Level Up Studies Pty Ltd (Migration)
[2022] AATA 4498
•19 October 2022
Level Up Studies Pty Ltd (Migration) [2022] AATA 4498 (19 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Level Up Studies Pty Ltd
REPRESENTATIVE: Mr Shixiang Li (MARN: 1798249)
CASE NUMBER: 1915421
HOME AFFAIRS REFERENCE(S): BCC2017/3325260
MEMBER:Susan Reece Jones
DATE:19 October 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 19 October 2022 at 4:28pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry nomination stream – Contract Administrator – identification of need – international education agency – business goals – maintain and manage existing contracts – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), s 360
Migration Regulations 1994 (Cth), r, 5.19
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 Home Affairs on 28 May 2019 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 (Cth) (the Regulations).
The applicant applied for approval on 12 September 2017. The requirements for the approval of the nomination of a position of Contract Administrator (ANZSCO – 511111) 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19 (4)(a)(ii) as the evidence did not demonstrate the need for the position.
On 5 July 2022 the Tribunal wrote to the applicant’s representative, Mr Shixiang Li, Director and Principal Migration Agent of EZOZ Migration, pursuant to s359(2) of the Migration Act 1994 (the Act), inviting the applicant to provide the Tribunal with further information in support of this application.
On 18 July 222 the representative submitted the following evidence:
· ASIC - Current and Historical Company Extract dated 29 May 2022
· ASIC Business name registration
· Financial Statements for 2019, 2020, 2021, 2022
· Business Activity Statements: 2017, 2018, 2019, 2020, 2021, 2022
· ANZ Bank Tax office payments 2018 to 2022
· ATO Tax returns 2017 to 2021
· Business Plan
· Organisation Chart
· Business Photographs
· LMT: Seek
· Clerks Private Sector Award 2010
· Hays Salary Guide
· McKkrs Training Benchmarks B, payment 15 September 2017 (payment $4,000)
· Training Plan from McKkrs
· Shafston International College, Kangaroo Point Qld, Apprentice Training Plans dated January and May 2022, Certificate IV for 2 employees
· ANZ Bank payments for Apprentice Training programs
· Employee Agreement for nominee at previous employer as Contractor Manager Iae Edu Net Pty Ltd dated 1 February 2013 (salary $52,000)
· Employee Agreement dated 11 September 2017 (salary $62,500)
· Employee Agreement dated 3 November 2020 (salary $98,000)
· Nominee’s PAYG and Notice of Assessments from 2013 to 2016 with Iae Net Edu Brisbane
· Nominee’s PAYG and Notice of Assessments from 2017
· Reference from Ms Yuriana Jung, Director of Iae Edu Net Pty Ltd
· Reference from Leanne Stevens, Chief Executive Officer, Emergico Migration
· VetAssess dated 21 March 2017 for Skills Assessment for Contractor Administrator
· Nominee resume
· Job Description
· Applicant Lease dated 17 May 2017 for office at Level 1, 105 Queen Street, Melbourne for a term of three years with an option of additional two years; renewal of lease dated 1 July 2022 for a period of 5 years
· Photographs of events with students as managed by the applicant
· Work examples of the nominee
· Applicant submission
In reaching a decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
The applicant was represented in relation to the review.
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 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)
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.
Based on the information in the Department of Immigration's (the Department’s) file, the Tribunal is satisfied that the application was made on the relevant form. The relevant s.245AR(1) certification was also provided in the application form.
The Tribunal has been provided with additional evidence to substantiate that the applicant has demonstrated the continuing need for the position of a Contract Administrator (ANZSCO – 511111), including a statement outlining the genuine need to employ the nominee in the nominated position.
The applicant also provided the Tribunal with an overview of its business operations, its most recent Organisation Chart and a submission as to why the nominated position is essential to the applicant’s business operations in the future.
The applicant’s submission to the Tribunal explained that the applicant’s business is an international education agency. The main business activity includes working with universities, institutions, and other related industry stakeholders such as insurance companies, and education agencies who undertake recruiting international students. The applicant outlined that it generates income from commission from recruiting international students for the relevant institutions. The applicant explained to the Tribunal that the applicant earns higher commission if it can negotiate optimal contract terms and conditions with the relevant institutions.
The applicant outlined to the Tribunal that its business partners require agreed terms and conditions and contracts with third party suppliers such as the applicant. The applicant advised that when it commenced business initially, it had to operate via third parties for commissions. In order to improve the margins of the business, the applicant sought to engage the nominee to negotiate and maintain the applicant’s contracts with institutions. If the applicant has established contracts with institutions, the application process for students is more efficient and the applicant submitted, key to earning more clients, and therefore building the applicant’s business. The applicant submitted that it needs to establish and then continuously maintain these contracts with most education institutions in Australia. For example, the applicant submitted, currently the applicant has agreements with 8 of a possible 28 universities in Australia. The universities usually operate on annual or bi-annual agreements so maintaining the ongoing contractual relationship with the universities is critical to the applicant’s business income and profitability. The applicant also submitted that it plans to develop the primary and secondary schools market, and is expanding its cooperation with other small agencies in other countries. On this basis, the applicant submitted that it requires the nominated position in order to achieve its business goals.
Based on the additional material provided upon review, the Tribunal is satisfied that the applicant has identified a need for it to employ someone in the nominated role of Contract Administrator.
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)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant commenced trading in 2016. The Tribunal has been provided with the applicant’s ASIC Certificate of Registration dated December 2016 and its ASIC Current and historical extract.
The applicant submitted that the applicant in establishing its business, assessed that there was a significant opportunity in the education market with education providers such as Melbourne University, Monash University, and Victorian TAFE’s, to introduce the services to education agents in overseas locations (Taiwan, Colombia, China, Malta) using the applicant’s contracted partners.
The applicant provided its most recent BAS and Financial Statements which show the following:
Sales income $ Salaries $ July – Sept 2020 528,412 132,221 Oct- December 2020 486,039 34,984 TOTAL Jan -March 2021 564,333 31,137 April - June 2021 527,687 29,233 July - Sept 2021 451,561 31,383 Oct- December 2021 406,633 38,414 TOTAL 1,950,214 130,617 Jan -March 2022 578,273 41,288 April – June 2022 609,488 53,083 TOTAL n/a n/a
The applicant also submitted with its quarterly BAS, its ANZ Bank payments to the ATO for its obligated tax remittances.
$ 2019 2020 2021 2022 Total income
995,388 1,392,353 2,140,045+ 2,080,519* Wages 455,181 704,234 432,376 463,900 Superannuation 42,146 63,622 39,634 46,289 Total assets
264,628 161,042 244,137 288,570 Total liabilities
176,752 72,879 32,164 40,625 + Cash Flow Boost $50,000; Jobkeeper Payment $27,000, Vic Grant $25,000
*Victorian Grant $45,400
The Tribunal notes that whilst COVID-19 has impacted the applicant’s financial performance as can be noted in the table above, the applicant has managed to maintain its educational institution contracts and income stream.
On the basis of all financial and other supporting evidence provided, the Tribunal finds that the applicant is actively, lawfully and directly operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence to suggest that the applicant operates a labour hire business.
29. Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 5.19(4)(d)
30. 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.
31. The nominee commenced working for the applicant in September 2017. The applicant’s initial Employee Agreement provided for a salary of $62,500. The applicant’s most recent employment contract signed dated 3 November 2020, with a salary of $98,000.
32. As set out in paragraph 21 above, the applicant’s Financial Statements demonstrate that the applicant has an annual turnover in excess of $2 million. On assessment of all the evidence provided, including the nominee’s most recent Employee Agreement dated 3 November 2020, the Tribunal is satisfied that the applicant has the capacity to employ the nominee in the nominated position for at least 2 years full time on the proposed salary of $98,000, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
33. Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(4)(e)
34. 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.
35. The nominee’s PAYG and Notice of Assessment show as follows:
$ 2017 2018 2019 2020 2021 2022 PAYG 38,711 48,080 62,504 81,120 Notice of Assessment 84,117 98,000
36. The Tribunal has also been provided with the nominee’s payroll from 2017 to 2022.
37. In addition, the applicant submitted the nominee’s BT Superannuation Fund statements which show that the applicant has been paying the nominee’s superannuation as obligated.
38. The applicant’s Organisation Chart shows 13 employees, of whom 3 are part time. 7 of the employees are Australian or Permanent Residents.
39. The applicant provided the Tribunal with a salary report from Hays (2021/2022) in support of the salary offered to the nominee is equivalent to market salary rate. The Hays material shows that the annual salary range in Victoria for a contract administrator in the procurement sector is $80,000-$110,000, the average rate is $90,000. The applicant submitted that it therefore meets the current market salary rate requirements.
40. The nominee reports directly to the director, Ms Tsz Lau. According to the applicant’s Organisation Chart, there is no other employee working in the same capacity as the nominee.
41. The Tribunal has had regard to salary surveys and other salary data, including from:
- the Payscale website (accessed 9 October 2022) indicates that a Contract Administrator in Australia earns between $50,000 and $103,000, or on average $68,999 per annum:
- advertisements for various full time Contract Administrator listed on Seek.com.au as at 9 October 2022 where a salary range is given is stated from $68,000 to $130,000: Refer: Contract-Administrator-jobs/in-Melbourne-VIC-3000
42. The Tribunal notes that the advertisements on Seek are primarily for Contract Manager positions in the construction and building sector.
43. The applicant also conducted labour market testing, and published job advertisements for the role. The applicant advised that the job advertisement was posted for 4 weeks on Seek. The applicant advised that there were 21 applicants, however, after filtering all candidates’ resumes, none of them met the nominated position’s requirements. The applicant provided the advertisement summary and all candidates’ information, as well as a summary about all candidates.
44. The Tribunal is satisfied that the terms and conditions contained in the nominee’s Employment Agreement and will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
45. Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
46. 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 regs 1.13A and 1.13B.
47. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
48. Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)
49. 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.
50. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.
51. 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)
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 17/080), 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.
The applicant must meet the requirements set out in the first dot point above as the nominated position and business is not located in regional Australia.
In accordance with regulation 5.19(4)(h(i), the Tribunal has had regard to IMMI 17/080 in considering the tasks will be performed in Australia and correspond to the tasks of an occupation specified in the relevant instrument, whether any additional applicability requirements for that occupation are met.
For the nominated position of Contract Administrator (ANZSCO 511111), the Tribunal has evidence which demonstrates the applicability requirements are met as set out below:
Column #
Requirements Submissions from the applicant Column 3 Specifies the Assessing authority is VETASSESS. The applicant provided VetAssess dated 21 March 2017 for Skills Assessment for Contractor Administrator. It notes that the nominee’s Bachelor of Arts awarded in Taiwan is assessed as comparable to the educational level of an AQF Bachelor Degree.
Column 4 Notes that the Inapplicability conditions set out in section 8 specify Item 1, which requires that the position does not require a minimum of 2 years’ relevant work experience.
ANZSCO indicates that the position must have at least 3 years’ work experience as an alternative to the AQF study requirements.
The nominee has worked for the applicant since 2017. On this basis, the applicability conditions set out in Column 4 for the occupation are met.
The Department in its 2019 decision stated that whilst the applicant provided its business plan, it did not provide compelling reasons to support and justify the need for Contract Administrator (ANZSCO 511111). Additionally, the applicant did not provide a statement/submission in support of the need for a Contract Administrator position.
According to the applicant’s submissions to the Tribunal in 2022, there is a genuine need for the nominee’s role for the following reasons:
· the nature of the applicant’s business being the provision of services in the education placement services where the educational providers require negotiate, confirmed agreements with partners such as the applicant
- The applicant cannot provide the student services without the contracts as the main income source of the business is from the commission received from different types of stakeholders, such as universities, insurance companies, and agencies. The commission rate is negotiated and agreed in each of the contracts
- the nominated position is required to maintain and manage existing contracts which are essential to the ongoing business of the applicant
- without negotiated contracts with relevant education institutions, the applicant’s business income will contract substantially, and it will have a dramatic effect on the applicant’s business overall.
- According to the applicant’s submission, the applicant seeks to re-establish contracts for education services offered with international overseas markets.
The applicant submitted that the nominee is the suitable person for the position because whilst the applicant director Ms Tsz Lau has a master’s degree in social work studies, she does not however have the relevant work experience in the position of the nominee. In contrast, the nominee has a Bachelor of Arts Degree (as determined by VETASSESS as noted above at paragraph 56) and has had 5 years prior work experience in a similar position in the same industry.
The nominee is considered by the applicant to be trustworthy and to carry out a critical function within the applicant’s business. The applicant submitted that the nominee is accountable for dealing with confidential information relating to the applicant’s business. The applicant further submitted that the nominee’s position is crucial to its education agency business given the requirements for contract management on the part of the applicant’s suppliers – the educational institutions.
In regard to whether the applicant meets the training requirements specified in the relevant instrument (if the business has operated for over 12 months – which in this case it has) in IMMI 17/045, The Training Benchmarks and Training Requirements specify as follows:
- The business is not required to demonstrate that they are an industry leader in training.
- The training benchmarks for an established business are:
Training Benchmark A:
Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to a training fund that operates in the same or a related industry of the business.
Or
Training Benchmark B:
Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training of employees of the business who are Australian citizens and Australian permanent residents.
The business is also required to show that the provision of training is related to the purpose of the business.
Recent expenditure for Training Benchmark B is defined as expenditure made in the previous financial year or the previous 12 months, as evidenced by a receipt for the payment(s) or a contract for employment of the relevant individual for whom salary payments are being included within expenditure that can count towards the benchmark.
Applicable expenditure
Expenditure that can count towards this benchmark includes:
a) payments for Australian employees to undertake a formal course of study, including any reasonable and necessary associated costs (e.g. costs of travelling to the training venue or access an online training programme);
b) payments to RTOs to deliver face-to-face training to Australian employees that will contribute to an Australian Qualifications Framework qualification;
c) purchase of an eLearning platform or standalone training software;
d) payments to cover the salary of Australian employees:
e) the salary of a person whose sole role is to provide training to Australian employees;
f) expenditure to attend conferences for continuing professional development.- engaged by the business as apprentices or trainees under a formal training contract, or
- who have completed an undergraduate or higher degree in a university within the last 2 years, and
- are participating in a formal, structured graduate program for up to 2 years, or completing a professional year following their graduation;
Inapplicable expenditure
Expenditure that cannot count towards this benchmark includes:
(a) on the job training that is not otherwise identified above as applicable expenditure for Training Benchmark B;
(b) training that is not relevant to the industry in which the business operates;
(c) training undertaken by persons who are principals in the business or their family members;
(d) training that has a very low skill level having regard to the characteristics and size of the business;
(e) induction training;
(f) staff salaries apportioned to time spent undertaking online or other training courses;
(g) purchase of software for use in normal duties;
(h) membership fees;
(i) purchase of books, journals or magazine subscriptions;
(j) attending conferences for purposes other than continuing professional development; and
(k) hiring a booth at a trades show, conference or expo.At the time of initial nomination in 2017, the applicant had operated its education business for less than 12 months. The applicant submitted its forecast payroll of $400,000 and a training fee of $4,000. The training fee payment was made to an approved training institution, McKkr’s Training.
In addition, the applicant submitted a detailed training plan from the same provider, McKkr’s Training, which showed that training in the form of administrative support, customer service, communication strategies and interpersonal skills for two Australian employees, Mr Yung-Hao Lao and Mr Wanseo Park. The applicant also provided evidence of the citizenship status (Australian or Permanent Resident) of the two employees, in addition to confirming their employment status with the applicant.
For this application and for the Tribunal’s assessment, the applicant provided evidence of the training fees paid in the past year, noting that payroll of the past 12 months from 1 July 2021 to 30 June 2022 was $463,990. The required training fees expense according to Training Benchmark B is 1% of this, being $4,639. The training fee paid by the applicant was $7,000 which exceeds its Training Benchmark B 1% obligation. The applicant also provided the Tribunal with evidence to demonstrate that the training was provided to four of its Australian employees by Shafston College, an accredited training institution. The Tribunal was also provided with receipts to show payment was made in the past year. The applicant also provided the Tribunal with an auditable Training Plan, namely a Certificate IV for an apprentice with Shafston College.
The Tribunal notes that the nominee is an experienced Contract Manager. The Tribunal has been provided with evidence to show that the applicant worked as Contract Administrator from 2011 to 2017 for two previous employers. Both of the nominee’s former employers, Ms Yuriana Jung, Director of Iae Edu Net and Ms. Leanne Stevens, Chief Executive Officer, Emergico Migration, submitted references in support of the nominee.
The Australian and New Zealand Standard Classification of Occupations (ANZSCO) specification for a Contract Administrator (ANZSCO – 511111) states that Contract, Administrators plan and undertake administration of contracts, organisational programs, special projects and support services. Most occupations in this unit group have a level of skill commensurate with the qualifications and experience of 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
The Tribunal notes that the nominee in this case has a Bachelor of Arts awarded in Taiwan which has been assessed by VETASSESS as comparable to the educational level of an AQF Bachelor Degree. The nominee therefore meets the indicative skill level requirements set out in ANZSCO.
The applicant’s Job Description for the nominee notes as follows:
PURPOSE OF THE ROLE
Level Up Studies Pty Ltd is a specialist Australian Education Consultancy Agency, with our
office in Melbourne Australia.
Level Up Studies has recently (2019-2021) diversified to include an Education Agency
franchise division in Colombia, Taiwan, and China, in order to attract and retain prospects
who might benefit from education in Australia.
The Education Contracts Administrator will play a pivotal role in negotiating agency
agreements with education providers, overseas health cover, franchisees and subcontracted
agency (Sub-Agency). Which, when coupled with targeted marketing efforts, will
position Level Up Studies to be able to attract suitable overseas applicants for enrolment in
educational institutions.ESSENTIAL REQUIREMENTS
• An extensive and in-depth knowledge of the Australian education system, as
regulated by the Education Services for Overseas Students Act 2000.
• A good understanding of Australia’s migration system in so far as it relates to
student visas.
• At least 5 years Previous experience with contract negotiation in the international
student education industry.HIGHLY DESIRABLE REQUIREMENTS / QUALIFICATIONS
• A Diploma level qualification or higher in a relevant discipline (eg. law, business,
administration, English language major);
• An understanding of marketing for overseas students;
• Sound working knowledge of software programs including Microsoft Office, and
the ability to learn specialised software as required.
• A friendly, pleasant manner that engages clients and other staff;
• Confidentiality and discretion.
• Willingness to travel interstate and perhaps overseas for business purposes as
required to carry out the role.
Created on 18/09/2022 15:08:04
KEY RESPONSIBILITIES
• Developing cooperation opportunities with stakeholders, such as education
institutions, sub-contractors, and insurance companies.
• Negotiating and reviewing contracts with stakeholders to achieve maximum margin
for Level Up Studies.
• Prepare, implement and collate all service level contracts on behalf of Level Up
Studies;
• Ensure that Level Up Studies has the correct systems in place to ensure contractual
obligations are met;
• Advising and responding to inquiries from colleagues about contract terms with
stakeholders, and providing solutions concerning contracts with stakeholders.
• Discussing contract issues with stakeholders and negotiating variations to the
contracts to cope with the organizational and clients' needs.
• Identifying issues arising from the contracts, and preparing reports for the senior
managers in decision making.
• Managing file storage of all contracts, and ensuring all contract end dates are
observed for renewal
• Prepare documentation for contract re-negotiation and review;
• Collecting data from the sales team and analyzing the data to compare marketing
effectiveness and signup rate. Using the result from the analysis to give advice to the
director about the following year's contracting strategy.
• Work effectively within a small team and participate actively to meet team objectives.
• Other duties may be undertaken as required.ADDITIONAL INFORMATION
• This position reports to the Managing Director directly
• This role description provides the minimum requirements for the role. The incumbent may be required to undertake other duties as required.
• Appointment to this position may be subject to criminal history check.
• All staff must comply with their responsibilities under relevant Workplace Health and Safety legislation in their place of work.The Tribunal is satisfied that the nominee’s Job Description is consistent with the requirements set out in ANZSCO and that the tasks to be performed in the nominated position correspond to the tasks of an occupation specified in the legislative instrument current at the time of nomination application.
The applicant provided multiple work examples of the nominee including contracts and communications regarding contracts with educational establishments such as The University of Queensland and Griffith University. In addition, the applicant has provided Certificates of Appointment documentation, agency agreements, and invoices for its commission payments, as well as Commission statements for the work it is undertaking.
Further, the applicant has provided the Tribunal with contracts showing the applicant engagement for Study Placement Services for their on-shore and off-shore students, into Institutions, Universities and agencies that the applicant an Agency agreement with. The applicant has also provided in support, contracts for Overseas Student Health Cover and Overseas Visitors Health Cover, Licence agreements for the Recruitment of International Students with partners in China and Malta.
The Tribunal has also had regard to the National Skills Commission’s Skills Priority List (SPL), which is produced annually to review the national skills needs of Australia (most recent edition October 2022). The SPL provides a current labour market rating and a future demand rating for occupations nationally. Current labour market ratings are also stated for occupations at a State level. Each occupation assessed is categorised into one of six categories with a “Future Demand Indicator”. The SPL states that the position of Contract Administrator (ANZSCO – 511111) is classified as having a national shortage in each Australian State (with the exception of Western Australia) and is projected to be a role with strong future demand across all States.
The Tribunal has had the benefit of considerable additional information upon review. Having reviewed all the submissions provided, both as part of the original application and to the Tribunal on review, and having regard to all of the above, the Tribunal is satisfied that the tasks of the nominated position do correspond with those listed within the relevant instrument for the designated occupation, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, the certain specified training requirements are met and that there is a genuine need for the paid position under the applicant’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident.
Accordingly, the requirements of reg 5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Susan Reece Jones
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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