EIC GLOBAL (AUSTRALIA) PTY LTD (Migration)

[2021] AATA 2078

EIC GLOBAL (AUSTRALIA) PTY LTD (Migration) [2021] AATA 2078 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  EIC GLOBAL (AUSTRALIA) PTY LTD

CASE NUMBER:  1819905

HOME AFFAIRS REFERENCE(S):          BCC2017/4090310

MEMBER:Susan Reece Jones

DATE:17 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 17 May 2021 at 12:31pm

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry nomination stream – occupation of Marketing Specialist – genuine position – updated financial information – actively and lawfully operating a business in Australia – business growth during COVID-19 restrictions – terms and conditions of employment – duties of the position – training expenditure – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 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).

2. The applicant applied for approval on 3 November 2017. The requirements for the approval of the nomination of a position of Marketing Specialist (ANZSCO: 225113) 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).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the application for approval did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. On 2 December 2020, the Tribunal wrote to the applicant pursuant to s359(2) of the Migration Act, inviting the applicant to provide further evidence in support of its case.

6. On 3 December  2020, the applicant provided the Tribunal with the following documents :

   ·Nominee Income statements 2018,2019.

   ·Nominee PaySlips 2020

7. On 14 December 2020, the applicant provided the following:

   ·     Submission from the applicant Managing Director Ms. Jing Liu dated 11 December 2020  

   ·     ASIC Current and Historical Company Extract dated 4 December 2020

   ·     ATO Tax returns and Financial Statements 2018, 2019, 2020 (draft)

   ·     Monthly BAS Jul 2018 to Oct 2020

   ·     Business Organisational Chart

   ·     Sample of work by the nominee - photos and emails

   ·     Nominee Position Description

   ·     Updated nominee Employment Agreement dated 8 December 2020: salary of $75,000 plus superannuation

   ·     Nominee statement of service from the applicant

   ·     nominee previous work reference from EIC Group Guangzhou Office.

   ·     Nominee evidence of current employment

   ·     Nominee Statements and recent payslips

   ·     Market salary data

   ·     Evidence of staff training expenditure demonstrating the satisfaction of Training Benchmark

8. On 8 February 2020 the representative provided the following:

   ·     Statement from Finance and HR Manager   

   ·     Statement from the nominee  

   ·     2018 HKABA business award  

   ·     2018 HKABA Judges Recognition Award

   ·     2018 UQ outstanding achievement award

   ·     2019 GU platinum agent

   ·     2019 UQ outstanding performer award

   ·     2020 UQ outstanding performer award

   ·     2020 UQ Top performing onshore agent

   ·     Atira Shaped by Scape Partnership Agreement

   ·     EIC-Villanova agreement

   ·     Signed.pdf, Moreton bay college Agreement

   ·     St Laurence's college Agreement 2020

9. The applicant appeared before the Tribunal on 12 February 2021 to give evidence and present arguments. The applicant was represented by its Australian based director, Ms Jing Liu.   

10. The Tribunal also received oral evidence from the nominee and Ms Nancy Li, Regional Manager of Recruitment – International Students, Department of Education, Queensland and Mr Tony Tong, Regional Manager International Students Oceania of University of Queensland.  

11. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

12. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

13. On 25 February 2021, the applicant submitted further evidence in support of its case including:

    ·     Financial Statement 2020

    ·     BAS December 2020

    ·     IAS Jan 2021

    ·     Superannuation payment summary

    ·     Nominee superannuation ANZ & Australian Super  

    ·     Nominee ATO Income statement from 2018 to 2020

    ·     Various marketing proposals   

    ·     Various photos, posters and charts

    ·     Various email correspondence with clients

    ·     Reference Letter for nominee from Ms Nancy Li of Queensland Department of Education

    ·     Reference Letter for nominee from Mr Tony Tong of University of Queensland

    ·     TAFE Qld submission dated October 2020

    ·     University of Queensland October 2020

    ·     IB Program Promotion in China

    ·     Griffith University digital marketing proposal

14. 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

15. 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)

16. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

17. Based on the information in the Department of Immigration's (the Department’s) file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.

18. The identified occupation in the application is Marketing Specialist (ANZSCO 225113), with a base salary of $74,000.

19. The delegate found that in assessing whether there is a need for a paid employee, Departmental Policy provides guidance that delegates must ensure the nominator has demonstrated that there is a vacancy for the nominated position under the direct control of the nominator. The applicant’s submission from the nominator under the heading of Market Salary states “….

    EIC Australia confirms that there is no Australian citizen or permanent resident performing the equivalent work at the same workplace as the nominee in position of senior marketing manager in Brisbane, QLD and Biling Liang will be the only marketing professional in the short term for the Queensland operations….”.

20. This statement indicated to the Department that the nominee and the nominated position will be based in Queensland for only a short term.

21. The submission from the applicant under the heading of ‘Nominated Position for Permanent Appointment – Need for Paid Employee,’ stated that the applicant’s business required the nominee and the nominated position to be based in Queensland for a long term due to increasing market demand and students’ need.

22. Thus, the Department found that the submission from the applicant contradicted its intention of having the nominated position be based in Queensland for a long term and this raised concern for the delegate regarding the genuineness of the stated vacancy for the nominated position.

23. In addition, no quantifiable and verifiable evidence was provided to demonstrate the increasing market demand and students’ need in Queensland and in summary, the delegate found that the applicant did not identify the need for the applicant to have a paid employee to work in the position under the nominator’s direct control.

24. The applicant provided the Tribunal with a comprehensive submission as to its business activities. The applicant, which was registered initially in 2006 renamed as EIC Global (Australia) Pty Ltd in October 2013 according its ASIC records, has headquarters in Sydney, with offices also in Melbourne, Adelaide and Brisbane. The applicant has 4 directors: 1 Australian based and 3 others based in China and Hong Kong. The applicant is part of a much wider group of companies, EIC Global (also trading as Education International Cooperation (EIC) Group), headquartered in Hong Kong.  

25. The applicant is a leading education consultant agency accredited by the Ministry of Education of the People’s Republic of China and recognised by the Australian Department of Education and Communities for International students.

26. The applicant submitted evidence to demonstrate that the nominee has worked in its Brisbane office since 16 November 2017 having previously been employed by the Group in one if its (25) China based offices since 2008. The nominee’s PAYG shows that she is paid $74,000 pa.

27. Director Ms Liu provided the Tribunal with comprehensive oral evidence regarding the nature of the applicant’s business across Australia at hearing. She submitted that the applicant works with many of the world's leading universities, college and schools, including the world's top 200 universities and is a market leader in the Chinese overseas student education industry in Australia. In Australia, the applicant is “authorised” by 39 universities for direct recruitment and provides services to over 6000 Chinese students every year.

28. Director Ms Liu submitted to the Tribunal that the need for the nominated position is genuine and that the Marketing Specialist role is a critical function of the business and explained how the nominee’s work as a Marketing Specialist has developed and how the nominee has contributed to the growth of the business during her time in the position.

29. Significantly, Ms Liu told the Tribunal, the applicant has grown its business during COVID-19 despite the border lockdown. Ms Liu attributes this growth to the nominee. She told the Tribunal that the applicant’s Queensland business was established in 2016/2017 and now represents in excess of 30% of the applicant’s total business.

30. According to Ms Liu, the activities undertaken by the nominee (substantial evidence of which was provided to the Tribunal), means that the applicant has a market share of international students in Queensland now of 60% in schools and close to 40% in the higher education sector. Ms Liu directly attributed the Queensland business growth - notably up 30% on the previous year despite COVID-19 - to the nominee’s experience and initiatives. For example, the nominee initiated a domestic tutoring strategy to its students in Brisbane, upweighted activities with the local university partners and schools and initiated an online program for students based overseas with local Queensland education providers (University of Queensland for example). Multiple examples of the activities initiated by the nominee were provided to the Tribunal and discussed at hearing.

31. In addition, Ms Liu advised the Tribunal that the Chinese market who send their children to school in Australia are focused on ensuring their children can get ahead with the best education, particularly given the restrictions and highly competitive nature of the domestic Chinese education market. Further, the parents of the students that the applicant provides its services to, have the economic capacity, are focused on University rankings and the profile of school performance and are not impacted by media claiming a breakdown in the Australia / China relationship.   

32. To that end, both the nominee and the director told the Tribunal that due to COVID-19, large numbers of students have been stranded in China, so the applicant has used multiple methods to engage with offshore international students to maintain their confidence to continue their education path in Queensland. For example, as part of this engagement plan, the nominee  developed a ‘Cheer for you’ activity to demonstrate the attitude and support to offshore international students who are affected by COVID -19. The applicant provided Financial Statements for the applicant’s 2020 financial year (refer below) which show outcome of the activities on its business – which the Tribunal notes is a stark contrast to many other education providers who have been so adversely affected by the pandemic.

33. The Tribunal is satisfied on the basis of all of the quantifiable and verifiable evidence provided that the applicant has demonstrated the market demand and need in Queensland and in summary, that the applicant had identified the need for a paid employee to work in the position under the nominator’s direct control.

34. 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)

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

36. The application form indicates the business employs 38 Australian citizen/permanent resident employees and 7 foreign employees. The applicant advised the Tribunal that it currently employs 49 staff across its 4 offices and apart from 3 employees, all are full time. The Tribunal was provided with Organisation charts for each of the applicant’s offices and notes that the Brisbane office where the nominee is domiciled has 9 employees.

37. The applicant discussed in detail with the Tribunal at hearing, the recent dramatic change to the international education market. Despite the impact of COVID-19, the applicant managed in 2020, to deliver sales in excess of its 2018 financial year. The Tribunal’s analysis of the applicant’s financial evidence shows as follows:

$	2018	2019	2020
Total income	5,167,777	6,877,074	5,842,727
Salaries/ Contractors	2,467,014	3,234,604	3,376,133 707,467
Training	100,037	56,039	59,719
Superannuation	239,036	324,081	310,632
Total assets	2,758295	3370645	3,248,356*
Total liabilities	1,877,258	2,086,656	2,071,913

*The Tribunal also notes that in 2020, the applicant is holding significant cash assets of $1,404,435.

1. The Tribunal also notes that the applicant’s BAS for October – December 2020 shows sales of $1,292,869 and salaries of $225,485 indicating that the applicant is continuing deliver strong results despite COVID-19.

2. The Tribunal is satisfied based on the material before it, including the ASIC Current and Historical Extract, Organisational charts, Financial Statements and BAS,  payroll activity information and other information about the business' activities that the applicant is actively and lawfully operating a business in Australia. The Tribunal is further satisfied that the applicant has the capacity to weather the continuing challenges of COVID-19.

3. Accordingly, the requirement in r.5.19(4)(b) is met.

   Position is not labour-hire: r.5.19(4)(c)

4. 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. 

5. Ms Liu provided evidence at hearing that the nominator does not participate in labour hire activities.

6. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

7. 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. 

8. The Tribunal has had regard to the most recent signed Employment Agreement (December 2020) and Ms Liu’s oral evidence confirming the nominee will be employed on a full-time basis for at least two years, and that the employment contract does not expressly exclude the possibility of extending the period of employment.

9. The Tribunal has had regard to the documents provided on review, including the nominator's financial statements and BAS.

10. The Tribunal is satisfied on the totality of the evidence that the applicant has the financial capacity to maintain the nominee's salary, as it has demonstrated for the past 4 years, and that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.

11. Accordingly, the requirement in r.5.19(4)(d) is met.

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

12. 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.

    50.      The Tribunal was advised that the nominee who has been employed by the applicant since 2017. The nominee’s recent payslips and PAYG shows as follows:

$	2019	2020	2021 YTD
PAYG	72,468	73,525	38,817

51.      At hearing, Ms. Liu confirmed that there is no Australian performing equivalent work at the same location. Ms. Liu and the applicant’s representative gave evidence that at the time of hiring the nominee and when recruiting for the role advice was sought and market research conducted regarding the appropriate salary for the nominee.

1. The Tribunal has consulted a range of sources of information regarding salary to be paid to the nominee, including:

   • the Payscale website (accessed 8 May 2021) indicates that the median salary for a Marketing Specialist in Australia is $66,586:
   • the Job Outlook website (accessed 8 May 2021) which indicates that the average weekly earnings before tax for a Marketing Specialist is $1,737 before tax (or $90,324 before tax annually):
   • advertisements for various full time a Marketing Specialists in Brisbane listed on Seek.com.au as at 15 May 2021 where a salary range is given includes roles from $70,000 to $75,000:  

2. The Tribunal is satisfied that the terms and conditions applicable to the nominated 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

3. Accordingly, the requirements of r.5.19(4)(e) are met.

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

4. 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. 

1. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.

2. Accordingly, the requirements of r.5.19(4)(f) are met.

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

3. 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.

4. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

5. 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)

6. 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 17/080), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

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

7. As the applicant is not domiciled in a regional area, dot point 1 above is applicable in these circumstances. 

8. The Tribunal has reviewed the detailed position description and the business activities, including the numerous marketing initiates of the nominee as provided to the Tribunal on review. At hearing, both the nominee and the applicant’s director Ms. Liu described in detail, the duties the nominated position involves.

9. The Tribunal is satisfied that the applicant has provided documentary evidence including a detailed document matching the nominee’s daily tasks with the ANZSCO duties. Having regard to the ANZSCO description, the position description and the oral and documentary evidence provided, the Tribunal is satisfied that the duties of the nominated position correspond with those listed within the relevant instrument for the occupation of Marketing Specialist (ANZSCO 225113). Accordingly, it finds that r.5.19(4)(h)(i)(A) is met.

10. The applicant told the Tribunal that as the Senior Marketing Manager (Brisbane Office, Queensland), the nominee’s duties, tasks and responsibilities also include:

    • collecting industry information, including student visa policy changes, new course and admission information from education providers.
    • Carrying out, interpreting, analysing and predicting regular statistics analysis to assist

    in developing marketing strategies and plans.
    support / demand analytics on student growth to Australia.
    analytics, characteristics, data and information to EIC branches and HQ and updating
    head office’s database.
    plans.
    other external stakeholder groups, ensuring active communication and on-going
    partnership.
    Queensland market.
    the whole process.
    coordinators in other EIC offices in Australia (Brisbane, Sydney, Melbourne and
    Adelaide) and in China
    marketing tasks are planned, coordinated and performed within time and budget
    constraints
    in terms of student services and recruitment and promoting EIC’s brand among these
    partners.

    • Scoping and retrieving reports from EIC China regarding Chinese market trends and
    • Advising executives and management in delivering the aforementioned marketing
    • Analysing market condition; arranging field marketing campaigns and other marketing events according to market key point distribution chart.
    • Supervising and providing instructions to ensure the successful implementation of
    • Utilising market distribution to realise maximum market coverage.
    • Marketing and promoting EIC as a quality education and training provider.
    • Marketing to support and develop existing relationships with education agents and
    • Maintaining and expanding PR marketing channels.
    • Editing and updating contents for all online channels.
    • Designing and distributing marketing material in Australia, and in particular, for the
    • Year-round event planning and marketing execution.
    • Responsible for detailed arrangement of all marketing events and following through
    • Assisting company management in assignment of events and campaigns for other
    • Ensuring, with the reference to the Finance department, that the abovementioned
    • Promoting and marketing EIC business profile in the global marketplace, administrating EIC corporate branding initiatives and advertising campaigns.
    • Partner relationship build-up and maintenance, actively seeking regional partnerships

11. The Tribunal notes that the nominee has an excellent command of both English and Chinese.

12. Notably, the Tribunal also received oral evidence supported by a submission (dated 24 February 2021), from Ms Nancy Li, Regional Manager of Recruitment – International Students, Department of Education, Queensland. At hearing and in her submission, Ms Li confirmed that the Department (and Ms Li) have been working with the nominee since 2017 and that the Department meets bi-annually with the nominee. Ms Li told the Tribunal that the applicant “is the largest agent in terms of student numbers for Queensland Education’s international market”. Ms Li further stated that “the nominee is an expert in her field and an asset in assisting the Queensland government in carrying out its marketing campaigns and providing marketing intelligence regarding the international student market.”

13. In addition, the Tribunal was provided with oral evidence and supporting submission (letter dated 22 February 2021), from Mr Tony Tong, Regional Manager International Students Oceania of University of Queensland. Mr Tong specifically made reference to the fact that the number of students recruited from the applicant in Queensland was 2018: 93; 2019: 132; and, 2020: 139 - despite the challenges of COVID-19. Further, Mr Tong described the nominee to the Tribunal as a ‘true market leader’.

14. Director Ms Liu repeatedly told the Tribunal that the success of the applicant’s Queensland business is in her view, directly attributable to the nominee. The applicant is the market leader in the industry after only four years of operations in Queensland noting that it is a highly competitive market, and the applicant’s aggressive and dynamic marketing activities have delivered a strong performance for the applicant’s business in Queensland. The nominee was described to the Tribunal as being a most valuable employee and one the applicant ‘cannot afford to lose’. 

15. For the reasons set out above, the Tribunal is satisfied that the applicant has a genuine need for the position and thus finds that r.5.19(4)(h)(i)(AA) is met.

16. IMMI 17/080 contains specific exclusionary notes for the occupation of Marketing Specialist, namely:

    • Note 2 – excluded from approval if nominated base salary is less than AUD $65,000;
    • Note 11 – excluded from approval if the position (a) is based in a front-line retail setting, or (b) predominantly involves direct client transactional interaction on a regular basis;
    • Note 19 – the position is in a business that has an annual turnover of less than AUD $1 million.

17. The Tribunal notes that the nominee salary is $75,000 (plus superannuation) and therefore Note 2 above does not apply.

18. In relation to Note 11, the nominee’s role does not involve being in a front – line retail setting and nor is the nominee engaged in direct client transactional interaction on a regular basis as that function is undertaken by the applicant director.

19. In relation to Note 19, the applicant turnover in 2021 is forecast to exceed $5 million per annum. On this basis, the Tribunal finds 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 17/080), and the occupation is applicable to the proposed employee in accordance with the specifications made in that instrument. It is satisfied that r.5.19(4)(h)(i)(AAA) is met.

20. In relation to r.5.19(4)(h)(i)(B), the applicant is not required to demonstrate that they are an industry leader in training. The applicant is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business.

21. The training requirements applicable for an established business set out in written instrument IMMI 13/030 as follows:

    • A) recent expenditure by the business to the equivalent of at least 2% of 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.

22. IMMI 13/030 provided that expenditure that can count towards Training Benchmark B includes:

    • paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
    • funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
    • employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
    • employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job
    • evidence of payment of external providers to deliver training for Australian

    employees

    • on-the-job training that is structured with a timeframe and clearly identified

    increase in the skills at each stage, and demonstrating:

    • the learning outcomes of the employee at each stage;
    • how the progress of the employee will be monitored and assessed;
    • how the program will provide additional and enhanced skills;
    • the use of qualified trainers to develop the program and set

    assessments; and

    • the number of people participating and their skill/occupation

23. However, it does not include expenditure on training that is:

    • delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’
    • confined to only one or a few aspects of the business’s broader operations, unless the training is in the primary business activity
    • only undertaken by persons who are not Australian citizens or permanent residents
    • only undertaken by persons who are principals in the business or their family members
    • only relating to a very low skill level having regard to the characteristic and size of the business.

24. In relation to the Training Benchmark provisions, the applicant provided evidence of training invoices, names of employees and payments evidencing compliance with Training Benchmark B.  The Tribunal also notes that the evidence provided shows that by virtue of the type of business that the applicant operates in regards to the student education market –substantial commitment has to be made by the applicant to  training both from an initial employee engagement perspective and as an going (refer also above item 38).

25. Given this, the Tribunal is satisfied that r.5.19(4)(h)(i)(B)(I) is met.

26. Accordingly, the requirements of r.5.19(4)(h) are met.

27. 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

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

    Susan Reece Jones
    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)       all of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

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

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

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

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

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

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

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).