JASMINE EDUCATION GROUP PTY LTD (Migration)

JASMINE EDUCATION GROUP PTY LTD (Migration) [2018] AATA 2725 (22 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  JASMINE EDUCATION GROUP PTY LTD
CASE NUMBER:  1617503
DIBP REFERENCE(S):  BCC2016/709407
MEMBER:Alan McMurran
DATE:22 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 22 June 2018 at 6:13pm
CATCHWORDS
Migration – Direct Entry nomination – Teacher of English to Speakers of Other Languages – Whether there is a genuine need for the nominated position – Where evidence provided of genuine business need – Where applicant has been working in the position for 3 years previously – Other requirements of visa complied with – Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), 5.19(4)
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 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).
The applicant applied for approval on 19 February 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 occupation nominated is ANZSCO 249311, Teacher of English to Speakers of Other Languages.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (4)(a)(ii) of the Regulations because the application has not identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The applicant appeared before the Tribunal on 22 June 2018 by its director Yasseer Ibrahim, to give evidence and present arguments. Its registered migration agent represented the applicant in relation to the review.
Background
The applicant is a corporation trading in Australia under the trading names Queen Anne Business College and Queen Ann English College, from premises at Raymond Street Bankstown and Clarence Street in Sydney CBD. The applicant is a training college offering students VET[1] courses in business studies including accounting, management, HR, administration and marketing, and qualifications at the level of Certificate IV, Diploma and Advanced Diploma.
[1] Vocational Education and Training
The applicant has produced with its documents a current ASIC database extract showing company registration commencement on 2 July 2008 and current as at 22 June 2018. The applicant also has certification from the Australian government as a registered CRICOS[2] service provider, and with the ALAA[3], both of which enable the applicant to advertise and promote the Colleges as compliant with Government regulation.
[2] Commonwealth Register of Institutions and Courses for Overseas Students
[3] Applied Linguistics Association of Australia
The director who appeared at the hearing and gave evidence is the sole director and shareholder of the applicant and authorised to represent it in these proceedings. The director himself is an Australian citizen. He gave evidence that he arrived from Egypt with a Degree in accounting and obtained permanent residency and then citizenship in about 2005. He said he had obtained a Masters degree from Macquarie University in Accounting, Fnance, and then began teaching part-time after completing his accounting and business studies. He said he enjoyed teaching and consequently changed careers from the accounting profession in about 2006, when he established a non-accredited training business in Bankstown. He said shortly afterwards he obtained government accreditation as set out above, and in about 2008 commenced the current business, initially at the Bankstown address, and then in Clarence St in the CBD.
The director pointed out that it is essential to have the CRICOS accreditation to be able to attract students from overseas to study at the colleges in Australia, and that he had engaged a network of agents worldwide to recruit international students. The applicant business commenced with about 110 students in 2010, following accreditation. By 2018, the director said the applicant has a capacity at two campuses for approximately 750 students. He said current enrolments are approximately 450 students, and the breakeven for the applicant would be approximately 200 students for the business to be viable.
The applicant rents its premises in the city and at Bankstown. The Banktown premises comprise an office building with 4 classrooms and administration space, administration officers, student area and teacher rooms. The CBD location in Clarence Street contains 6 classrooms, a reception area, 4 offices, a meeting room and student area. All enrolments are students who are in Australia on student visas, and who live off campus.
The director said that he was the CEO of the applicant and responsible for hiring staff. The staff comprised himself, a principal administrator, 2 academic managers, a compliance manager, a course coordinator (VET) and teaching staff. The teaching staff is divided between VET teachers and teachers of English to speakers of other languages (ELICOS).[4] The director said there are 8 permanent part-time VET teachers and 2 full-time, and 4 English language teachers, 2 of whom are full-time (including the nominee) and 2 part-time. All of the staff are Australian citizens save for the nominee and 2 other part-time teachers.
[4] English Language Intensive Courses for Overseas Students
The director said that of the current 450 enrolments, there are 82 students in the English classes. The National ELICOS standards limit students to no more than 18 students per English class. Each English class has teaching time of 20 hours per week, and the teachers each have one class. Each class runs for approximately four hours 5 times per week.
The director said that of current prospective enrolments, at least 50% paid for and completed, there were an additional 80 students enrolled for September 2018, making a total complement of English students of approximately 160. The director said an additional 4 teachers for English would be required.
The director said the applicant advertises at least once a year on Seek in order to recruit. He said that responses varied from 15 to 60 applications on each occasion, of which approximately 25% were not qualified. Of the remainder, approximately 50% pull-out after a telephone interview for a number of different reasons, including the location of the campus at Bankstown, limited availability for part-time teachers who have other positions and competing priorities, and insufficient salary. From those that are left for interview, the director said he would normally recruit at least one or two. The workforce however is not static and he is constantly looking for teacher replacements.
The applicant said that maintaining consistency and compliance by the applicant with regulatory standards is critical for its survival. He said recently the applicant was subject to an audit by ASQA[5], and rewarded based on its compliance with an extension of its current CRICOS registration to 2024. He said the applicant is in the second tier of teaching institutions, behind universities, and its principal objective is teaching foreign students who are on student visas.
[5] Australian Skills Quality Authority
He said the applicant could only employ qualified staff who meet the regulatory standard, including the ANZSCO[6] guideline of minimum bachelor degree commensurate with a skill level I. The ANZSCO guide for teachers of English to speakers of other languages provides the following:
[6] Australian and New Zealand standard classification of occupations
UNIT GROUP 2493 TEACHERS OF ENGLISH TO SPEAKERS OF OTHER LANGUAGES

TEACHERS OF ENGLISH TO SPEAKERS OF OTHER LANGUAGES teach classes in English to students whose first language is a language other than English.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification (ANZSCO Skill Level 1).

Tasks Include:
oassessing the extent of language difficulties in students for whom English is a second language
oteaching students individually and in small groups out of the regular classroom, and assisting students within normal classroom settings
oteaching students English language skills using a variety of methods including lecture and visual demonstration
oproviding assistance to other classroom teachers by designing special teaching programs for students with English language difficulties
odesigning and producing teaching materials and adapting existing materials
opreparing course outlines and goals
oassigning lessons, correcting homework, and preparing and grading exams
The director said that the applicant wishes to engage the nominee on a full-time basis to teach enrolled students whose first language is not English. The nominee has been working in the role since at least 2014 firstly on a part-time basis and full-time since 2016.
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 approval of the nomination, all the requirements must be met.
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 Tribunal finds on the information available to it that the application for approval:
·was made on the approved form 1395, or 1395 (Internet) for post 23 March 2013 applications, and was accompanied by the fee prescribed in r.5.37; and
·has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The position is that of teacher of English to speakers of other languages, and the Tribunal finds the position exists, and that there is a need for an employee in the role who will be directly responsible to the CEO and under the direct control of the applicant nominator.
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 applicant is actively, lawfully and directly operating a business in Australia. The Tribunal finds on the available information that:
·the applicant is actively and lawfully operating a business in Australia as evidenced by the most recent ASIC extract, and has been doing so since at least 2008 in the Sydney metropolitan area;
·the applicant directly operates that business utilising two business names as set out above;
·the applicant has provided evidence in the form of taxation returns and BAS documents lodged with the Australian Taxation Office and financial information from its accountant.
The information presented to the Tribunal clearly indicates that the nominator is actively and lawfully operating its business in Australia in the Sydney metropolitan region. 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.
The principal activity of the applicant is providing teaching of specific VAT subjects to foreign students, in Australia temporarily as visitors on student visas, and the applicant does not hire out its staff or make them available for a fee to other contractors. The applicant is not a labour hire entity and the nominated position is solely within the applicant’s nominated business.
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.
The applicant has produced a copy of the employment contract entered into with the nominee. The applicant is the subject of an Award for teachers and the terms and conditions of employment reflect the conditions of that Award. Casual or part-time teachers are paid at an hourly rate equivalent to $40 per hour. Full-time salaries for teachers in the role vary from $50,000-$90,000 per annum depending on skill and experience. The nominee has approximately five years’ experience in the role and has been offered a salary of $56,000 per annum, excluding superannuation.
The written contract does not expressly exclude an extension of the employment agreement and given the experience of the nominee, the salary is within the threshold for Award employees working as teachers of English to foreign students whose first language is not English.
The agreement specifies that the position will be subject to probation and is contradictory, as the regulation is for a minimum period of two years employment. At the hearing, the director has confirmed the nominee has been in the position already for approximately 3 years and wishes to retain him for as long as possible. The Tribunal finds that there is no probationary period still relevant for the purposes, and which the director has confirmed. The director assured the Tribunal that there was no probationary period and to the extent it was in the document, it was an oversight and should be ignored. The Tribunal accepts this submission and that the minimum period of employment as required under the regulation, is for two years.
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 director gave evidence that all of the teachers employed are paid under the same Award. The applicant produced payslips from a comparable employee in support of this submission. Teachers’ salaries may differ according to seniority and the nominee is paid according to his seniority.
The Tribunal finds it is satisfied that the nominee is paid commensurately with other Australian employees doing the same work in the same location and for the same employer. The nominator has provided evidence including current payslips for the nominee’s current salary in addition to those from the comparable employee teaching 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.
The Tribunal finds that on the information available there is no adverse information known against the applicant / nominator. The Tribunal notes the applicant’s submission that there is no adverse information and from the Tribunal’s perspective, it has no reason to doubt that the information is correct.
The director was asked whether the nominator had ever been prosecuted either by the regulator (ASIC) or in respect of breaches of OH&S legislation or an account of any other regulation or requirement. The director stated that the applicant had not been prosecuted. The director was not aware of any adverse basis such as discrimination, migration fraud, criminality or financial peril (insolvency) in respect of which the applicant was liable.
The Tribunal finds that there is no reason to doubt the director’s information or that there is any adverse information concerning the applicant which might affect the nomination, and known to Immigration.[7]
[7] now Department of Home Affairs
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.
On the information available, the Tribunal is satisfied that there is no evidence to demonstrate that the applicant has not been compliant with Australian workplace laws and regulations in the workplace where the nominee operates. Relevant certifications and audit by the appropriate authority have been referred to above. The Tribunal finds the applicant has met the compliance requirements specified by regulation for teaching institutions at the VET level.
The Tribunal finds the evidence demonstrates not only an awareness by the applicant of the requirements, but active steps taken by it to employ teachers who meet accreditation requirements and teaching standards in accordance with the minimum specified by ANZSCO and the Australian government and by Fair Work Australia as regards conditions of employment. Accordingly, the Tribunal finds that the applicant has a satisfactory record of compliance.
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[8] , that the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met;
·the nominator must meet the training requirements specified in the relevant instrument where the nominator has been in business and operating for a period in excess of 12 months. The nominator has provided evidence of payment in respect of the training benchmark requirement set out the relevant instrument[9].
[8] IMMI 16/060
[9] IMMI 13/030
The training instrument requires recent expenditure by the business to the equivalent of at least 1% of the payroll of the business in the provision of training to Australian employees of the business. Evidence that can count towards this benchmark includes evidence of payment to external providers to deliver training for Australian employees.

The nominator has produced evidence in the form of receipts for payment for employees as attendees of the business, who are Australian citizens, and who have attended training sessions in the period 2016 to 2018. The training providers include Courseware Pty Ltd, JR L Strategic Marketing, J and S learning work and Reality Learning Ltd. the Tribunal finds on the evidence that the total spend on training based on a payroll of $551,816 was in excess of $26,622. This equates to approximately 4.82 % of the business payroll as funds spent on training Australian citizen employees.
For these reasons, the Tribunal finds the nominator meets the requirement in the instrument for expenditure on training relevantly during the period for which the nominator was required to meet the training benchmark.
Accordingly the requirements of r.5.19(4)(h) are met.
Findings – Summary
The Tribunal finds it is satisfied that the nominator has addressed the requirements in the regulation 5.19 (4) and that the application identifies a need for the nominator to employ a paid employee to work in the position of teacher of English language to non-English speaking students, and under the nominator’s direct control. The nominator has identified the nominee together with his experience and qualifications as the appropriate employee, subject to approval of the nomination and subsequent visa application.
The Tribunal finds it is satisfied as to the requirements (as set out above) in respect of sub-regulations 5.19(4) (b)-(h) for the nomination to be approved. The Tribunal has had the advantage of further submissions from the applicant and hearing from the director at the hearing, as regards the concerns properly raised by the delegate for the Department, concerning whether there was a need in fact for the employee. Those concerns have been met with the submissions, information and evidence now presented to the Tribunal. The Tribunal accepts that information and the written submissions provided in support.
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.
Alan McMurran
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 2725

22 June 2018

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Immigration

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