Evolution Partners (WA) Pty Ltd (Migration)

[2019] AATA 5073

Evolution Partners (WA) Pty Ltd (Migration) [2019] AATA 5073 (22 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Evolution Partners (WA) Pty Ltd

CASE NUMBER:  1616211

DIBP REFERENCE(S):  BCC2016/850334

MEMBER:Michelle East

DATE:22 August 2019

PLACE OF DECISION:  Perth

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

Statement made on 22 August 2019 at 1:39pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Secretary (General) – tasks of the position – more closely aligned with those of a Receptionist – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 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 Immigration on 13 September 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 1 March 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 the applicant’s nomination did not satisfy r.5.19(4)(h)(ii) of the Regulations because the delegate was not satisfied that the tasks to be performed in the position corresponded to the tasks of an occupation specified by the Minister in an instrument in writing.

5. The applicant was invited to attend a hearing on 5 August 2019 and the nominee, Ms Walton was invited to attend as a witness.  On 2 August 2019, the applicant’s representative contacted the Tribunal by telephone to say that Ms Walton would not be attending the hearing on 5 August.  In the same conversation, the representative also advised that the nomination applicant, Evolution Partners (WA) Pty Ltd had also advised him that they will not attend.

6. The Tribunal received written notification from the nominee that she would not attend as a witness however, no written notification was received from the applicant.  The applicant did not attend the hearing on 5 August 2019.

7. The Tribunal has therefore determined the matter on the evidence available to it.

8. The applicant was represented in relation to the review by its registered migration agent.

9. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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

11. The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument.  The applicable instrument specified for this purpose is IMMI 17/058.  The application is for a Secretary (General) (ANZSCO 521211).  This occupation is listed in Schedule A of the instrument.

12. The occupation Secretary (General) is a skill level 3 occupation, requiring an AQF Certificate III including at least two years of on-the-job training or an AQF Certificate IV.  The nominee has provided evidence that she has an AQF Certificate IV in Sports and Fitness.

13. Tasks for a Secretary (General) include:

    -    liaising with other staff to arrange meetings, and to gain and provide information

    -    preparing reports, briefing notes and correspondence, and proofreading work for typographical and grammatical errors

    -    maintaining appointment diaries and making travel arrangements

    -    processing incoming and outgoing mail, filing correspondence and maintaining records

    -    answering telephone calls, responding to inquiries and redirecting callers

    -    taking and transcribing dictation of letters and other documents

    -    greeting visitors, ascertaining nature of business and directing visitors to appropriate persons

    -    may implement management decisions and maintain records of meetings

    -    may handle bookkeeping and petty cash functions

14. The Tribunal was provided with a copy of a Gumtree ad dated 27 December 2015.  The ad describes the role as to ‘provide administrative support to all members as well as assisting with the overall operation of the club in the Membership Sales Department.  You will be responsible for administering all sectors of programs available within the Club including Personal Training, Food Coaching and Hypoxi’.

15. The ‘principal activities’ of the position were listed some of which correlated to those listed in the ANZSCO.

16. The delegate was of the view that the tasks of the nominee more closely correlated with those of a Receptionist (General) (ANZSCO 542111).

17. Pursuant to ANZSCO, Receptionists ‘receive and welcome visitors, patients, guests and clients, and respond to inquiries and requests.  Tasks include:

    -    Greeting and welcoming visitors and directing them to the appropriate person

    -    Arranging and recording details of appointments

    -    Answering inquiries and providing information on the goods, services and activities of the organisation

    -    Answering, connecting and transferring telephone calls

    -    Receiving and resolving complaints from clients and the public

    -    Receiving and distributing correspondence, facsimile messages and deliveries

    -    Maintaining the reception area

    -    Advising on and arranging reservations and accommodation

    -    May perform other clerical tasks such as work processing, data entry, filing, mail despatch and photocopying

18. A Receptionist (General) is noted as ‘greets clients and visitors, and responds to personal, telephone, email and written inquiries and requests’.

19. The Tribunal also notes that the ad referred to is 4 years old.  Without the benefit of either the applicant or the nominee to provide oral evidence to the Tribunal about the tasks and responsibilities of the nominee, it is difficult for the Tribunal to form a conclusion whether those tasks are still an accurate representation, or whether the tasks have evolved into a more complex role.

20. A comparison of the tasks undertaken by the nominee as described in her job description as well as the Gumtree ad dated 21 December 2015 indicates that the tasks she performs align more with those of a Receptionist, rather than a Secretary (General).

21. After reviewing the evidence provided to the Tribunal it is not satisfied that the tasks of the nominee substantially correspond to those listed on the instrument and therefore Regulation 5.19(4)(h)(ii)(D) is not met.

22. It follows that the applicant does not meet all the requirements of r.5.19(4)(h) of the Regulations.

23. Based on the findings above, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

24. The applicant has not sought to satisfy the criteria in the 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

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

    Michelle East
    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).