KRYSTAL KLEAR SERVICES PTY LTD (Migration)

[2018] AATA 5757

KRYSTAL KLEAR SERVICES PTY LTD (Migration) [2018] AATA 5757 (22 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Krystal Klear Services Pty Ltd

CASE NUMBER:  1707957

DIBP REFERENCE(S):  BCC2016/4034375

MEMBER:K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:          22 November 2018 at 4:32 pm (QLD time)

DATE OF WRITTEN RECORD:                10 December 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination.

CATCHWORDS
MIGRATION – nomination – Contract Administrator – position not genuine – simplistic contracting tasks not commensurate with higher level tasks of contract administrator – nominee applicant’s husband – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 140GB, 359
Migration Regulations 1994, rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (‘the Act’) and r.2.72 of the Migration Regulations 1994 (‘the Regulations’).

2. At the hearing on 22 November 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 April 2017 to refuse to approve the applicant’s nomination under section 140GB of the Migration Act 1958, otherwise known as the Act, and regulation 2.72 of the Migration Regulations 1994, otherwise known as the Regulations.

4. The applicant applied for approval on 30 November 2016. A nomination of an occupation for a subclass 457 visa is made under section 140GB of the Act and Regulation 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. For applications made from 23 November 2013, additional criteria are specified in section 140GBA.

5. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72(10)(f) due to a lack of satisfaction that the position associated with the nominated occupation of contract administrator is genuine. 

6. On 12 April 2017, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with their application for review. On 29 August 2018, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act, inviting them to provide current information addressing the relevant criteria under regulation 2.72 of the Regulations and section 140GB of the Act. The Tribunal notes that this invitation made specific reference to the matter of the caveat or inapplicability condition contained in instrument IMMI 17/060.

7. In response, on 12 September 2018 the Tribunal received material including but not limited to written submissions, financial records, ASIC records, standard business sponsorship approval notice, an employment contract position description and an organisational chart.  All material received prior to the review hearing has been duly considered by the Tribunal.

8. The applicant through its sole director, Mrs Suhani Shah, who is also the wife and the secondary visa applicant of the nominee, Mr Hemalkumar Shah, appeared before the Tribunal on 22 November 2018 to give evidence and present arguments.  The Tribunal also received oral evidence from the nominee, Mr Hemalkumar Shah.  The applicant was represented in relation to the review by its registered migration agent and an observer of the registered migration agent attended the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in regulation 2.72: see section 140GB(2) of the Act. In addition, for nominations made from 23 November 2013, section 140GBA must be met.

10. The nominated person in a nominated application is Mr Hemalkumar Shah. He is nominated pursuant to section 140GB of the Act on the basis that he will work in the occupation of contract administrator. Accordingly the Tribunal is satisfied that the applicable provision in this case is regulation 2.72 as in force immediately before 18 March 2018.

11. A key consideration in the present matter is whether the applicant meets the requirements of regulation 2.72(10)(f), position must be genuine.

    Position must be genuine

12. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.  This was considered in the matter of Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

13. The applicant nominated the occupation of contract administrator which is coded as number 51111 in the Australian and New Zealand Standard Classification of Occupations (known as ANZSCO).  The ANZSCO provides an indicative list of tasks that a person fulfilling the role of a contract administrator would usually perform. These are referred to in the Departmental delegate’s nomination refusal decision, a copy of which was provided by the applicant to the Tribunal.

14. In determining whether the position which the applicant seeks to fill can genuinely be described as a contract administrator role, the Tribunal has had regard to the description and tasks of the occupation as set out in the ANZSCO.  The nominated occupation of contract administrator is in the unit group 5111, contract program and project administrators. The ANZSCO sets out the indicative skill level and task for a contract administrator as follows:

    Unit Group 511 Contract, Program and Project Administrators

    Contract, program and project administrators plan and undertake administration of contracts, organisational programs, special projects and support services.

    Indicative Skill Level:

    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

15. In Australia, these are:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks include developing, reviewing and negotiating variations to contracts, programs, projects and services.  Responding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected.  Managing paperwork associated with contracts, programs, projects and services provided.  Working with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met.  Advising senior management on matters requiring attention and implementing their decisions.   Overseeing work by contractors and reporting on variations to work orders.  Preparing and reviewing submissions and reports concerning the organisation's activities.  Collecting and analysing data associated with projects undertaken, and reporting on project outcomes.  Reviewing and arranging new office accommodation.

16. Occupations within the unit group are 51111 contract administrator and there is also 51112 program or project administrator. In respect to the contract administrator, which is the occupation sought by the applicant, the alternate title is contract officer and the ANZSCO says:

    Prepares, interprets, maintains, reviews and negotiates variations to contracts on behalf of an organisation.  Skill level 2.

17. The applicant, Krystal Klear Services Pty Ltd, is a company involved in the provision of domestic and commercial cleaning services. An undated position description and an employment contract dated 29 November 2016 indicate that the nominee, Mr Hemalkumar Shah, is to be employed as a contract administrator with the following duties and responsibilities:

    Contracts (various including formal, short form and annual contracts). Drafting, evaluation, negotiation and execution. Non-disclosure agreements, sales/purchasing agreements, subcontracts, consulting agreements, licensing agreements, master agreements, review of customer proposed terms and conditions.  Distribution agreements (resellers, agents, joint marketing, et cetera.  Commercial and public (federal, state and local council) contracting.

18. Other duties and responsibilities are written as:

    Serve as the main point of contact for customers on contractual matters.  Act as a contractual middle man between company, employees and customers, ensuring timely review and approval/reconciliation of variations.  On all standard and non-standard contracts, provide red line recommendations and offer to negotiate directly with customer attorneys or purchasing staff until consensus has been reached.  Maintain contractual records and documentation such as (indistinct) control of all contract correspondence, customer contact information sheets, contractual changes, status reports and other documents for all projects.  As needed, provided guidance on contract matters to project managers or other operational staff including training new project managers and other employees in contracting practices and procedures.  Develop and implement procedures for contract management and administration and compliance with company policy.  As appropriate, contribute to or influence company policies.  Monitor compliance by company employees with established procedures.  Identify areas of recurrent pressure.  Work with management department/finance to coordinate contractual insurance requirements.  Work with finance to ensure adherence to broader financial and risk requirements such as revenue recognition, pricing and discount policies, export controls, et cetera.  May include financial engineering and understanding evaluation, economic impacts of terms and term options.  Support production management/marketing to ensure company products and services are offered with appropriate competitive terms and conditions.  Monitor competitive terms.  Monitor customer satisfaction with our terms and conditions and contracting practices.  Recommend changes.  Ensure that signed contracts are communicated to all relevant parties to provide contract visibility and awareness, interpretation to support implementation.  Handle ongoing issues and contract management.  Monitor transaction compliance (milestones, deliverables, invoicing, et cetera.)  Oversee service level agreement compliance.  Ensure contract close out extension or renewal.

    Those are the duties listed in that document.

19. The applicant provided various advertising information for similar positions including the salary of which they say is typically in the range of $44,243 to $97,938 with an average annual salary of $61,373. The employment contract which is authorised by the wife of the nominee, Mrs Shah, who is also a secondary visa applicant of the nominee, provides for remuneration of $61,373 in respect of the nominee which is her husband, Mr Shah. A submitted organisational chart indicates that Mr Shah reports to his wife, that is Mrs Shah, the director of the applicant company, Krystal Klear Services Pty Ltd.

20. The organisational chart outlines that apart from the director, Mrs Shah, and the contract administrator, the nominee, Mr Shah, there are contractors:  additional contractors in the future and cleaner’s position in future who are subordinate to the nominee. It is contended in written submissions that the applicant company employees two Australian citizens. In oral evidence during the hearing it was clarified that there are no employees of the company as such, there are a range of contractors.

21. Financial records submitted by the applicant indicate that total equity in the company as at 30 June 2017 was $26,041.01 and for the year previous it was $15,362.55.  Net profit is indicated as $10,678.46 as at 30 June 2017 and for the year previous it was $15,362.55.  No entry for wages is recorded in the trading profit and loss statement for the year ended 30 June 2017.  Submitted business activity statements for the periods July 2016 to 30 September 2016, January 2017 to March 2017, April 2017 to June 2017, July 2017 to September 2017 record zero amounts for total salary, wages and other payments and also for amount withheld from total salary, wages and other payments. The business activity statement for the period April 2018 to June 2018 records the amount of $3,500 for total salary, wages and other payments and an amount of $350 for amount withheld from total salary, wages and other payments.

22. The written submission on behalf of the applicant dated 10 September 2018 contends as follows:

    The company was incorporated in December 2015, with the business established and operating since July 2015. Documents regarding registration of the business name and ABN registration are attached. Once it was established that there was a sustainable demand for the commercial and residential cleaning service, a decision was taken to incorporate the organisation.

    The demand for reliable and effective cleaning services is expected to continue to grow due to outsourcing by commercial operators and increasing reliance on domestic cleaners.  Information from a recent market research report is attached. The nominee has advised that the business has an established client base and is operating successfully in the local market place. It is submitted that the position of customer service manager/business development coordinator is both a genuine position within the nominated occupation and a position that is genuinely required for the business. The duties to be performed fit within the scope and scale of the nominating business and are necessary for the continued success of the business.

    The nominator has advised that high value is placed on expanding the business through word of mouth referrals by satisfied customers. The profit and loss statements indicate that annual turnover dropped when the director of the then business had a child, confirming the need for the nominee to be actively involved in the business.

23. Additionally those written submissions of 10 September 2018 contend that the caveat (also known as the inapplicability condition) – see instrument IMMI 17/060 which is referred to in the section 359(2) correspondence of 29 August 2018 – does not apply to the nominated occupation due to the dates of application and refusal of the nomination or alternatively as no previous experience as a contract administrator was referred to in the job description or resume of the nominee.

24. The oral evidence of Mrs Suhani Shah, sole director of the applicant company given by and on behalf of the applicant may be summarised as follows. She believes that the delegate’s decision is not the correct decision as it did not contain a valid reason.  She requests that the nominee be given a chance to work as a contract administrator within her business.  The applicant outlined that the business of the company concerns cleaning for commercial and domestic clients.  The applicant’s clients are said to be both commercial clients and the director mentioned Mr Costa (indistinct) and Valkyrie Restaurant and Café and they also have clients in the domestic cleaning market and these are people who reside in their own houses or apartments or units.

25. The applicant director, Mrs Shah, told the Tribunal that clients engage the services of the company by responding to advertisements and then the services are engaged through an oral agreement.  She confirmed that on several occasions during the course of the review hearing.  She told the Tribunal that when the oral agreement is reached, the cleaning services are provided and then the company receives payment for those services and that she has not ever encountered a dispute with a customer in respect to the payment of services by the company.

26. Mrs Shah confirmed to the Tribunal that existing customers of the company have engaged the company’s services in an oral or verbal fashion. The nominee, Mr Hemalkumar Shah was employed by the company around 2015 but he ceased working with the company according to Mrs Shah due to issues with the visa conditions which he currently holds. Mrs Shah told the Tribunal that Mr Shah ran the company with her whilst he was working for the company. She said that there were no payments or wages made to Mr Shah. She outlined that Mr Shah currently works for another company performing cleaning services.  He does so on a part-time basis and he does so generally speaking between Monday to Friday during the hours of 6:00 pm to 10:00 pm. 

27. According to Mrs Shah, the nominee, Mr Hemalkumar Shah, came to be employed by the company because she found that he is the right person for the position. She noted that there was no advertisement to which Mr Shah responded in order to obtain his employment. 

28. Discussion was had during the review hearing about whether the director, Mrs Shah, did or did not take drawings from the company.  During the hearing it was clarified that there were figures in the financial statements which indicated this was the case and the Tribunal accepts that Mrs Shah has taken drawings from the applicant company in her role as a director.

29. According to the applicant, the nominee, Mr Hemalkumar Shah, has primarily had experience as a cleaner but she also notes that he has helped his father, who is an engineer, prepare contracts in the past and that this gives him relevant experience for the role. She also noted that he had done a diploma of business studies and again suggested that this was acceptable for the position which she sought to fill. She noted that Mr Shah currently holds a bridging visa in connection with the review. Mrs Shah confirmed that she is the husband of the nominee, Mr Shah, and that she is a secondary visa applicant on his 457 visa application and that she holds a bridging visa linked to that application.

30. When asked by the Tribunal of the nominee’s duties and responsibilities, Mrs Shah said that he will manage everything. He will find new contracts and he will arrange subcontracts for customers. The Tribunal raised with Mrs Shah that she had earlier advised that the company entered into arrangements with its customers through oral agreements and asked why the nominee would need to make such arrangements in writing in a contractual form. Mrs Shah then responded that the customers said that right now they want to do oral contracts and that they will also do this in the future.

31. Mrs Shah outlined that the company employs four cleaners: Mirav Chadri, Bargaff Chadri, Keran Chardi and Hedal Chadri. She stated that they obtained these jobs through a friend that she knew.  She stated that the four cleaners report to herself as the director. Mrs Shah also outlined that the contract administrator does not supervise anyone at the current time but the nominee in fulfilling that role in the future would supervise the cleaners at that time.

32. Discussion was then had around the organisational chart that was submitted to the Tribunal by the applicant and in due course Mrs Shah confirmed that there are no employees reflected on that chart at the present time. Rather, they are contractors.

33. The Tribunal asked Mrs Shah if she had ever had time out of the business and she confirmed on more than one occasion that she had not. This is a matter to which the Tribunal shall return shortly. The Tribunal raised with the applicant that it had submitted to the Department some examples of simple subcontractor agreements with cleaners in connection with the nomination application. Additionally, the Tribunal drew to the applicant’s attention that the submitted position description refers to the nominee executing non-disclosure agreements, sales/purchasing agreements, subcontracts, consulting agreements, licensing agreements, master agreements, review of customer proposed terms and conditions, distribution agreements (resellers, agents, joint marketing, et cetera), commercial and public (federal, state and local council contracting).

1. However, no examples of these more complex agreements have been submitted to either the Department or the Tribunal which might tend to suggest that the nominee’s occupation does not encompass the higher level tasks associated with the occupation of a contract administrator.  In response to these matters being raised with her, Mrs Shah on behalf of the applicant, following a length pause, stated that the nominee will perform these roles. She then added that the company needs the nominee to find more customers. The Tribunal raised with Mrs Shah that it might have difficulty accepting that he will be performing the higher level tasks of a contract administrator, inviting her comment.

2. The applicant responded that the nominee is eligible for that role.  She needs him to work for the company and she is losing customers without him.  She added that the nominee knows how to find customers. When asked by the Tribunal how long the director of the applicant company, being herself, Mrs Shah, had worked in the business, she advised that she had done so from its creation. It was clarified throughout the hearing that this was in the year of 2015. Mrs Shah, as earlier indicated, initially advised that she had never taken a break from the business of the company but upon questioning from the Tribunal as to whether she had children, it transpired that she took a maternity leave period of approximately eight months.

3. Mrs Shah told the Tribunal that during that time, Mirav Chadri, one of the contractors, ran the business for her and she noted that her child was born in April 2017 and during the maternity leave time, it was Mirav who was running the business. Mrs Shah attributed the inconsistent evidence she provided to the Tribunal as a misunderstanding. After careful consideration, the  Tribunal is prepared to accept that she misunderstood the question and for the sake of completeness, it accepts that she had a time of maternity leave of approximately eight months and she was not involved much at all in the business during that time.

4. The Tribunal raised with the applicant that it had submitted financial records indicating that total equity in the company as at 30 June 2017 was $26,041.01 and for the year previous it was $15,362.55.  Net profit is indicated as $10,678.46 as at 30 June 2017 and for the year previous it was $15,362.55.  No entry for wages is recorded in the trading profit and loss statement for the year ended 30 June 2017.  Further submitted business activity statements for the periods July 2016 to 30 September 2016, January 2017 to March 2017, April 2017 to June 2017, July 2017 to September 2017 record zero amounts for total salary, wages and other payments and also for amount withheld from total salary, wages and other payments.

5. The business activity statement for the period April 2018 to June 2018 records the amount of $3,500 for total salary, wages and other payments and the amount of $350 for amount withheld from total salary, wages and other payments. The Tribunal raised with the applicant that this financial information might tend to suggest that the position associated with the nominated occupation is inconsistent with the nature of the business and is not genuine.

6. Mrs Shah on behalf of the applicant responded that whilst she was pregnant, she was not able to focus on the business and the nominee also could not work due to his visa restrictions.  It was said during the hearing that the nominee has a 20 hour per week visa restriction on his current bridging visa.  Mrs Shah stated that she was losing customers and needs someone to help her.

7. The Tribunal notes that later in the hearing towards its conclusion, the representative submitted that although no payments were made for employee wages, the financial statements record that payments were made to contracted cleaners and that Mrs Shah made drawings from the company.  The Tribunal accepts this is the case.

8. The Tribunal raised with the applicant that the apparent simplistic nature of the contracting purportedly involved in the applicant’s business, the size and complexion of that business, the financial records as previously discussed, the manner in which the nominee acquired his occupational role in the business both in his past employment and in his projected future employment and the director’s family relationship and secondary visa applicant status with the nominee, might tend to suggest that the tasks of the nominee are not commensurate with the role of contract administrator, that the position was created to secure a migration outcome for both the nominee and the sole director of the applicant company and that the position is not consistent with the nature of the business.

9. Through Mrs Shah, the applicant responded in the following way. She agreed that Mr Shah is her husband. She stated that he is not working in the company now but he was before. She again outlined that he had a restriction on his visa and pointed to that being a 20 hour per week limit on work.

10. The Tribunal again raised its concerns based on the previously stated matters with Mrs Shah and invited her to make any comment that she wished, but she did not wish to do so. The Tribunal also took evidence from the nominee, Mr Hemalkumar Shah. It may be summarised as follows. He stated that his duties and responsibilities in the occupation are that he is going to work as the service and contract administrator. He said he is going to be involved in contract management with respect to both public and private clients. He referred to state, federal and local government cleaning contracts being in contemplation and he also referred to general cleaning contracts.  He again referred to private contracts with respect to cleaning in buildings.  He clarified that the contracts of which he speaks are contracts for the provision of cleaning services.

11. He stated that he has an advanced diploma in business management and he has a diploma in civil engineering from India in which he learned how to manage contracts. He stated that he started in the business in July 2015 and worked there until late December 2015 or early January 2016. The nominee indicated he came to be employed by the applicant as they decided to go with the student visa further. He stated that he needed a degree to stay in Australia. He then met with a migration agent who said that he would have trouble with the student visa path and he said he was advised to go with the company option.

12. Mr Shah, the nominee, stated that Mrs Shah, the director of the applicant company, is his wife and that they decided to start the company. He said that she advertised on Gumtree for employees but then asked him to work with her. He told the Tribunal that when he worked for the company, customers would send the company a request for a quote. He would go and inspect the property with respect to the quote and he would take a cleaner and show them everything once the quote was agreed to. Mr Shah confirmed to the Tribunal that the clients of the applicant company engaged the services of the company through just verbal agreement.  He then confirmed that he stopped working with Krystal Klear Pty Ltd after he put in his application for the 457 visa because he was limited to working only 20 hours per week.

13. The nominee confirmed he is the husband of the sole director of the applicant company. When asked about his experience with respect to the role of contract administrator, the nominee responded that when he starts working he will negotiate with clients and employees. When asked about the other staff in the company he stated that at the time he worked there, there were three to four other cleaners and he confirmed that they were subcontractors.

14. He then gave evidence that he was working with the company for approximately 20 hours a week supervising other cleaners.  He then spoke of the head office of the company he works for sending him a list of clients and tasks.  Further oral evidence was taken concerning this matter as were submissions and it was contended before the Tribunal that the nominee was actually referring to working for another company, not Krystal Klear Pty Ltd at the current time. The Tribunal, after careful reflection, is prepared to accept that this is the case and therefore accepts that Mr Shah, the nominee, is not currently working with Krystal Klear Services Pty Ltd. The nominee also spoke of his current role and referred to a primary function being the management of other cleaning staff.

15. Following the conclusion of the nominee’s oral evidence, the applicant represented by Mrs Shah confirmed she had no further evidence to provide having heard from her husband. According to the procedure in section 359AA of the Act, the Tribunal raised the following information with the applicant:

    ·During the oral evidence in the hearing today, the nominee told the Tribunal that customers engaged the services of Krystal Klear Services Pty Ltd orally. The nominee advised that his role includes managing cleaning staff and checking the progress of their work and also of customer satisfaction. His evidence did not tend to suggest that he was involved in any significant way in contract administration either previously or now or for the future. He told the Tribunal that he ceased fulltime work in around January 2016 when aware of the 20 hour work limitation on his visa and he said that he still worked with the company now. The Tribunal raised with Mrs Shah that she said he did not work in the company and raised that her oral evidence about the running of the company appeared to be inconsistent with his evidence as to his functions. 

16. The Tribunal indicated that this information is relevant to the review as it tends to suggest the position associated with the nominated occupation is not genuine and that the nomination is not genuine. The Tribunal indicated that if it were to rely upon the section 359AA information it would be the reason or part of the reason to affirm the decision under review. The applicant confirmed that they understood why the information is relevant to the review. The applicant was offered an adjournment before commenting on or responding to the information. She requested an adjournment for a duration of 15 minutes. The Tribunal granted such an adjournment and after the period adjournment the applicant, through Mrs Shah, responded to the information.

17. She stated that there were misunderstandings in the earlier oral evidence. She stated that the nominee is not working for the company. He is working for another company which is headquartered in Sydney and she reiterated that point that the nominee was not currently working for the applicant company. As previously stated, the Tribunal accepts that the applicant is not currently working for Krystal Klear Services Pty Ltd and the Tribunal has carefully considered the applicant’s response to the section 359AA information.

18. According to the procedure in section 359AA of the Act, the Tribunal also raised the following information with the applicant during the hearing:

    ·The Tribunal raised with her that both herself and the nominee gave oral evidence at the hearing which suggested the nominee has primarily worked in a cleaning role in Australia. The Tribunal raised that they had both suggested in their oral evidence that the nominee was given the job without requiring him to respond to an advertisement.  Rather, she offered the job to him. The Tribunal raised that the nominee also advised during his oral evidence that the company facilitated his 457 pathway upon advice of his lawyer, given that his student visa pathway was unlikely to meet his goals. For the sake of completeness, the Tribunal accepts that the applicant company was not setup to specifically employ him, however, the Tribunal must consider whether the applicant company was used to facilitate the 457 pathway in a genuine fashion or not.

    ·The Tribunal also raised with the applicant that the position of contract administrator in the applicant company appears not to require a minimum of two years relevant work experience and that would be contrary to the caveat or inapplicability condition for approval of the nomination relating to the occupation of contract administrator contained in instrument IMMI 17/060. 

19. The Tribunal indicated that this information is relevant to the review as it tends to suggest that the position associated with the nominated occupation is not genuine and that the nomination is prohibited by the caveat or inapplicability condition. The Tribunal indicated that if it were to rely upon the section 359AA information, it would be the reason or part of the reason to affirm the decision under review. The applicant confirmed that they understood why the information is relevant to the review. The applicant was offered an adjournment before commenting on or responding to the information, however she chose to respond immediately.

20. She said that the nominee had said to the Tribunal that he was working as an employee in the company.  She noted that they started the company in order to get money and his student visa was ceasing.  She stated to the Tribunal that the lawyer suggested the use of the Subclass 457 visa and after receiving that advice they decided that they could do this. The applicant, through Mrs Shah, again reiterated that there was a misunderstanding about the nominee and his oral evidence that he is currently working for the company and the Tribunal has previously expressed that it accepts this is not the case.  However, it notes that Mrs Shah also said that the nominee helps occasionally with her in the company.

21. The Tribunal notes that the representative made oral submissions towards the end of the hearing. Some of those have already been referred to and the Tribunal has duly considered those submissions.

    CONCLUSION

22. The Tribunal has carefully considered the relevant evidence before it, however it is not satisfied that the position which the applicant seeks to fill is in fact a contract administrator role as described in the ANZSCO. This is for the following reasons.

23. The role the applicant seeks to fill involves many simplistic contracting tasks which are not commensurate with the higher level tasks of a contract administrator as defined in ANZSCO.  Both the applicant and the nominee described the manner in which the company engaged with its clients for services and that was described on several occasions as being done by way of oral agreement. Although reference was made to contracts which will be entered into with government entities including local, state and federal, the Tribunal is not satisfied that these are in fact higher level agreements in terms of complexity that require the services of a contract administrator as defined in ANZSCO.

24. The size and complexion of the applicant business, the financial records denoting its relatively small scale nature and that there has been no payment of wages to actual employees for a significant period of time, notwithstanding that there are noted to be payments to contractors and director drawings,  those matters combined with the manner in which the nominee acquired his past and projected future occupational role in the business and the director’s family relationship and secondary visa applicant status with the nominee point to the tasks of the nominee not being commensurate with the role of contract administrator, that the position was created to secure a migration outcome for both the nominee and the sole director of the applicant company and that the position is not consistent with the nature of the business.

25. On balance, the evidence before the Tribunal strongly suggests that the position associated with the nominated occupation is a sham. The Tribunal is therefore not satisfied that the position can genuinely be classified as a contract administrator. Accordingly, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. For these reasons, the requirements in regulation 2.72(10)(f) are not met.

26. Given this finding, it is unnecessary for the Tribunal to make further findings in this review.

27. For the reasons outlined today, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

28. The Tribunal, constituted by Member Chapman, affirms the decision not to approve the nomination at 4:32 pm on Thursday, 22 November 2018.

    DECISION

29. The Tribunal affirms the decision not to approve the nomination.

    K. Chapman
    Member