Education Embassy Pty Ltd (Migration)

Education Embassy Pty Ltd (Migration) [2021] AATA 2134 (12 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Education Embassy Pty Ltd
CASE NUMBER:  1818353
HOME AFFAIRS REFERENCE(S):          BCC2017/137304
MEMBER:Glenn O’Brien
DATE:12 April 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 April 2021 at 12:13pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 June 2018 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 January 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 applicant provided the Tribunal 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 r.5.19(4)(d) of the Regulations because the delegate was not satisfied that the applicant will provide full-time employment in the nominated position for at least two years.
Mr Agarwal, the primary migration agent of the applicant appeared before the Tribunal on 15 January 2021 to give evidence and present arguments. No director appeared at the hearing of the application. The Tribunal also received oral evidence from Mr Syed Mohsin Al Jameel Jaffri, the nominee.
Post hearing submissions were received on 25 January 2021 and have been considered by the Tribunal in the review.
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.
On the basis of the evidence before the Tribunal, the Tribunal is satisfied the nomination application was made using the relevant online form accompanied by the prescribed fee. 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.
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 the applicant is actively, lawfully and directly operating a business in Australia.
The applicant provided the Tribunal various documents including ASIC extracts, financial records and accounts and other commercial information. The applicant company was registered on 1 July 2008. The accounts for the year ending 30 June 2020 indicate a turnover of $4,060,335.32 and a profit before tax of $168,101.66.
On reviewing the financial information provided by the applicant, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia.
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.
The Tribunal has considered the employment contract between the applicant and the nominee dated 10 August 2020. The applicant told the Tribunal the nominee has been employed since November 2017. The contract provides for the nominee’s direct employment by the applicant in the role of Marketing Specialist.
Accordingly, 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 two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The delegate refused the nomination application on the basis the applicant did not demonstrate the financial capacity to employ the nominee in the nominated position on a full-time basis for two years.
The financial reports provided by the applicant disclose the following:

Financial Year ending

Income

Profit before Tax

Net Equity

30 June 2018

$698,006.00

$7,537.33

$12,517.21

30 June 2019

$698,405.00

$26,623.28

$39,340.49

30 June 2020 (unaudited)

$957,561.00

$87,781.00

undisclosed

The financial position of the applicant has improved significantly since the time of the application, and the delegate did not have the benefit of reviewing the more recent financial accounts of the applicant. Mr Aggarwal told the Tribunal that the applicant held $500,000 in cash and both turnover and profitability had increased due to an expansion of the business and the addition of further migration agents.
The applicant told the Tribunal that the business premises had closed from 15 March 2020 to 30 April 2020 due to COVID-19 and that the applicant was no longer in receipt of JobKeeper payments given a return to higher turnover. Mr Aggarwal told the Tribunal that while there was a downturn in international student arrivals, the business had grown due to students, parents, and working holiday visa holders remaining in Australia due to the pandemic.
The Tribunal had regard to the evidence of the applicant indicating the nominee will be employed for a minimum of two years after the date of the grant of his Subclass 187 visa. Further, the Tribunal had regard to the financial records provided to the Tribunal and the revenue generated since 2015. Notably, the nominee has been in the employ of the nominator since 2017. 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.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions 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 applicant’s current contract of employment indicates the nominee is paid $65,000 plus superannuation. Mr Aggarwal and the nominee confirmed this is the nominee’s current salary and he is receiving that remuneration. The position was advertised prior to the offer of employment being made to the nominee.
Having regard to documentation provided, the Tribunal is satisfied that the terms and conditions of employment 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 put some information to the applicant pursuant to s.359AA of the Act. The Tribunal stated to the applicant (or the director of the applicant or otherwise as appropriate) that it had some information that it had to tell them before it asked them some questions and that it would give the applicant an opportunity to respond to or comment on that information. The Tribunal stated that it was going to put some information to them that could, subject to their comments or response, be the reason or part of the reason, for affirming the decision under review to refuse to grant approve the nomination. The Tribunal indicated it would explain the information and its relevance and ask them if they wished to respond to or comment on the information. The Tribunal advised them that they were entitled to seek additional time to respond to or comment on the information and if they wished to do so, they should let the Tribunal know so that the Tribunal could consider their request, or alternatively they could respond immediately.
The Tribunal put to the applicant that anonymous information was received by Border Watch that the nominee had obtained his 487 visa based upon false information by paying the applicant $40,000 and has been paying his own salary.
The Tribunal stated that the reason that information was relevant was because it may indicate to the Tribunal that the nominated position is not genuine, and the applicant is not lawfully operating a business.
Mr Aggarwal indicated that they understood the information and its relevance and that they wished to respond to that information. They stated that the information was not true and that the bank statements of the nominee evidence that the nominee is paid by the applicant.
The nominee also told the Tribunal that the information is not true and that he was paid his entitlements by the applicant and that he wanted to be a role model for his children and would not engage in unethical practice.
The Tribunal has taken into account both Mr Aggarwal and the nominee’s responses and reviewed the financial accounts and statements provided. The Tribunal had placed no weight on the information provided pursuant to a certificate under s.376(1)(b) of the Act because of the anonymous nature of the information which the Tribunal has been unable to corroborate with other information or documents and the oral evidence of Mr Aggarwal and the nominee.
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 suggestive of the applicant not having a satisfactory record of compliance with Commonwealth or State workplace relations 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 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 083/15 the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are 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 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.
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
While there is a distinction in the Regulations for nominations made in regional Australia in terms of whether there is a genuine need for the position, the Tribunal must still be satisfied under r.5.19(4)(h)(i)(A) that the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in the relevant instrument.
The position description provided by the applicant lists the following tasks:
·Work with company’s Director to conceive, ideate, strategize, develop and implement Education Embassy’s Marketing Plans.
·Strategically implement designed marketing strategies, programs and objectives to further advance and accelerate Education Embassy’s business growth.
·Develop a judicious mix of traditional and digital media marketing strategies that delivers the highest reach; in turn delivering on defined KPIs.
·Lead the brain-storming session to develop unique and creative brand campaigns.
·Manage the conception, creation and production of various brand marketing materials from copy writing, graphics to print ads, TV ads, radio spots, social media videos, newsletters and all BTL materials (leaflets, flyers, posters, standees etc.).
·Design and launch a comprehensive Social Media Marketing strategy soliciting maximum eyeballs, engagement and drives footfall in terms of traffic, enquiries.
·Design tactical brand initiatives to reach the defined Target Audience by wisely choosing from the available media vehicles and within budgets.
·Conceive, design and implement a unique Public Relations strategy with an aim to build a sustainable brand equity in the long run within the defined markets and target clusters (Education Agents/Sub-Agents), Education Providers, migration alliances.
·Initiate an innovative Press and Media Relations strategy to build EducationEmbassy's brand equity and helps in brand advocacy.
·Solicit, analyse and infer data regarding clients’ preferences in terms of choice of country, courses, requirements, habits and trends.
·Travel to various offshore locations to explore, capitalize on potential demand and develop market in the long-run.
·Develop new agency agreements with universities, TAFE and RTOs.
·Develop new education agents/sub-agents partnerships and grow existing base; both onshore and offshore.
·Aggressively increase the Education Embassy brand awareness, solicit enquires through massmedia advertising, seminars, meetings and other brand sponsorship opportunities.
·Liaise with external vendors to execute all grass-roots marketing campaigns, promotional events and brand sponsorship.
·Recommend sales promotion strategies and opinion on pricing and advertising for both onshore and offshore market.
·Follow all the policies, procedure and relevant legislation binding Education Embassy.
·Ensuring compliance with relevant legislation and regulations.
·Single-handedly manage in all outbound or inbound marketing activities by demonstrating expertise in various areas (content development and optimization, advertising, events planning etc.).
·Initiate government relationships with high-profile Australian Officials to discuss, propose and introduce new reforms within the Education and Migration industry.
The nominee provided evidence in relation to the tasks and work performed in the role and the applicant submitted various documents evidencing work examples of the nominee. Based on the evidence provided 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 company correspond to the specified occupation of Marketing Specialist (ANZSCO 225113) and that this is a specified Skill Level 1 position.
The applicant’s most recent standard business sponsorship (SBS) was approved on 28 September 2016 and valid for a period of five years.
The applicant provided a range of receipts for training not in any particular order. The relevant periods for training expenditure are for the periods from 28 September 2016 to 27 September 2017, 2018, 2019, 2020 and 2021.
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.

The applicant has sought to satisfy the training requirements with reference to Training Benchmark B. In reviewing the financial accounts of the applicant the gross payroll and amounts expended on training for the financial years are recorded as follows:

Financial Year ending

Gross Payroll

Training expenditure

%

30 June 2017

$175,800.00

$5,633.00

3.2%

30 June 2018

$260,439.00

$1912.00

0.73%

30 June 2019

$318,696.00

$2,721.00

0.85%

These periods do not align the SBS year, however, are an indication of the amounts expended. The applicant also provided further documents and receipts in relation to training expenditure including a training plan. After the hearing the applicant provided further records in relation to continuous professional development training for a number of employees. In the main that training relates to expenditure in 2019 and 2020 and provided to external providers namely, Professional International Education Resources and Legal Training Australia.
While it is a fine balance, it is apparent the applicant has incurred expenses for the entire period in excess of 1% of gross payroll. The records provided do not satisfactorily establish the applicant has met the required expenditure in relation to each SBS annual period from 28 September to 27 September the following year, however given the evidence of ongoing expenditure and the variances in dates between the SBS and the financial year, the Tribunal is satisfied that the training obligations have been met, or alternatively, in the current circumstances it is reasonable to disregard them.
Accordingly, the requirements of r.5.19(4)(h) are met.
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.
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 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).

[2021] AATA 2134

12 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Financial Year ending	Income	Profit before Tax	Net Equity
30 June 2018	$698,006.00	$7,537.33	$12,517.21
30 June 2019	$698,405.00	$26,623.28	$39,340.49
30 June 2020 (unaudited)	$957,561.00	$87,781.00	undisclosed

Financial Year ending	Gross Payroll	Training expenditure	%
30 June 2017	$175,800.00	$5,633.00	3.2%
30 June 2018	$260,439.00	$1912.00	0.73%
30 June 2019	$318,696.00	$2,721.00	0.85%