Dynamic Education Group Pty Ltd (Migration)

Dynamic Education Group Pty Ltd (Migration) [2019] AATA 4576 (9 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dynamic Education Group Pty Ltd
CASE NUMBER:  1712967
DIBP REFERENCE(S):  BCC2017/966555
MEMBER:Nicola Findson
DATE:9 October 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 09 October 2019 at 12:21pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Marketing Specialist – financial capacity to maintain nominee’s future employment – financial evidence before the Tribunal – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 6 June 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).
The applicant applied for approval on 11 March 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations, because the delegate was not satisfied that the applicant had demonstrated that it had the financial capacity to employ a person on a full-time basis in the nominated position for at least two years.
Mrs Rohini Modgill, Chief Executive Officer, representing the applicant appeared before the Tribunal on 7 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominated employee, Mr Samir Shah.
The applicant was represented in relation to the review by its registered migration agent.
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 applicant is a registered training organisation in East Perth, Western Australia, 6004. At the time of application, it nominated the position of Marketing Specialist (ANZSCO 225113) and stated the nominee would be paid a base salary of $54,000. The applicant stated it employed 18 Australian employees and 3 foreign employees. It claimed its gross payroll expenditure in the 12 months prior to the application was $359,220 and that it had spent $1095 on training Australian citizens / permanent residents. The nomination was certified by the Regional Certifying Body.
The nomination application was not accompanied by any additional supporting documents. On the basis of the information before the delegate, the delegate was not satisfied the applicant had provided financial documentation to demonstrate it had the financial capacity to provide the terms and conditions of the proposed employment. The delegate found the applicant did not meet r.5.19(4)(d)(i) of the Regulations, which requires that the nominated employee will be employed on a full-time basis in the position for at least 2 years.
Prior to the hearing, the applicant provided further information to demonstrate all the relevant requirements of r.5.19(2) and (4). The applicant provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:
·ASIC records confirming the applicant’s company registration
·Current organisational structure chart
·Statement about the need for the nominated position
·Contract of Employment dated 20 July 2016, as well as an updated Contract of Employment dated 4 January 2019, between the applicant and the nominee recording that the base salary will be $54,000 and 9.5% superannuation
·Financial Statements for the applicant for the years ended June 2017 and 2018
·Business Activity Statement (BAS) for the period January to March 2019 recording sales of $500,675
·Payment Summaries for the nominated employee for the period 2017 to 2019
·Job description for the nominated position
At hearing, Mrs Modgill told the Tribunal that the applicant was registered in 2014; commenced operating in late 2015; and commenced delivering classes to domestic and international students at the beginning of 2016. She indicated she understood the reason for the refusal of the nomination application and explained that, regrettably, because of an administrative error, no financial evidence was provided to the Department in support of the nomination application.
Mrs Modgill provided the Tribunal with information about the current structure of the applicant. She described that marketing, to recruit on-shore and off-shore international students particularly from its target market of South Asia, was identified in 2016 as being integral to the applicants’ business operations. The position of Marketing Specialist was subsequently created, and the nominee was ultimately engaged for this position. Mrs Modgill gave evidence of the nominated employee’s role and duties. She described that the nominated position has been since 2017, and continues to be, vital to sustaining and growing the applicant’s business. She indicated that the nominee is responsible for, amongst other things, undertaking market research, analysing the information, and reporting on the patterns and preferences of select target markets; advising on best marketing strategies to reach target markets in respect of current as well as new courses offered by the applicant; liaising with agents onshore as well as offshore; communicating with prospective students to promote courses offered by the applicant; and developing macro level marketing strategies to align with and support overall business objectives. The Tribunal was also told that the applicant has recently had approval to establish a new campus in South Australia. She said that the nominee had been instrumental in coordinating the advertising and marketing in relation to the launch of this campus. She indicated that classes were set to commence at this new campus in November 2019. Mr Shah also outlined to the Tribunal his daily tasks and relevant experience.
Mrs Modgill explained to the Tribunal how the nominee came to be in the applicant’s employ. She said that the position was advertised on SEEK and generated a lot of interest. She said the nominee was the only one of four applicants shortlisted and interviewed who had the right skills and experience for the job – he had worked as a Marketing Specialist for other education providers in Australia to recruit students from the South Asian market and also had relevant experience gained in India. The nominee has now worked for the applicant, in a full-time capacity, for well over two years.
When asked if the business complies with all the relevant regulatory controls governing the industry it operates in, Mrs Modgill said it does. She confirmed that the applicant engages an external consultancy company to manage the recruitment and human resources side of the business, and to ensure its compliance within an environment that is also heavily regulated by the Department of Education.
In assessing the evidence, the Tribunal observes that it had the benefit of taking evidence from both the applicant as well as the nominee, who presented as persuasive, reliable witnesses.
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 has had regard to the information of the Department’s file as to the nomination, and is satisfied that these requirements are met. The application for approval was made on the approved form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.
The applicant has provided evidence describing the need for the business to employ a paid employee to work in the position under the nominator’s direct control. The Tribunal accepts that the business needs to employ a paid employee to work in the position under the nominator’s direct control. The tasks that the business needs the position to undertake are discussed in more detail below.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
Having considered the material before it, including the nominator’s financial statements and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, 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.
There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Accordingly, the Tribunal finds that the position is not related to labour-hire and that the requirement in r.5.19(4)(c) is met.
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.
It was the delegate’s view that the financial information before him was unable to satisfy this requirement. The applicant has provided additional information and updated financial reports to the Tribunal that indicate the company does have the financial capacity to employ the nominee at the specified salary, and the Tribunal accepts this evidence.
It is now over two years since the delegate’s decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position. The Tribunal has also had regard to the terms and conditions of employment as set out in the employment contract signed by the parties on 20 July 2016 as well as the employment contract most recently signed on 4 January 2019. The contract indicates that the nominee will be employed as a Marketing Specialist on a full time basis for at least two years with a base salary of $54,000 plus superannuation. There is nothing in the contract that expressly excludes the possibility of extending the employment period.
Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.
Accordingly, the requirement in r.5.19(4)(d) is met.
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 has had regard to the terms and conditions of employment as set out in the employment contract. The contract provides for the nominee’s leave entitlements and indicates that the base salary will be $54,000 plus superannuation for a 38-hour week. The Tribunal is satisfied that the nominee’s terms and conditions of employment are in accordance with the Award that currently governs the industry in which the applicant operates, the Educational Services (Post-Secondary Education) Award 2010, and that the employment contract reflects current employment laws.
In these circumstances, the Tribunal accepts that the salary offered meets the industry award and is consistent with what another Marketing Specialist in a similar location would be paid. The Tribunal is accordingly satisfied that the terms and conditions applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly 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.
The Tribunal notes that during the hearing, Mrs Modgill raised an issue that there had been an allegation made to the Department in respect of another nomination application lodged by the applicant and in relation to a different nominee. The allegation concerned the applicant taking money and the nominee not being a genuine employee. The evidence before the Tribunal, which is accepted, is that the Department looked into the complaint, but, after considering all of the evidence provided to it by the applicant, including financial documents, was satisfied there was no wrongdoing on the part of the applicant and ultimately approved the nomination and related visa application.
In these circumstances, the Tribunal considers it reasonable to disregard this, arguably, adverse information known to Immigration.
Accordingly 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.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements 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 and those relevant to this matter are as follows:
·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 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.
Location of the position and the business
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument.
The Tribunal has considered the current legislative instrument (IMMI18/037), however, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 8 March 2018[1]. The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059)[2].
[1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states: “(1) This instrument applies in relation to the following: (a) an application for approval of a nomination in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”
[2] See Schedule 4 of IMMI 18/037
When IMMI17/059 commenced on 17 November 2017, it did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated. The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applied to nomination applications made on or after 17 November 2017.
Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application. That legislative instrument is IMMI 16/045.
In this case, the position is located in East Perth, Western Australia, 6004, and at the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 16/045. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident
Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account the evidence provided to the Tribunal regarding the nature of the business and the explanation as to why there is a genuine need for a Marketing Specialist in the business. In particular, it takes into account the services the business provides. The Tribunal accepts the evidence regarding the applicant’s efforts to find a suitably qualified and experienced staff member to fill the nominated position, on a long-term basis. The evidence before the Tribunal indicates that the role was advertised, and there had been candidates interviewed and deemed unsuitable before the nominee was offered the position. The Tribunal also takes into account the opinion of the regional certifying body, which it notes to be the Government of Western Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.
The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C ) are met.
Tasks of the position

The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument.
The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Marketing Specialist specified in the relevant instrument. The applicable instrument specified for this purpose is IMMI11/021. The application is for a Marketing Specialist, ANZSCO 225113.
A detailed summary of the tasks to be performed in the position are consistent with the tasks for the position in ANZSCO, which include:
- planning, developing and organising advertising policies and campaigns to support sales objectives
- 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
- 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
- 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
- supporting business growth and development through the preparation and execution of marketing objectives, policies and programs
- commissioning and undertaking market research 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
On the basis of the evidence before it, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Marketing Specialist, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of a Marketing Specialist at ANZSCO Skill Level 1.
The Tribunal notes in passing that the nominee holds an Advanced Diploma in Marketing and has significant industry experience both in India as well as Australia. The Tribunal observes that the nominee has experience working for the applicant as a Marketing Specialist for over two years.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 31 March 2017 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 16/045.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e ) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:
·There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
·The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
·The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
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.
Nicola Findson
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 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;
(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 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).

[2019] AATA 4576

9 October 2019

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Immigration

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