Jasagency Pty. Ltd. (Migration)

Jasagency Pty. Ltd. (Migration) [2019] AATA 5151 (19 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Jasagency Pty. Ltd.
CASE NUMBER:  1727519
DIBP REFERENCE(S):  BCC2017/2116180
MEMBER:Andrew McLean Williams
DATE:19 November 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 19 November 2019 at 3:46pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – tasks to be performed in position – comparison of tasks in nominee’s position description and relevant ANZSCO category – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
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 23 October 2017 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 15 June 2017. 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 by seeking to satisfy the criteria in the ‘Direct Entry Nomination’ stream.
Originally, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations, because the delegate was not satisfied on the evidence then supporting the application that the tasks to be performed in the nominated position correspond to the tasks of a Liaison Officer (ANZSCO Code 224912).
The applicant, represented by Mr Aaron Finch, appeared before the Tribunal on 31 October 2019 to give evidence and make submissions. Mr Finch is a director of the Sun Pacific College in Brisbane. Sun Pacific College is the trading name of the applicant, Jasagency Pty Ltd, and Mr Finch appeared before the Tribunal with a letter of authority signed by Mr Takahisa Kasahara who is the registered company director of Jasagency Pty Ltd, duly authorising Mr Finch to speak on behalf of the applicant and to give evidence under oath in the absence of Mr Kasahara, who was overseas in Japan as at the date of the Tribunal hearing. The Tribunal also received oral evidence the nominee, Ms Yi-Han Lin.
The applicant was represented in relation to the review by its registered migration agent, Ms Chiung-Hu Chiu.
On 24 October 2019, the applicant submitted detailed written submissions, together with supporting documentary evidence to the Tribunal. Timely receipt of these submissions and evidence prior to the date set for the hearing has been of considerable assistance to the Tribunal.
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
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.
Mr Finch explained the nature of the business operated by the Applicant, noting that the applicant (trading as Sun Pacific College) has operated an English language school in Cairns for many years, offering English language tuition to fee-paying foreign students.
A unique aspect of Sun Pacific College in Cairns that differentiates it from many other English language schools is that it has facilities for students to ‘live-in’, on a residential basis. Facilities include dormitories, sporting and recreational facilities, as well as a fully-catered cafeteria with employed chefs. Post-secondary students come to Sun Pacific College for periods from a few weeks, and up to a year, or more. In addition to post-secondary students, Sun Pacific College also markets its facilities to secondary school groups, particularly in Japan and Taiwan who will come to the College as a school group for intensive English language tuition and an overseas group travel experience. Mr Finch informed the Tribunal that Taiwanese students have become an especially important market segment for the applicant, and the importance of the Taiwanese market is expected to grow considerably in the future, particularly given that the Taiwanese government has now announced a national aim to become fully bi-lingual (in Chinese and English) by 2030. As part of that, Sun Pacific College feels that it requires a Taiwanese Student Liaison Officer, who is able to deal with the day-to-day needs of a large and ever growing number of Taiwanese students, to act as an intermediary between the College, Taiwanese students, Taiwanese schools, and market agents based in Taiwan; and also with home stay families in the Cairns community who offer alternative off-campus accommodation, in the case of some students.
Mr Finch also explained that Sun Pacific College employs a number of other Liaison Officers for students from South America, Japan, and from mainland China and that other identical Liaison Officer positions previously nominated by the applicant had always been approved by the department. Mr Finch said that each Liaison Officer must be bi-lingual, and needs to be familiar with the customs and cultures of the countries for which they are responsible, as their role requires them to be able to negotiate a range of cross-cultural issues for the benefit of individual students, and in the commercial interests of the College.
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.
The applicant applied for approval of the nomination on 15 June 2017, by means of the Department of Immigration and Border Protection web portal, and in the approved on-line form. The departmental letter of that date acknowledging receipt of the application indicates that it had been accompanied by the prescribed fee. The application form itself includes the necessary written certification regarding the applicant not having engaged in any conduct contravening s.245AR(1) of the Migration Act. The fact of the making of that application itself identifies a need on the part of the applicant to employ a paid employee to work in the position of a Liaison Officer under the applicant’s direct control.
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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. The Tribunal notes that Jasagency Pty Ltd is a registered Australian company, trading under the name of Sun Pacific College, at Kewarra Beach,. Sun Pacific College operates as an English Language School for foreign students and has now been operating in Cairns for more than 18 years. The applicant has more recently expanded to an additional campus location, in the Brisbane Central Business District. Mr Finch overseas the operations of the new Brisbane campus. The Cairns campus is situated on a substantial site in suburban Cairns and offers dormitory style accommodation for foreign fee-paying students, as well as the option for home-stay accommodation in the local community, organised by the college. Profit and Loss figures prepared for the 2018-2019 financial year indicate the applicant now has an annual income in the order of $4.1 million.
Based on the evidence that is now before it the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia and directly operates that business. 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. In this case, the applicant conducts business as an English language school for foreign students and there is no suggestion that the applicant is engaged 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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Ms Yi-han Lin is from Taiwan and commenced working as a Liaison Officer for the applicant in April 2017, after having been selected as the outstanding candidate from a field of six applicants for the role when it was advertised. Ms Lin was selected from among the six applicants specifically because of her language skills combined with her great familiarity with Taiwan, her having grown up, and having been educated in Taiwan. The role is a full-time one. Ms Lin also resides on-campus, at Cairns.
In 2017-2018, Sun Pacific College had 164 Taiwanese students. Ms Lin’s role is to act as their direct liaison and support as well as to act as the intermediary between the College and approximately 70 market agents on the ground in Taiwan, and approximately 56 high schools in Taiwan, that send high school tour groups to the Applicant’s college in Cairns on short duration intensive study/holiday tours. Ms Lin is required to stay in regular contact with these agents and schools by means of skype, email and telephone. Ms Lin also has a local liaison role with families in Cairns that provide off-campus home stay accommodation for those Taiwanese students who may elect to reside off-campus.
Pursuant to an employment contract dated 1 October 2019, Ms Lin is paid a salary of $60,000 per annum (plus superannuation) and is expected to work 38 hours per week. The employment period is for 3 years from 1 November 2019 or the date of her obtaining a subclass 187 visa. That contract does not contain any clause expressly excluding the possibility of a further extension beyond the end of the initial employment period.
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.
In its written submission, the applicant specifies that non-teaching staff are employed pursuant to an enterprise agreement, yet says that salaries under the enterprise agreement have been bench-marked in accordance with Schedule D of the Education Service Award (2010). Mr Finch informed the Tribunal this is quite standard within the industry and cited examples of other English Colleges and teaching institutes (including universities) around the country that employ Student Liaison Officers on this basis.
The nominee Ms Yi-han Li, is a recent university graduate without any prior relevant work experience. As such, it was determined that her commencing remuneration should be set in accordance with Level 4.1 under that award. Initially, Ms Yi-han Li was paid $57,000 upon her appointment to the role in March 2017. This was increased to $60,000 per annum in October 2019, to reflect the fact that Ms Li has had by now developed further experience and expertise in the role. The applicant points to the fact that it also employs other Liaison Officers performing the same role as Ms Li, who are all paid comparably, yet who are working with other student cohorts, from other countries. Ms Mariana Rodrigues, an Australian staff member, who is the liaison officer for South American students, was proffered as a comparator. Ms Rodrigues is paid slightly more, $63,258.97 per annum, yet the applicant says this is solely because Ms Rodrigues has had several years more experience in the role over that of the nominee Ms Li. With further time in the role the applicant submits that Ms Li will be able to command a commensurate salary to that of Ms Rodrigues.
The Tribunal is now satisfied that the nominee is employed on terms that are no less favourable than are the terms and conditions that would be provided for an Australian citizen or an Australian permanent resident performing equivalent work in the same workplace and at the same location.
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.
No adverse information regarding the applicant or any person associated with the applicant has been drawn to the attention of the Tribunal.
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.
No information has been drawn to the attention of the Tribunal suggesting that the applicant has anything other than a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
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:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, 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.
In this case the applicant seeks to meet the requirements of r.5.19(4)(h)(ii). In relation to the matters stipulated therein, the Tribunal notes:
·the position and business is located in an area of Australia that has been declared under a regulation to be part of ‘regional Australia’, being located at Kewarra Beach, postcode 4879 ;
·on the basis of the evidence received before the Tribunal there is a genuine need to employ a paid employee to work in the position of Student Liaison Officer (Taiwan) under the nominator’s direct control;
·on the basis of an open labour market recruitment process, the nominated position was shown to be unable to be filled by a suitably qualified Australian citizen or permanent resident who is living in the same local area;
·the tasks to be performed in the position correspond to the tasks of an occupation specified by instrument IMMI 15/083. ANZSCO Category 224912 provides that a Liaison Officer “establishes and facilitates communication between different community groups, organisations and governments”. The Tribunal has examined the position description accompanying Ms Yi-han Li’s employment contract in light of ANZSCO Category 224912 and is satisfied that the tasks of the position adequately meet this description;
·that the Chamber of Commerce and Industry Queensland (CCIQ) in its capacity as a Regional Certifying Body located in the same State or Territory as the position has advised the Minister by means of a Form 1404 issued on 14 June 2017 about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C).
Accordingly, the requirements of r.5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Andrew McLean Williams
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).

[2019] AATA 5151

19 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction