genuinely needs the nominated position.
The Tribunal notes that the delegate was not satisfied that the applicant business had a genuine need for the nominated position, as the delegate was not satisfied that the concerns about increased competition within the regional area from a proposed Quest serviced apartments and conference venue development were more than speculative. The Tribunal has formed a different view based on the detailed, additional and updated information provided by Mr Wei and Mr Sheen at the hearing, including some of the documentary evidence provided.
The Tribunal is satisfied that the applicant operates a hotel and convention/conference venue in one of the main cities of the Latrobe Valley in regional Victoria, and that it is based slightly outside the central business district of Traralgon. The Tribunal found Mr Wei and Mr Sheen to be credible witnesses who were able to speak in detail about the nature and scope of the applicant business and its competitors in and near Traralgon in regional Victoria.
It is satisfied that when Mr Wei first bought the Century Inn, the marketing role was largely undertaken by him and one of the former owners, but that since mid-2014, the role has been occupied by the nominee, Mr Sheen, who has a relevant Australian marketing qualification. The Tribunal accepts that the nominee and Mr Wei have identified existing and potential competitors for the applicant’s business in the area and that they have also identified the need to differentiate the applicant’s business from them through its marketing efforts. While the Tribunal considers it understandable that the delegate expressed some doubts about the proposed Quest development, the evidence provided to the Tribunal indicates that this is clearly underway and expected to open in the near future. The Tribunal further accepts that this will provide additional competition to the applicant’s business, particularly since the development is part of a chain with national recognition and resources.
Both Mr Wei and Mr Sheen demonstrated detailed knowledge of the factors that they believed set the applicant’s business apart from its existing and future competitors, including its well-regarded Terrace Café, its customer service and its loyalty offers/programs to regular customers. The email correspondence provided post-hearing between the nominee Mr Sheen and various corporate customers and advertising bodies adds weight to the fact that the nominee is actively managing these markets on behalf of the applicant while also trying to identify new markets and monitor the local competition (as evidenced by the reports provided prior to the hearing on competitor analysis).
The fact that the nominee is employed on part-time, not a full-time, basis in the nominated occupation does, however, undermine Mr Wei’s contention that the nominated role is crucial to the applicant’s business. However, having taken detailed oral evidence from him and the nominee Mr Sheen at the hearing, the Tribunal is on balance satisfied that the current hours involved in the role are close to (if not actually) full-time, but that these do fluctuate over the course of the year.
Overall, having regard to the available evidence, the Tribunal is satisfied that the applicant business does have a genuine need for the nominated role, and is therefore satisfied that r.5.19(4)(h)(ii)(B) is met.
The Tribunal finds that the Department of Business and Innovation Gippsland Regional Office Traralgon (an approved Regional Certifying Body specified in IMMI 16/045) certified on 7 November 2014 that there was a need for a paid employee in the nominated position within the business activities of the nominating employer, that it could not be filled by an Australian living in the same local area, and that its terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee. It is therefore satisfied that r.5.19(4)(h)(ii)(F) is met.
Based on the certification above, and the oral evidence of Mr Wei in relation to the regional location of the applicant’s business and the associated difficulty of recruiting and retaining staff, the Tribunal accepts that the position cannot be filled by a locally resident Australian citizen or permanent resident. It is therefore satisfied that r.5.19(4)(h)(ii)(C) is met.
In relation to whether the tasks of the position correspond to those of an occupation at the ANZSCO skill level 1, 2 or 3, the Tribunal has considered the evidence before it against the ANZSCO criteria for the occupation of Marketing Officer, which are 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
Specialisations:
Brand Manager
Category Manager
Product Manager
Sales Promotion Officer
…
Planning, developing and organising advertising policies and campaigns to support sales objectives
Based on the evidence before it, the Tribunal is satisfied that the nominated position is responsible for the above duties. The Tribunal gives weight to the nominee Mr Sheen’s detailed evidence about his involvement in securing package deals involving the applicant business and significant events such as the current Magritte exhibition in Morwell, and the annual Junior Tennis competition, to lift the profile of the business, and his involvement in the recently ended ‘French Fridays’ campaign and the upcoming Chef’s Selection campaigns, which are aimed at attracting local diners to the business on weekends when there are fewer corporate guests.
Advising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services
The Tribunal is satisfied that the nominated role reports to Mr Wei, the General Manager, regarding advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services of the kind described above in paragraph 79.
Coordinating 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
The Tribunal is satisfied from the available evidence that the nominee is responsible for sourcing, evaluating and implementing effective advertising campaigns in a variety of local media, although it accepts that this does not presently include media scripting for television or film production. The Tribunal is satisfied that it does include radio advertising and advertising in the local papers and tourist publications, as well as through websites promoting tourism and venues in the Latrobe Valley. The Tribunal is satisfied that the nominated role has an allocated marketing budget with which to pursue these activities.
Analysing data regarding consumer patterns and preferences
Interpreting and predicting current and future consumer trends
Researching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information
The Tribunal is satisfied that Mr Sheen collects (at times with the assistance of other staff) contact details and feedback from corporate and individual guests and has used these to make marketing decisions (such as ending the French Fridays campaign and instituting the Chef’s selection campaign) and to contact regular users to outline packages and special rates for loyal customers.
The Tribunal is further satisfied that both the nominee and Mr Wei have identified potential rivals for the applicant’s business, and that the nominee has undertaken analysis and produced reports comparing the facilities, services, strengths and weaknesses of the applicant’s competitors with the applicant’s business.
As noted above, the Tribunal is satisfied that the nominee has language skills which are useful in dealing with the overseas visitors to the Latrobe Valley, particularly those from China, who are identified as valuable customers by Mr Wei and the nominee.
Supporting business growth and development through the preparation and execution of marketing objectives, policies and programs
For the reasons already set out above, the Tribunal accepts that the nominated role involves these tasks and that the nominee currently undertakes them.
Commissioning and undertaking market research to identify market opportunities for new and existing goods and services
The Tribunal is satisfied that the nominee, in the nominated role, produces reports analysing facilities, services, strengths and weaknesses of the applicant’s competitors with the applicant’s business, and that this is used by the applicant business to identify market opportunities for new and existing goods and services.
Advising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels
The Tribunal considers that not all of the above duties are involved in the nominated role (such as advising on product mix and selling) but it is satisfied that the nominated role does involve the nominee advising Mr Wei and existing and potential customers on pricing, advertising, sales promotion and distribution channels (an example of the latter being the decision to suspend radio advertising for the Terrace Restaurant until Mr Sheen has received sufficient feedback from diners about the Chef’s Selection).
Given the above, the Tribunal finds that the majority of the tasks of the nominated position correspond with the ANZSCO occupation of Marketing Specialist/Officer which is skill level 1.
The Tribunal is therefore satisfied that r.5.19(h)(ii)(D) is met.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(h) are met as a whole.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alison Mercer
Member
ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)     is made in accordance with subregulation (2); and
(ii)     identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)     is actively and lawfully operating a business in Australia; and
(ii)     directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)     the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)     the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)     are provided; or
(ii)     would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)     it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)     both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)     all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2017] AATA 1594

19 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice