Jumbo Interactive Limited (Migration)

[2021] AATA 2083

Jumbo Interactive Limited (Migration) [2021] AATA 2083 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jumbo Interactive Limited

CASE NUMBER:  1826751

HOME AFFAIRS REFERENCE(S):          BCC2018/545949

MEMBER:Glenn O’Brien

DATE:17 May 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 17 May 2021 at 8:23pm

CATCHWORDS

MIGRATION – nomination of a position – Direct Entry Nomination stream – position of Marketing Specialist – tasks of the position correspond to the specified occupation – terms and conditions of employment – genuine need for the position – training benchmarks – decision under review set aside      

LEGISLATION

Corporations Act 2001, s 50AAA
Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19, 5.37

CASES

Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 September 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 1 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(h)(i) of the Regulations because the delegate was not satisfied of the criteria given the absence of information provided with the application, in particular, the applicant had not demonstrated the tasks to be performed in the nominated position correspond to the tasks of an occupation specified in a legislative instrument, in this case a Marketing Specialist corresponding to ANZSCO 225113.

5. On 17 March 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act) inviting them to provide current information addressing the relevant criteria under reg 5.19 of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, financial records, ASIC information, an employment contract, an organisational chart, work samples and various training documents and invoices. All material received prior to the review hearing has been duly considered by the Tribunal.

6. Ms Alexandra Houston, legal counsel for the applicant appeared before the Tribunal on 6 May 2021 to give evidence and present arguments. Mr Mike Vereka, CEO provided written authorisation for Ms Houston to represent the applicant at the hearing.  The Tribunal also received oral evidence from Ms Perry, Head of Human Resources for the applicant.

7. The Tribunal provided the applicant until 13 May 2021 to provide post hearing submissions.  On 13 May 2021 the applicant provided further submissions and documents which have been carefully considered by the Tribunal during the course of the review.

8. The applicant was represented in relation to the review.

9. 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

10. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    The application is compliant: reg 5.19(4)(a)

11. 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 an identified person as a paid employee to work in the position under their direct control.

12. On the basis of the evidence before the Tribunal, the Tribunal is satisfied the nomination application was made using the relevant online form. Consistent with reg 5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. In completing the application, the required certification in relation to s 245AR(1) of the Act and the required identification of a need to employ a paid employee to work in the nominated position under the nominator’s control was provided in the application form.

13. Accordingly, the requirement in reg 5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)

14. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

15. Notably, the nominator is not the employer of the applicant.  The applicant is employed by Benon Technologies Pty Ltd (ACN 010 961 725) (Benon).  The applicant was established in 1986 and changed its name on 16 November 2010.  The applicant did not provide the Tribunal with specific annual financial accounts other than copies of the published Annual Report and taxation returns for 2019 and 2020.  The applicant is a listed company with revenue of some AUD71,152,000 for the year ending 30 June 2020 with profit after tax of AUD25,883.00

16. The applicant provided no evidence in relation to the relationship between the applicant and Benon other than the contract of employment which indicates the employer is Benon “a subsidiary” of the applicant. In post hearing submissions dated 13 May 2021 the applicant provided an ASIC extract of Benon and addressed s 50AAA of the Corporations Act 2001 (Cth) (the Corporations Act).

17. Benon has 100,000 shares on issue and the sole shareholder is the applicant which is the ultimate holding company of Benon. The applicant asserts that Benon is an associated entity pursuant to s 50AAA(3) of the Corporations Act.

18. Having reviewed the documents and evidence the Tribunal is satisfied the applicant and Benon are related bodies corporate (s 50AAA(2)) and the applicant controls Benon (the applicant (s 50AAA(3)). 

19. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour hire: reg 5.19(4)(c)

20. 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. 

21. The Tribunal has considered the position description and an employment contract between the applicant and the nominee initially made on 27 October 2016. The contract provides for the nominee’s direct employment by the applicant in the role of Digital Marketing Coordinator.  On 28 February 2018 the nominee’s position changed to Digital Marketing Specialist.

22. Accordingly, the requirement in reg 5.19(4)(c) is met.

    Term of employment of the visa holder: reg 5.19(4)(d)

23. 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. 

24. The Tribunal had regard to the evidence of Ms Houston, which indicated the applicant will be employed for a minimum of two years after the date of the grant of her Subclass 186 visa. Further, the Tribunal had regard to the financial records provided to the Tribunal in its annual reports. Notably, the applicant has been employed in the position since November 2016. 

25. The Tribunal is satisfied that there is no information before the Tribunal that the applicant would not be in a financial position to employ the nominee for at least two years.

26. Accordingly, the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

27. 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.

28. The applicant’s current salary increased in 2020 to $128,750 effective 13 July 2020. 

29. At the time of the application, the applicant provided to the Department a contract of an Australian citizen performing equivalent work in the same workplace at the same location which was consistent with the terms and conditions offered to the nominee.

30. Limited market research was provided by the applicant; however, Ms Perry told the Tribunal the applicant undertakes annual salary reviews and undertakes market analysis.  Notably, the nominee’s salary was increased effective 13 July 2020.  The applicant also told the Tribunal another employee who is an Australian citizen is employed in the position of Team Lead – Marketing within Jumbo Fundraising and the terms and conditions offered to the nominee are consistent with that other employee.

31. In considering the evidence before the Tribunal, the Tribunal is satisfied the nominee’s terms and conditions of employment are no less favourable that those that are, or would be offered to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

32. Accordingly, the requirements of reg 5.19(4)(e) are met.

    No adverse information known to Immigration: reg 5.19(4)(f)

33. 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. 

34. There is no information before the Tribunal to indicate there is any adverse information known to the Department about the nominator or person associated with the nominator.

35. Accordingly, the requirements of reg 5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

36. 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.

37. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia.

38. Accordingly, the requirements of reg 5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

39. 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 15/083), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

40. The Tribunal considered the genuineness of the position associated with the nominated position. In Cargo First Pty Ltd v MIBP [2016] FCA 30, the Court upheld (at [34]) the Tribunal’s approach of qualitatively assessing the position comparing this with the occupation nominated in order to determine it was genuine.

41. The nominated position is not located within regional Australia. The duties of the nominated position of Marketing Specialist (ANZSCO 225113) correspond to those of an occupation specified by the Minister in the relevant instrument and set out in Unit Group 2251 as follows:

    UNIT GROUP 2251 ADVERTISING AND MARKETING PROFESSIONALS

    
    ADVERTISING AND MARKETING PROFESSIONALS develop and coordinate advertising strategies and campaigns, determine the market for new goods and services, and identify and develop market opportunities for new and existing goods and services.

    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. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Tasks Include:

    oplanning, developing and organising advertising policies and campaigns to support sales objectives

    oadvising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services

    ocoordinating production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints

    oanalysing data regarding consumer patterns and preferences

    ointerpreting and predicting current and future consumer trends

    oresearching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information

    osupporting business growth and development through the preparation and execution of marketing objectives, policies and programs

    ocommissioning and undertaking market research to identify market opportunities for new and existing goods and services

    oadvising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels

    
    Occupations:

    225111 Advertising Specialist
    225112 Market Research Analyst
    225113 Marketing Specialist

    
    225113 MARKETING SPECIALIST
    
    Alternative Titles:

    Marketing Consultant
    Marketing Coordinator
    Marketing Officer

    
    Identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services.

    Skill Level: 1

42. The key responsibilities set out in the applicant position description include:

    Manage a mid-sized team of cross-skilled marketing resources in an agile environment to:

    ·Execute multi-channel campaigns (email, push notifications, in-app messages) with continual optimisation, and knowledge of email marketing best practices and laws

    ·Build email templates from scratch, segment/personalise data, send and report on campaigns

    ·Identify initiatives to improve business processes and accelerate growth through analysis, as well as operational execution

    ·Provide data-driven insights for key stakeholders and use them to develop future strategies to increase customer engagement

    ·Work with key stakeholders to determine priorities for communications to avoid over-communicating to keep unsubscribe numbers low and engagement high

    ·Provide ongoing analysis of customer journey and communication touchpoints to develop and improve client relations and automation activities

    Inspire an ambitious and high performing marketing team to continuously learn and grow

    Utilise your knowledge of Marketing to assist in driving priorities and helping your team reach deadlines and individual goals

    Foster an open and safe environment in which your team can explore new concepts and technologies and continuously develop their knowledge as they learn from each other, their mistakes, and external resources

    Identify and assess the development needs of your team and ensure relevant training programs, frameworks and practices exist to up skill team members and encourage knowledge sharing

    Support the business and its OKR’s through managing the team and allocating resources to ensure the committed outcomes are complete

43. The applicant provided to the Tribunal examples of work of the nominee.  The Tribunal was concerned that the nominee appeared to undertake a number of roles within the organisation including a secondment to the Client Success Team as a Marketing Solutions Manager for six months.  Notably, the nominee has held positions as a Digital Marketing Co-ordinator, Digital Marketing Specialist and Marketing Solutions Manager.  Ms Perry told the Tribunal that the nominee had undertaken a number of roles, but all were related to marketing and in particular the nominee was responsible for advertising campaigns, ensuring charity clients reach goal targets and the capture of data to analyse different target groups and devise behaviour driven campaigns.  Ms Perry told the Tribunal that the nominee’s expertise in marketing enabled the organisation to utilise those skills in many different ways through the organisation.

44. Based on the evidence of Ms Perry and having regard to the tasks of a Marketing Specialist as set out in ANZSCO, the Tribunal is satisfied that the tasks of the nominated position with the applicant correspond to the specified occupation of Marketing Specialist (ANZSCO 225113) and that this is specified as a Skill Level 1 position.

    Training benchmarks

45. The applicant did not provide any evidence of its most recent standard business sponsorship approval (SBS), or substantive evidence in relation to training expenditure during the relevant periods.

46. Adopting the procedure in s 359AA of the Act, the Tribunal put to the applicant that it had on the Tribunal file information in relation to the applicant’s last SBS approval that was granted on 14 January 2014 for the period 14 January 2014 to 14 January 2018.  The Tribunal explained to the applicant the relevance of the SBS approval in relation to training commitments, the review before the Tribunal. The Tribunal explained the consequences of relying on the information and confirmed the applicant understood the consequences of the information being relied upon. The Tribunal offered the applicant an opportunity to seek an adjournment to consider the information and comment on or respond to the information.  The applicant sought a short adjournment during the course of the hearing to consider the matter.  At the recommencement of the hearing the applicant did not seek a postponement of the hearing and elected to respond to the information during the course of the hearing.   The Tribunal, however, provided the applicant until 14 May 2021 to make any post hearing submissions in relation to its most recent SBS approval and compliance with its training commitments pursuant to the SBS.

1. The training benchmarks are set out in Schedule A of the relevant instrument as:

   The training benchmarks for an established business are:

   (A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.

   OR

   (B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

2. The applicant provided post hearing submissions in relation to training benchmarks on 13 May 2021.  Having reviewed those documents and the sample of receipts provided, the gross payroll and amounts expended on training for the relevant periods are recorded as follows:

Relevant SBS period	Gross payroll	Training expenditure	%
14 January 2014 to 13 January 2015	$7,255,962.34	$91,947.27	1.26%
14 January 2015 to 13 January 2016	$9,090,605.76	$96,991.39	1.06%
14 January 2016 to 13 January 2017	$9,267,025.33	$222,450.89	2.4%
14 January 2017 to 13 January 2018	$9,072,756.47	$118,953.32	1.3%

1. There may be slight differences in relation to the actual periods for which the payroll and training expenses have been made, however, they are a reasonable indication of the amounts expended. The last three 12-month SBS periods include graduate employment salaries which is an allowable expense in the assessment of Training Benchmark B being  “[A]ustralian employees who have completed an undergraduate or higher degree in a university within the last 2 years.”

2. Having carefully reviewed the applicant’s post hearing submissions and supporting invoices, the Tribunal is satisfied that the training obligations pursuant to its last SBS approval have been met for each 12-month period during the course of the approval period.

3. Accordingly, the requirements of reg 5.19(4)(h) are met.

4. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

   Glenn O’Brien
   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)       all 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;

   (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

   (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 the person identified under subparagraph (a)(ii), as 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).