ELSC ENTERPRISE PTY LTD (Migration)

[2017] AATA 1892

ELSC ENTERPRISE PTY LTD (Migration) [2017] AATA 1892 (20 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ELSC ENTERPRISE PTY LTD

CASE NUMBER:  1617578

DIBP REFERENCE(S):  BCC2016/1366425

MEMBER:Stavros Georgiadis

DATE:20 September 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 20 September 2017 at 5:39pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Direct Entry Nomination stream – Whether the applicant meets all requirements for approval of the nomination – Genuine need for the position – Tasks to be performed in the position – Position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area

LEGISLATION

Migration Regulations 1994, r 5.19

CASES

OLD SWANPORT INVESTMENTS PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2139

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 Immigration on 7 October 2016 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 5 April 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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 that the applicant’s nomination did not satisfy r.5.19(4)(a)(ii), 5.19(4)(c), 5.19(4)(d) and 5.19(4)(e) of the Regulations as the delegate considered there was a lack of information provided to support the applicant’s claims.

5.    Mr Shang Chee Lim, Director, ELSC ENTERPRISE PTY LTD appeared before the Tribunal on behalf of the applicant on 18 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his spouse, Ms Cenqing Li, who is General Manager of the business and previously acted as Senior Student Counsellor as recorded on the organisational chart provided to the Tribunal. 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

1. 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:

   ·(h)(i) - the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant IMMI legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

   ·(h)(ii) - 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 (RCB) has advised the Minister about certain matters relating to the position.

2. On the available evidence the above sub-clauses 5.19(4)(h)(i)(A & B) are not applicable for the purposes of this nomination.

3. The Tribunal has considered the criteria in respect of 5.19(4)((h)(ii) as follows:

   (A)      the position is located in regional Australia

4. The position is located in Grenfell Street, Adelaide, SA which is in the Central Business District.  The Tribunal accepts that this is in a regional area of South Australia as defined, (being the whole of the State of SA) as per the relevant legislative instrument[1]. 

   [1] Federal Register of Legislative Instruments, IMMI 13/049,  F2013L01107,  21/06/2013

5. (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; AND (D) the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3

   13.      The Tribunal notes the business is under the direct control of the nominator and has identified the nominee, Ms Fengyuan Yu, as a paid employee to work in the nominated occupation of Student Counsellor (ANZSCO 272115).  However, the Tribunal considers that the nominee does not have educational qualifications that meet the ANZSCO Skill Level 1 criteria of degree or higher qualification (discussed further below). In these circumstances, the Tribunal raised doubts that there is a genuine need for the nominator to employ a paid employee to work in the position as a person meeting the essential criteria has not been engaged in what has purportedly been the role of Student Counselor in the past.

   14.      The evidence before the Tribunal is that the nominee has been employed part-time in the nominated role since February 2016 and holds the qualification of Qualified Education Agent Counsellor (QEAC) issued by Professional International Education Resources (PIER) after completing an on-line certification exam (and 50 hours study) for that qualification. When the lack of any relevant degree qualification (or higher) was put to the applicant at the hearing, his response was that the role of Student Counsellor is ‘not a profession’ that requires a degree and therefore, the QEAC qualification is sufficient to qualify as Student Counsellor. He emphasised that all his ‘Student Counsellors’ have that qualification, having employed at least three such persons in the past. The applicant added that the nominee has other tertiary qualifications, which the Tribunal accepts, but considers these are in unrelated areas of business, and human resource management, with no relevant degree or higher qualification relating to the occupation of Student Counsellor.

   15.      Having regard to the skill level requirements and qualifications set out in ANZSCO 272115 for Student Counsellor, the Tribunal does not agree with the applicant’s submission that this occupation ‘is not a profession’ requiring a relevant degree. The description of the occupation of Student Counsellor in ANZSCO 272115 is that it ‘provides information and assistance to students, parents and teachers about a wide range of matters such as students' personal problems, learning difficulties and special requirements.’ ANZSCO 272115 clearly sets out that ‘… occupations in this unit group have a level of skill commensurate with a bachelor degree or higher 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).’  The Tribunal is of the view that the pertinent skill level requiring a relevant degree or higher qualification for the nominated occupation, is not met by the aforementioned QEAC qualification as it falls well short of the number of hours and level of tertiary study that would be required to be completed to equate to a degree level (or higher) qualification.  Given that none of the occupants engaged by the business in the purported role of ‘Student Counsellor’ have relevant qualifications at degree (or higher) level required by ANZSCO 272115, leads the Tribunal to conclude that the tasks to be performed in the position do not correspond to the tasks of an occupation at ANZSCO skill level 1. 

   16. Also for the same reasons the the occupation is not applicable to the nominee, being the person identified under subparagraph r.5.19(4)(a)(ii), in accordance with the specification of the occupation required under r.5.19(4)(h)(ii)(DA).

6. (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

   18.      The Tribunal notes that the RCB, Immigration SA has advised that this criterion is satisfied on form 1404 according to their assessment and the Tribunal places some weight on this. At the hearing the Tribunal further explored the circumstances of any actions undertaken to firstly fill the nominated position with an Australian citizen or an Australian permanent resident who is living in the same local area.

7. From the oral evidence given at the hearing, the Tribunal accepts that advertising for the nominated position was undertaken from early 2016 until February 2017. This oral evidence is consistent with the applicant’s written statement of 25 April 2017. The Tribunal also accepts from the oral evidence given that earlier advertising had been undertaken in September 2015 (in respect of an earlier different application that was later withdrawn) and subsequent advertising for the nominated position, and other Student Counsellor positions, in the business.

8. The Tribunal accepts the oral evidence that a number of interested applicants were attracted to apply numbering in the order of five or six persons but that none of the applicants was an Australian citizen or permanent resident.  The Tribunal explored the reason for this at the hearing, and accepts the applicant’s oral evidence, that the advertising for the nominated position stipulated language skills in Mandarin because many of the business’s clients are Mandarin speakers.

   21.      The Tribunal considers that the criterion or even preference for Mandarin language in the skill set for the position serves to limit significantly the potential field of applicants available to perform the work or attracted to the role.  When raised at the hearing, the applicant reiterated that, as a number of its clients or potential clients are from China and are Mandarin speakers, it is of benefit to include the Mandarin language criterion in selection of candidates to cater for customers’ English language proficiency shortcomings.  The Tribunal considers, however, that Mandarin language proficiency is not a core requirement of those overseas workers seeking to migrate for work in Australia, and finds that the adoption of the Mandarin language criterion restricts potentially suitable applicants, is not bona-fide, and acts counter to the objects of the legislation in this regard which otherwise requires English language proficiency for overseas workers.

   22.      In the particular circumstances above, the Tribunal finds that the adoption of the Mandarin language criterion has served to limit the range and scope of persons potentially attracted to apply for the position of Student Counsellor, including Australian citizens or permanent residents living in the same local area of the business location in Adelaide.  As aforementioned, the oral evidence provided at the hearing is that indeed no Australian citizens or permanent residents responded to the job application for the nominated occupation for Student Counsellor.

   23. In the matter of OLD SWANPORT INVESTMENTS PTY LTD v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2139, the Federal Circuit Court of Australia upheld the Tribunal’s similar approach in that case (constituted by the same Member as the present matter) with regard to a preference for an Asian language for a nominated occupation. At paragraphs 108 to 110 the Court in considering the appeal, states as follows:

   “The major piece of evidence before the Tribunal was the text of the advertisement itself, which contained the job criterion Asian language highly preferred”.

   Necessarily, in my view, a possible and logical conclusion to be drawn from a plain reading of the advertisement was that a number of applicants would be deterred from applying for the position because they had no Asian language skills.  This follows from the use of the phrase highly preferred, which literally means that applicants with an Asian language would be liked better (preferred) by the applicant to a significant degree (highly). 

   As such, in my view, it cannot be said that the conclusion reached by the Tribunal that “the additional stipulation of the Asian language preference criterion in the skill set advertised for the position serves to limit significantly the potential field of applicants available to perform the work or attracted to the role” was in some way illogical or unsupported by evidence, when the plain text of the advertisement in question must logically have supported such a conclusion.”

   24.      Having considered the particular circumstances in the present case and the evidence discussed above, the Tribunal is not satisfied that the nominated position of Student Counsellor cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

   25. Finally, the Tribunal notes the timing of the employment contract signed by all parties relating to the nominee, Fengyuan Yu. At the hearing, the oral evidence is that the parties signed this contract on 20 March 2016, which is consistent with the date on the contract provided to the Tribunal. It is evident from this (and further to paragraph 19 above) that when advertising the nominated position was undertaken from early 2016 until February 2017 (and subsequently for this position and other positions of Student Counsellor), the applicant had already committed to the nominee via the signed contract of 20 March 2016. The Tribunal considers that at the time the contract was signed, the applicant had not exhausted the search for the nominated occupation for an Australian citizen or an Australian permanent resident who is living in the same local area as that place, and therefore, this criterion under r.5.19(4)(h)(ii)(C) is also not met.

9. Accordingly, the overall requirements of r.5.19(4)(h)(ii) are not met.

   27. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

   DECISION

   28.      The Tribunal affirms the decision under review to refuse the nomination.

   Stavros Georgiadis
   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).