EduTravel Group (Migration)

[2022] AATA 4496

EduTravel Group (Migration) [2022] AATA 4496 (6 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  EduTravel Group

REPRESENTATIVE:  Mr Juan Rincon (MARN: 0745660)

CASE NUMBER:  1913067

HOME AFFAIRS REFERENCE(S):          BCC2019/1996469

MEMBER:K. Chapman

DATE:6 December 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 06 December 2022 at 5:26pm 

CATCHWORDS

MIGRATION – application for approval of nomination of position – medium-term stream – industrial engineer – genuine position and labour market testing – nominee the brother-in-law of managing director – initially employed without open recruitment process – contract for nominated position signed while advertising in progress – position offered to secure migration outcome – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 140GB(2), 140GBA(3), 359(2)

Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73

CASE

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 May 2019, to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (Cth) (‘the Act’) and reg 2.72 of the Migration Regulations 1994 (Cth) (‘the Regulations’).

2. The applicant, EduTravel Group, applied for approval on 18 April 2019. The applicant nominated Mr Rodrigo Moreno Sanchez (‘the nominee’) in the occupation of Industrial Engineer. This occupation is coded number 233511 in the Australian and New Zealand Standard Classification of Occupations (known as ‘ANZSCO’). The applicant operates an international education agency.

3. A nomination of an occupation for a Subclass 482 visa is made under s.140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s.140GBA. In this case, the occupation is nominated for a Subclass 482 visa in Medium-term stream.

4. The delegate decided not to approve the nomination on the basis that the applicant failed to satisfy the Labour Market Testing requirements in s.140GBA(3) of the Act. On 25 May 2019, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.

5. On 4 July 2022, the Tribunal Registry wrote to the applicant pursuant to subsection 359(2) of the Act, inviting them to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. In response, the applicant submitted material including, but not limited to, ASIC information, job recruitment material, financial and taxation records, an employment contract, standard business sponsorship approval, organisational chart, job description, English language testing results, SAF levy receipt, visa information and market salary information. Prior to the review hearing, additional material was submitted including pre-hearing submissions, work samples, commercial material, CV of the nominee and educational documents of the nominee. All submitted material has been duly considered by the Tribunal.

6. Initially, a review hearing was scheduled for 22 September 2022. However, at the applicant’s request it was postponed. The applicant, through its Managing Director Mr Oscar Roa, appeared by telephone before the Tribunal on 20 October 2022 to give evidence and present arguments. Mr Roa, on behalf of the applicant, confirmed he was comfortable participating in the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. Mr Roa confirmed he understood the interpreting service. The Tribunal also took evidence by telephone from the nominee, Mr Rodrigo Moreno Sanchez. The applicant was represented by its registered migration agent (‘the representative’), who attended the review hearing by telephone and was permitted to make submissions.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s.140GBA must be met.

   Position must be genuine and full-time

9. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

10. Relevantly to the requirements of r.2.72(10)(a), at hearing Mr Roa explained that the nominee was working with the applicant in 2016 in Colombia on an indirect basis. In 2018, the nominee was in Australia and the applicant employed him to help expand the business. According to Mr Roa, the nominee was initially offered the position on a part time basis. Mr Roa informed the Tribunal the applicant required an employee who understood Latin America and the issues pertinent to overseas students.

11. When asked by the Tribunal how the nominee came to be employed by the applicant, Mr Roa’s initial response at hearing was to advise they are brothers-in-law. He added that ‘trust and confidence’ were the main factors for initially employing the nominee in Australia, along with the need to have someone run the business operations. When asked by the Tribunal if he asked the nominee to come and work for the applicant, or whether another process was followed, Mr Roa explained they had a conversation about the need for skills required by the applicant and the nominee indicated he possessed such skills. Thereafter, the nominee was engaged by the applicant.

12. During the review hearing, Mr Roa outlined the duties and responsibilities of the nominee, focussing on his role coordinating the operations of the applicant company. The Tribunal also took the evidence of the nominee regarding his duties and he explained them in a consistent fashion to Mr Roa. The Tribunal also canvassed the proposed remuneration package of the nominee with Mr Roa and the financial position of the applicant. In summary, the Tribunal is satisfied that the nominee is employed by the applicant and that this company conducts legitimate business activities focused on the international student market.

13. The applicant engaged the nominee, for the nominated position, by way of an employment contract executed on 24 February 2019. The position was advertised from 12 February to 14 March 2019, in an effort to comply with the Labour Market Testing requirements. For reasons outlined below, the Tribunal is not satisfied that the applicant complied with the Labour Market Testing requirements. Indeed, it is apparent to the Tribunal that the applicant had already determined to engage the nominee prior to the required period of job advertising concluding.

14. During the review hearing, the Tribunal raised with Mr Roa that given the nominee is his brother-in-law, in combination with the manner in which he offered employment to him, this might tend to suggest that the position associated with the nominated occupation is not genuine and is designed to secure a migration outcome. Mr Roa was invited to comment and replied that neither the family relationship, nor a migration outcome, were the reasons for offering employment to the nominee. He outlined that at the time employment was offered to the nominee his visa did not permit full time work. Mr Roa advised he needed an employee to guide the operations of the applicant and the nominee was best placed. He reiterated the employment arrangement was not to achieve a migration outcome, rather it was to have the position filled on a full time basis.

15. On balance, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. This is for the following reasons. The Tribunal prefers the spontaneous evidence of Mr Roa at hearing regarding the manner in which he initially engaged his brother-in-law, on behalf of the applicant company. It is apparent that he had a conversation with the nominee and hired him to work on a part time basis in Australia without an open recruitment process. Subsequently, when it came time to recruit for the nominated position, the applicant placed job advertisements on 12 February 2019, with the advertising running until 14 March 2019, yet the employment contract with the nominee was signed on 24 February 2019. The Tribunal finds it implausible that Mr Roa had any intention of hiring a person other than the nominee for the nominated position, given the familial relationship between the two. At hearing, Mr Roa maintained that trust is an important quality in the employment relationship and he emphasised he had that with the nominee. Having careful regard to the evidence, the Tribunal is of the view that Mr Roa offered the nominated position to the nominee, his brother in law, to secure a migration outcome for him, rather than seeking to genuinely fill a position on a bona fide basis. The Tribunal does not accept Mr Roa ever intended to employ a person other than the nominee due to their familial relationship. The Tribunal so finds.

16. For these reasons the requirements of reg 2.72(10)(a) are not satisfied by the applicant.

    Labour Market Testing

17. Section 140GBA requires a person who nominates an occupation and associated position to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in ss.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.

18. For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position. To satisfy the labour market testing condition, the testing must be undertaken within a prescribed period as set out in instrument LIN 18/036. In addition:

    ·the nomination must be accompanied by the evidence specified in ss.140GBA(5) and (6) (for nominations made before 12 August 2018) or in the instrument made under s.140GBA(6A) (for nominations made on or after 12 August 2018) relating to labour market testing;

    ·the labour market testing must have been undertaken in the manner determined under s.140GBA(5) (for nominations made on or after 12 August 2018);

    ·the nomination must be accompanied by information about any Australian citizen or permanent resident redundancies or retrenchments from relevant occupations in the previous four months, and if there are any relevant redundancies or retrenchments, the labour market testing must have been undertaken after those events; and

    ·the Minister must be satisfied a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder (as defined) is not readily available to fill the nominated position.

19. It is common ground that the labour market testing requirements apply to the applicant. The manner in which labour market testing in relation to the nominated position is to be conducted and the types of evidence that must accompany the nomination are set out in instrument LIN 18/036.

20. The evidence of Mr Roa at hearing indicated the applicant commenced advertising for the nominated occupation on 12 February 2019 utilising two recruitment websites, with the advertising running until 14 March 2019. However, Mr Roa also confirmed that on 24 February 2019 a contract of employment was signed with respect to the nominee. The Tribunal canvassed with Mr Roa the submitted job advertisements, candidate responses and the contract of employment signed on 24 February 2019. Mr Roa explained that the nominee had been working with the applicant prior to the application for nomination being lodged (there is no persuasive evidence before the Tribunal of a merit selection process being undertaken in relation to the initial engagement of the nominee). Mr Roa told the Tribunal the two job advertisements were done based on the requirements of the nomination. Mr Roa agreed the contract of employment was signed on 24 February 2019, adding they possibly should have waited to do that. In Mr Roa’s view, the nominee was the best candidate for the position and they couldn’t afford to let him go. He also told the Tribunal that he received applications from persons who didn’t meet the requirements and that is why the employment contract was completed earlier than the cessation date for the job advertising.

21. The Tribunal raised with Mr Roa that the evidence indicating the job advertising commenced on 12 February 2019 and the employment contract being signed on 24 February 2019, might tend to suggest the Labour Market Testing requirements for the nominated position are not satisfied as ‘…applications or expressions of interest for an advertised position must be accepted for at least 4 weeks from when the advertisement is first published…’ according to the Instrument. Mr Roa was invited to comment. He replied that the nominee was the best candidate for the position. Whilst they may have made a mistake regarding the date of the employment contract, the nominee was working for the applicant and was the best candidate. Mr Roa added that maybe they should have waited for the required period before signing the contract but they couldn’t find other suitable candidates, they needed a qualified person to run the operations of the business and he is needed to bring in students to Australia for the benefit of the economy.

22. The Tribunal raised with Mr Roa that given the nominee is his brother in law and the employment contract with him was signed twelve days after the job advertisements were posted, this might tend to suggest that applications or expressions of interest for the advertised position were not accepted for at least four weeks from when the advertisement was first published as required. Mr Roa was invited to comment and advised the family relationship is irrelevant to the position. He explained he needed someone he could trust for the position, who held the relevant qualifications and could start work in Australia. Mr Roa advised he offered the position based upon the nominee’s qualifications, not the family relationship. He added that if there was a mistake with the date of the employment contract, it remains the case the nominee was the most suitable candidate.

23. The Tribunal raised with Mr Roa that given the nominee is his brother in law, in combination with the manner in which he offered employment to him, this might tend to suggest that the position associated with the nominated occupation is not genuine and is designed to secure a migration outcome, inviting his comment. Mr Roa replied that neither the family relationship, nor a migration outcome, were the reasons for offering employment to the nominee. He outlined that at the time employment was offered to the nominee his visa did not permit full time work. Mr Roa advised he needed an employee to guide the operations of the applicant and the nominee was best placed. He reiterated the employment arrangement was not to achieve a migration outcome, rather it was to have the position filled on a full time basis.

24. Subsequently during the review hearing, the Tribunal canvassed with Mr Roa that it potentially had concerns with the Labour Market Testing requirements and whether the position associated with the nominated occupation is genuine. Mr Roa advised that maybe some mistakes were made with the application, however his view is that the nominee is the best candidate for the role and the relationship is not the defining factor. Towards the end of the review hearing, the Tribunal again canvassed its potential concerns with the Labour Market Testing requirements not being satisfied. Mr Roa maintained his position that any problems with the dates of job advertising in relation to the date of the employment contract were unintentional. He also

25. maintained the position is genuine.

26. The Tribunal notes that it also took evidence from the nominee during the review hearing. None of his evidence related to the issue of the Labour Market Testing requirements. Further, the Tribunal notes that the representative gave submissions at the review hearing. The representative contended that the employment contract was signed on 24 February 2019, with a commencement date of 16 March 2019, therefore it was only an offer and if another candidate was identified during the job advertising period they would have been duly considered. The representative additionally contended that the familial relationship was conducive to trust within the employment relationship and there was nothing wrong in hiring family members.

27. The Tribunal has carefully considered all the evidence before it in relation to the matter of Labour Market Testing. For the following reasons, the Tribunal is not satisfied the Labour Market Testing requirements are met by the applicant. It is apparent the contract of employment was signed by the parties on 24 February 2019, prior to the requisite period for job advertising concluding. In the view of the Tribunal, it is implausible that Mr Roa would engage his brother in law by way of an employment contract, yet still genuinely accept other applications for the position, particularly given the manner in which Mr Roa described the initial employment of the nominee by the applicant, in combination with his desire to secure the nominee’s services.

28. Whilst the Tribunal accepts the job advertisements ran for the required period (as indicated by the submitted advertising material), it does not accept applications were actually accepted for the requisite period. Nor does the Tribunal accept the contentions of the representative that the contract was merely an offer that might be rescinded should a better applicant present. In summary, the Tribunal prefers the spontaneous evidence of Mr Roa at hearing in regard to the initial employment of the nominee (his brother in law) and the timing of the employment contract, to the ex post facto attempt to suggest applications for the position were accepted for the requisite period and the familial relationship played no role in the selection process.

29. On balance, the Tribunal finds that the labour market testing requirements in s.140GBA are not satisfied by the applicant.

30. Given the reasons above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

31. The Tribunal affirms the decision not to approve the nomination.

    K. Chapman
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

    (1)This regulation applies in relation to a person who:

    (a)is any of the following:

    (i)       a standard business sponsor;

    (ii)      a person who has applied to be a standard business sponsor;

    (iii)     …

    (iv)    …

    (b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

    (i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

    (ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;

    (iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

    (2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

    Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

    (3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (5)The Minister is satisfied that:

    (a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or

    (b)…

    (5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

    (6)If the nominee holds:

    (a)a Subclass 457 (Temporary Work (Skilled)) visa; or

    (b)a Subclass 482 (Temporary Skill Shortage) visa;

    the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

    (7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (8)The Minister is satisfied that:

    (a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

    (i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or

    (ii)      …; and

    (b)the occupation applies to the nominee in accordance with the instrument or work agreement.

    (9)The Minister may, by legislative instrument, specify occupations and, for each occupation:

    (a)whether the occupation is:

    (i)       a short term skilled occupation; or

    (ii)      a medium and long term strategic skills occupation; and

    (b)either:

    (i)       the 6-digit ANZSCO code for the occupation; or

    (ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and

    (c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and

    (d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

    (i)       the person who nominated the occupation;

    (ii)      the nominee;

    (iii)     the occupation;

    (iv)    the position in which the nominee is to work;

    (v)     the circumstances in which the occupation is undertaken;

    (vi)    the circumstances in which the nominee is to be employed in the position.

    (10)The Minister is satisfied that the position associated with the occupation is:

    (a)genuine; and

    (b)a full-time position.

    (10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (11)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is not an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

    (e)the person will give the Minister a copy of the contract signed by the employer and the nominee.

    (12)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person; and

    (e)the person will give the Minister a copy of the contract signed by the person and the nominee.

    (13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

    (14)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

    (c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

    the person has provided evidence to the Minister that the nominee satisfies:

    (d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

    (e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

    (15)Subject to subregulation (16), if:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

    the Minister is satisfied that:

    (c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

    (d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

    (e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

    (f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

    (g)either:

    (i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

    (ii)      it is reasonable to disregard any such information.

    (16)However:

    (a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

    (i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

    (ii)      it is reasonable in the circumstances to do so; and

    (aa)the Minister may disregard the criterion in paragraph (15)(e) if:

    (i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

    (ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and

    (b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

    (18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

    (a)either:

    (i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

    (ii)      it is reasonable to disregard any such information; and

    (b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.

    (19)…