F.S. GLENNON & CO PTY LTD (Migration)

F.S. GLENNON & CO PTY LTD (Migration) [2023] AATA 3906 (23 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  F.S. GLENNON & CO PTY LTD
REPRESENTATIVE:  Mr Ian Singer (MARN 0001947)
CASE NUMBER:  2004181
HOME AFFAIRS REFERENCE(S):          BCC2020/15304
MEMBER:Peter Papadopoulos
DATE:23 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 23 August 2023 at 5:52pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Short-term stream – Sales and Marketing Manager – genuine position – lack of contemporaneous information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA
Migration Regulations 1994 (Cth), rr 2.72, 2.73
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 February 2020 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).
The applicant applied for approval on 24 January 2020. 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 the Short-term stream.
The delegate decided not to approve the nomination because they were not satisfied the position associated with the nominated occupation was genuine, thereby resulting in the applicant not meeting reg 2.72(10)(a).
On 13 July 2023, the Tribunal wrote to the applicant under s 359(2) of the Act, and invited it to provide the following written information:
·     Information about company and business registration;
·     Information about current approval as a Standard Business Sponsor or being party to an approved work agreement;
·     Information about directly operating an active and lawful business in Australia and the business’ financial position for at least the last two financial years;
·     Information about the business’ organisational structure and where the position associated with the nominated occupation sits in relation to that structure;
·     Information about the roles and duties of the nominated occupation and how they correspond to the nominated occupation’s position description in ANZSCO;
·     If the nominated occupation is subject to an inapplicability condition, information about why the condition does not apply in the circumstances of their case;
·     Information about the annual market salary rate for the nominated occupation, the nominee’s annual earnings and the terms and conditions of employment, including whether or not they are more favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same location;
·     Information about the current and previous visa status of the nominee, and, if applicable, their English language ability; and
·     Information about whether the applicant satisfied the labour market testing condition or information that the applicant is exempt from that condition.
The letter informed the applicant that if they did not respond within the period allowed, or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information. The applicant was also informed that it will lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
As no response was received within the period the Tribunal has determined that the applicant has lost its right to appear before the Tribunal and will therefore proceed to make its decision on the information before it.
The Tribunal notes that the nominee, Ms Jessica Rachel Jayne Freeman, withdrew her corresponding application for review on 30 June 2022, and it was finalised by the Tribunal on 27 July 2022. Departmental records show that on 23 November 2022 the nominee was subsequently granted a subclass 482 visa in connection with another sponsoring business.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
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.
On 24 January 2020, the applicant submitted a nomination application to nominate Ms Jessica Rachel Jayne Freeman in the occupation of Sales and Marketing Manager (ANZSCO 131112). The Tribunal has considered the submitted nomination application form and the documents provided to the Department in support of the application, including (but not limited to):
·     Contract of employment, signed 20 January 2020, and letter of offer dated 15 July 2019
·     Position Description – Architectural Sales Representative
·     Renumeration surveys from Indeed, Seek, and Payscale
·     Labour Market Testing Report
·     Former and updated Organisational Charts
·     Current employee list
·     Profit and Loss statements for 2019
·     Balance Sheet for July 2018 - June 2019
·     BAS Statements from December 2018 to November 2019
·     Statement from ZM Partners, accountants for the applicant, dated 17 December 2019
·     Assorted payslips for the nominee from 2014 to 2019
·     Payslips for the nominee from the applicant from August 2019 to January 2020
·     The nominee’s CV detailing her qualifications and work experience.
Regulation 2.72(10)(a) requires a decision-maker to be satisfied that the position associated with the nominated occupation is genuine. The intention of this provision is to ensure that positions nominated under this provision are in skilled occupations and are genuinely needed by the nominating employer.[1]
[1] Explanatory Statement to SLI 2013, No 146
A proper assessment of this criterion involves a determination of not only whether or not the position in question is genuine in the sense that the position exists, but also whether that position really is what it purports to be. In terms of the latter, the Courts have confirmed that the determination necessarily requires a qualitative analysis of the position and a comparison of that with the occupation which has been nominated by the proposed sponsor.[2] In Cargo First Pty Ltd v MIBP, it was settled that the assessment requires a qualitative analysis of the position that is the subject of the nomination to determine whether it is ‘genuine’.[3] The Court confirmed that in considering whether the position associated with the occupation was genuine the decision-maker was required to reach a state of satisfaction as to whether or not:
·     there was a ‘position’ of the kind identified in the nomination;
·     the person occupying that position was in fact required to undertake ‘tasks’ of the kind set forth in ANZSCO; and
·     the ‘tasks’ required to be undertaken included a significant majority of the tasks set forth in the ANZSCO.[4] In conducting this analysis, the decision maker must have regard to the correct version of ANZSCO which, in this context, is the version published at the time the Tribunal makes its decision.[5]
[2] Cargo First Pty Ltd v MIBP [2016] FCA 30 at [34].
[3] Cargo First Pty Ltd v MIBP [2016] FCA 30.
[4] Cargo First Pty Ltd v MIBP [2016] FCA 30 at [34].
[5] Mora v MIBP [2018] FCA 1819.
The Tribunal has significant problems with the applicant’s claims in relation to the genuine nature of the position. The evidence presented by the applicant to the Department and the Tribunal is not sufficiently detailed to enable the Tribunal to be satisfied that the position still exists. Over three and a half years have elapsed since the nomination application was made and, despite the Tribunal’s request for updated information, there is no contemporaneous information detailing the business’ financial position, the business’ organisational structure and indeed whether the need for the position remains and, if so, where the position sits within the business’ current organisational structure. Furthermore, the applicant has not provided any contemporaneous information in relation to whether there is a person occupying the position along with any information pertaining to the current status of the nominee, including whether they are still employed by the business or indeed whether the business still intends to employ the nominee at some point in the future. On this basis, the Tribunal is unable to satisfy itself that the position still exists and is genuine.
Furthermore, the Tribunal has considered the material before it and similarly has concerns in relation to whether the tasks of the position align with the tasks of the occupation of Supply and Distribution Manager as described in ANZSCO. Taking into account the information contained in the nomination application form pertaining to the size and nature of the applicant’s business, the Tribunal is prepared to accept that a role encompassing the tasks of a Sales and Marketing Manager, as described in ANZSCO, could conceivably exist within such a business. However, the Tribunal has considered the material before it, and is unable to satisfy itself as to the current size, nature and scope of the business’ operations to then assess whether a genuine position exists within the business at the present point in time.
Turning to a consideration of the position itself, the delegate noted in their decision that the Position Description lists the following responsibilities and tasks:
Key Performance Areas
·     Identify and pursue relevant commercial building projects
·     Manage a portfolio of architects and designers in relation to these projects
·     Achieve relevant sales revenue and margin budgets
·     Manage Cordell (and or BCI) leads for allocated architects and their associated projects
·     Develop architectural campaigns and presentations for architects and designers to win specifications
·     Promotes/sells/secures orders from existing and prospective customers through a relationship-based approach.
·     Demonstrates products and services to existing/potential customers and assists them in selecting those best suited to their needs.
·     Conversion of leads into specifications
·     Manage specifications through to project completion
·     Build and maintain relationships with key players in the industry
·     Develop strategies to win short term projects directly with developers and builders
·     Manage own project pipeline to ensure balance of short term and longer term sales opportunities
Detailed Job Description
·     Make initial inquiry on a timely basis to establish the parameters of the project, assess its attractiveness to Glennon’s and register our interest
·     Generate and pursue sales leads in a professional manner and appropriate time frame
·     Ensure all commitments made to clients are met and follow ups actioned daily or as required.
·     Actively seek and develop new business opportunities
·     Maintain a detailed list of your contacts in CRM, Including Architects, Developers, Builders and Tilers and maintain contact with them in accordance with a call schedule
·     Maintain continual contact with Architects, Designers, tilers, builders and other key decision makers to avoid any possible product substitution
·     Consistently working to meet clients’ requirements, including being able to fulfil their orders as required.
·     Negotiate appropriate payment terms, ensuring payment requirements are meet
·     Ensuring customers are aware of our Conditions of Sale and Credit Policy
·     Attend Sales meetings as directed
·     Makes telephone calls and in-person visits and presentations to existing and prospective customers.
·     Researches & pursues sources for developing prospective customers
·     Develops clear and effective written proposals/quotations for current and prospective customers.
·     Expedites the resolution of customer problems and complaints.
·     Coordinates sales effort with marketing, sales management, accounting, logistics and technical service groups
·     Identifies advantages and compares organisation’s products/services
·     Supplies management with oral and written reports on customer needs, problems, interests, competitive activities, and potential for new products and services
·     Keeps abreast of product applications, technical services, market conditions, competitive activities, advertising and promotional trends
·     Gain a comprehensive understanding of our core product suite to be able to sell on a technical level.
·     Gain a comprehensive understanding of the Australian flooring standards applicable in commercial flooring & use this knowledge to inform and educate our customers
The Tribunal has considered these tasks alongside those articulated within the occupational classification definition in the current ANZSCO Guide for the occupation of Sales and Marketing Manager:
131112 Sales and Marketing Manager

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.
Skill Level: 1
Specialisations:
Business Development Manager
Market Research Manager
In the Tribunal’s view, a majority of the tasks of the position may not necessarily involve managerial responsibility and may be suitably performed by sales professionals, clerical or administrative staff. For example, in the absence of contemporaneous and detailed information about the business’ operations and market environment, the following tasks could readily be performed by suitably qualified sales professionals, and in some instances clerical or administrative staff, within such a business:
·Generate and pursue sales leads in a professional manner and appropriate time frame
·Ensure all commitments made to clients are met and follow ups actioned daily or as required.
·Maintain a detailed list of your contacts in CRM, Including Architects, Developers, Builders and Tilers and maintain contact with them in accordance with a call schedule
·Maintain continual contact with Architects, Designers, tilers, builders and other key decision makers to avoid any possible product substitution
·Consistently working to meet clients’ requirements, including being able to fulfil their orders as required.
·Negotiate appropriate payment terms, ensuring payment requirements are meet
·Ensuring customers are aware of our Conditions of Sale and Credit Policy
·Attend Sales meetings as directed
·Makes telephone calls and in-person visits and presentations to existing and prospective customers.
·Researches & pursues sources for developing prospective customers
·Develops clear and effective written proposals/quotations for current and prospective customers.
·Expedites the resolution of customer problems and complaints.
·Keeps abreast of product applications, technical services, market conditions, competitive activities, advertising and promotional trends
·Gain a comprehensive understanding of our core product suite to be able to sell on a technical level.
·Gain a comprehensive understanding of the Australian flooring standards applicable in commercial flooring & use this knowledge to inform and educate our customers.
The applicant’s decision not to respond to the Tribunal’s s 359(2) letter has left the Tribunal unable to address it concerns and the issues relating to the lack of specificity in its claims relating to the nature and scope of the position.
Given the concerns and lack of information identified above, without more contemporaneous information and detail, it is difficult to know what significance can be attached to the applicant’s assertions in relation to the genuine nature of the position.
For these reasons, the Tribunal is not satisfied that the position is genuine for the purpose of reg 2.72(10)(a).
Therefore, the requirements of reg 2.72(10) are not met.
Accordingly, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. It follows that the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Peter Papadopoulos
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)…

[2023] AATA 3906

23 August 2023

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