Hush Holdings (Aust) Pty Ltd (Migration)

Hush Holdings (Aust) Pty Ltd (Migration) [2018] AATA 4378 (2 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Hush Holdings (Aust) Pty Ltd
CASE NUMBER:  1620715
DIBP REFERENCE(S):  BCC2016/50952
MEMBER:Ian Berry
DATE:2 October 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 02 October 2018 at 11:32am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – no evidence of market rates – organisation chart – employee in the same position – applicant’s language and cultural skills – employment contract – position description – information on extent of market – type of tasks – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 245AR, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 5.19

CASES
Hasran v MIAC [2010] FCAFC 40
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 Immigration on 16 November 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).
The applicant applied for approval on 4 January 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations for the reason that the applicant had provided insufficient evidence to support the nomination of the position ‘sales and marketing manager’.
The applicant provided the Tribunal with a copy of the decision record made by the delegate on 16 November 2016.
For the following reasons, the Tribunal has decided affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
On 20 February 2018, the Tribunal wrote to the applicant under s. 359(2) of the Act, inviting the applicant to provide information in writing about:
a.The applicants current organisation chart.
b.The location or locations at which the nominated occupation is to be undertaken.
c.The name of the person who will work in the nominated position as well as the names of the family members.
d.Information about the visa status of the nominee including his English language ability.
e.Information demonstrating that the position associated with the nominated occupation is genuine and the tasks to be performed in that position will be performed in Australia and correspond to the tasks of the nominated occupation.
f.Information demonstrating the business can sustain an employee employed in the position of marketing and sales manager full-time for at least two years.
g.Details of the salary terms and conditions of employment.
h.Information demonstrating the terms and conditions of employment that are or would be provided to an Australian citizen or permanent resident, would be no less favourable than the terms and conditions that either are provided or would be provided to an Australian citizen or an Australian permanent resident, for performing equivalent work in the same workplace at the same location.
The invitation was sent to the applicant (through its migration representative) to the last address provided in connection with the review with advice that, if the information was not provided in writing by 6 March 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 2 March 2018, the applicant (through its migration representative’s email) requested an extension of time to 6 May 2018 which was a period two months away. The reason given for such a long extension is “the business response that they need more time to prepare the documents for submission, and hence request for extension of two months, two 6 May 2018”.
By the Tribunal’s letter dated 6 March 2018 (sent to the migration representative of the applicant via email) afforded the applicant an extension to 20 March 2018 to provide the the requested information.
On 23 March 2018, the applicant (through its migration representative’s email) provided the Tribunal with the following information and documents:
a.Adult Higher Education Graduate Certificate certifying that student Xing Fan born 5 June 1980 and completed distant education for diploma of computing course at the University of Shaoyang from March 2009 to July 2011.
b.Certificate of completion at the Sun Yat-Sen University - executive Senior MBA essential course seminar in the School of Continuing Education, dated 20 March 2015.
c.Reference for Mr Xing Fan as employee of Taobao Internet Marketing Department from November 2012 to October 2014.
d.Curriculum vitae of Mr Xing Fan relevant to the period 2000 to 2016 (employment) and 1999 to 2013 (education).
e.ASIC invoice statement for Hush Holdings Property Pty Ltd ACN 609 453 321.
f.Discretionary Trust Deed made 6 October 2008 between settlor and the applicant.
g.Trading, profit and loss statement for the applicant for the year ended 30 June 2015.
h.Business activity statement (BAS) for the second quarter 2017. Export sales $723,635 and total wages $106,004.
i.BAS for the first quarter 2017. Total sales $836,314 and total wages $64,816.
j.BAS for the last quarter 2016. Total sales $795,663 and total wages $87,395.
k.BAS for the third quarter 2016. Total sales $1,075,974. Total wages $115,976.
l.Submission dated 22 March 2018.
m.Various weekly payslips relevant to the nominee.
n.Tax invoice from Queensland international Institute (QII) relevant to the benchmark training payment totalling $2590.
o.Xenia Boutique organisation chart.
p.Position description for ‘sales and marketing manager’ including targets and duties.
q.Employment contract between the applicant and the nominee undated but executed.
r.Certification of the nominator dated 5 April 2016.
s.Declaration of the nominee dated 5 April 2016.
t.Record of registration for the business name “Xenia Boutique”.
u.Summary of business name details from ASIC relating to Xenia boat tick being owned by Hush family trust with registration date 7 August 2014.
As the above information was not given in the prescribed time, s. 359C of the Act applies and pursuant to s. 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s. 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to meet it to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information sought but for which no information has been given.
The application is compliant: r.5.19(4)(a)
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 a paid employee to work in the position under their direct control.
Hush Holdings (Aust) Pty Ltd (‘applicant’ or ‘nominator’) lodged a nomination application online on 4 January 2016. The nomination was for an employer nomination scheme-visa subclass 186, direct entry with Xing Fan, date of birth 5 June 1980 (a male) being identified as the nominee to fill the position of ‘sales and marketing manager’. This position under ANZSCO code is 131112.
On the evidence before the Tribunal, the application for approval is on the approved form, was accompanied by the prescribed fee, and it included a written certification relating to conduct that contravenes s.245AR(1)[1].
[1] Department – folio 95.
The application must also identify a need for the nominator to employ a paid employee to work in the position under its direct control. For nominations made before 1 July 2017, r.5.19(4)(a)(ii) requires that the application for approval ‘identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control’.
The nominator is an Internet seller of clothing and clothing accessories based in Brisbane. The ‘application for the employer nomination for a permanent appointment’[2] states that the nominator employs 18 Australians, of which two are professionals and two are trainees. It has a gross payroll expenditure of $245,355. The nominated person is Mr Xing Fan. His basic rate of remuneration per annum is $175,400 and with superannuation is $180,600. There is not any evidence to indicate as to whether this is an annual income that does not disadvantage Australians perform in the same job at the same place, but the nominator states that the base rate was determined based on the market rate, skills and qualifications.
[2] Department – folio 109-116.
An organisation chart was not available to the delegate but was subsequently provided. The trading name of the nominator is ‘Xenia Boutique’. The zenith of the organisation chart is the chief executive officer over which that officer controls four sub - branches. There is a marketing and sales manager for Australia and Europe, a marketing and sales manager for China, an IT manager and an operation manager. The operation manager controls four managers namely dispatch, graphic, product and customer service. The dispatch manager controls stock (outward). Reporting to the dispatch manager is a ‘product picker’. The product manager has control of the following positions – stock control inward, product return, product receiving and product/order placement[3].
[3] Tribunal – folio 63.
The applicant already employs a sales and marketing manager and has not given any explanation as to why a second sales and marketing manager is required. The applicant has stated the nominee speaks Mandarin and impliedly knows Chinese culture. However, the Tribunal considers there must be other reasons to consider that a second sales and marketing manager is required.
On the information provided by the nominator the only mention of the sales and marketing manager existing prior to the nomination is the chief executive officer being in control of the Department. It therefore must be assumed the nominator is in the Chinese market. It is noted that the nominator already has a sales and marketing manager in control of Europe and Australia. Other than this information little is known of the nominator’s business.
In determining whether there is a genuine need for the nominated position, when there is already a position of ‘sales and marketing manager’ which, according to the organisation chart deals only with that Europe and Australia. There is not any evidence as to whether the Chinese market has only just started, is expanding or the position is required to commence the expansion. It is impossible to determine the expansion by reason of the financial information provided by the applicant. In the first instance the delegate was given very little information of a financial nature.
On the evidence presented, the Tribunal is not satisfied as to the need to employ another sales and marketing manager.
Accordingly, the requirement in r.5.19(4)(a) is not met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The information presented by the applicant to the Tribunal shows the applicant to be operating an Internet based clothing apparel and accessories outlet with its headquarters at West End, Brisbane. The applicant has provided registration information and to BAS documents supporting that it is both actively and lawfully operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
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.
There is not any evidence before the Tribunal to suggest that the applicant is involved in labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant has provided the Tribunal with an employment contract[4]. This document does not seem to include a list of tasks or a description of the activities to which the nominee is to undertake in the employment as a sales and marketing manager. In the documents supplied pursuant to s. 359(2) of the Act, the applicant has given to the tribunal a document entitled ‘position description for sales and marketing manager’. The Tribunal accepts that the applicant has set out targets and duties of the nominee. The employment contract has the nominee working for at least two years without there being any restriction.
[4] Tribunal – folio 68.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
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.
The applicant has not provided market evidence as to the terms and conditions of employment applicable to the nominated position be no less favourable than those which would apply to an Australian citizen or permanent resident performing equivalent work in the same workplace and location. The applicant provided Page 11 of 15 of IMMI 11/021 setting out in column C the salary of $49,330 relevant to the position of sales and marketing manager ANZSCO code 131112. The Tribunal accepts it is evidence of the salary being paid to the nominee, does not disadvantage Australian citizens or permanent residents.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
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.
There is not any evidence relating to the applicant or any associated person that to may consider as ‘adverse information’.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
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.
There is not any evidence relating to the applicant of it not having complied with Commonwealth, State or Territory laws which relates to workplace relations law
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)
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 15/091 ), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·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 has advised the Minister about certain matters relating to the position.
44.R.5.19(4)(h) requires the applicant to identify a need to employ an identified paid employee to work in the position under the nominator’s direct control. It involves a comparison and matching of ANZSCO tasks (ANZSCO 131112) and the tasks to be undertaken in the business. The issue of genuine need arises as the applicant already employs a sales and marketing manager.
45.The applicant is requiring a ‘sales and marketing manager’ for the anticipated or developing market in China for Australian retail clothing and accessories products. It has managers according to the organisation chart[5]. One such manager is a sales and marketing manager for the Australian and European markets.
[5] T1, folio 63.
There is not any evidence as to the tasks of the tasks of the European and Australian sales and marketing manager. The history of the sales and marketing manager position include in the job description of the existing sales and marketing manager would have greatly assisted the Tribunal in determining whether another sales and marketing manager for the China market is a genuine need.
The applicant’s position, as stated in the applicant’s submission is to expand into the Chinese market for which the position requires a mandarin speaking person and who knows Chinese culture. There is not any indication as to whether the sales and marketing manager had the responsibility for Chinese sales and became too much for that person, or it was a matter of hiring first and developing the position as the Chinese market grew. Mention is made of the chief executive officer undertaking this role until the nominee was appointed. Without any evidence of the extent of the markets and therefore the need to employ another sales and marketing manager, the Tribunal is not satisfied there is identified a need for the position.
46.The tasks is for the sales and marketing manager’s position to plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations. The position is a leading managerial position and one that requires a number of the tasks to directing employees on implementing sales and marketing strategies. For example, ANZSCO provides the following tasks of the managing position:
a.Directing the development and implementation of sales strategies and setting sales targets in order to maximise and organisations sales and customer loyalty.
b.Directing the development and implementation of strategies to promote and organisations goods and services to as many people as possible.
c.Directing the development and implementation of strategies to generate increased consumption of and organisations goods and services through the creation and reinforcement of ‘brand image’ or ‘brand loyalty’.
d.Directing the development implementation of strategies to build and maintain an organisation’s image and reputation with its customers, investors and the wider public.
47.The nomination application identifies 18 staff all of whom are Australian citizens. The evidence given by the applicant does not have a person supporting either of the sales and marketing managers. The proposed position of sales and marketing manager is unable to direct employees as to the strategies adopted and the implementation of those strategies without staff to carry out the sales and marketing plans.
48.The ‘position description for sales and marketing manager’ has two headings: Targets and duties.
a.The targets are to promote sales of products and services of the Xenia boutique to the China market through Chinese language-based de-commerce platform; and to market the brand name of ‘Xenia Boutique’ to the Chinese market.
b.The duties of the sales and marketing manager are to establish and communicate China market sales targets and goals to board of directors and employees; to develop and implement an annual market plan for China market; to direct all China markets marketing activities; develop and annual and promotion plan for Chinese market; establish and achieve China markets sales target and profitability through regular sales efforts; purchase products of quality in a competitive price manner from China specifically for the Chinese market; set up prices of products and services that are competitive for the China market; and manage the inventory level by develop and maintain a system for monitoring and controlling inventory level.
49.The above targets and duties are aspirational statements rather than the role position to be played by the sales and marketing manager. For instance, the ANZSCO tasks refer to a sales and marketing manager direct in the operations both in relation to sales and marketing. There is not any indication that the majority of the ANZSCO tasks are within the targets and duties of the applicant’s job description.
50.The Tribunal is not satisfied that the sales and manager’s position corresponds with the tasks required by the ANZSCO.
51.Accordingly, the requirements of r.5.19(4)(h) are not met.
52.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
53.The Tribunal affirms the decision under review to refuse the nomination.
Ian Berry
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).

[2018] AATA 4378

2 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction