MABUZI PTY LTD ATF MABUZI TRUST (Migration)

[2018] AATA 3898

MABUZI PTY LTD ATF MABUZI TRUST (Migration) [2018] AATA 3898 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MABUZI PTY LTD ATF MABUZI TRUST

CASE NUMBER:  1720001

DIBP REFERENCE(S):  BCC2017/2300185

MEMBER:Mr S Norman

DATE:13 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 13 August 2018 at 2:40pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of the nomination – evidence of the need for a paid employee – tasks and duties of position – business plan – new business venture interstate – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 245AR, 359, 362B
Migration Regulations 1994 (Cth), r 5.19

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 Immigration on 10 August 2017 to refuse the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for approval on 28 June 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5). In this case, the applicant had 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 r.5.19(4)(a)(ii) of the Regulations because they were not satisfied there was an identified need to employ a paid employee to work in the nominated position under the nominator’s direct control.

3. The applicant was represented in relation to the review by its registered migration agent.

4. By letter dated 18 May 2018, the Tribunal wrote to the applicant (by email to their authorised recipient) advising that it had considered all the material before it relating to the nomination application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 8 August 2018. The applicant was advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice.

5. The applicant’s representative telephoned the Tribunal (21 May 2018) and advised they would not be able to attend the scheduled hearing, but that another agent may attend in their place. The Tribunal requested inter alia that this request be put in writing. No further response was received by the Tribunal (though the Tribunal was subsequently advised, the associated visa applicant/nominee had withdrawn from merits review). Neither did the applicant respond to the two SMS hearing reminder texts sent shortly prior to the scheduled Tribunal hearing. Further, the applicant did not appear before the Tribunal on the day and at the time and place at which the hearing was scheduled. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

6. For the following reasons, the Tribunal has decided to affirm the decision to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   The application is compliant: r.5.19(4)(a)

8. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

9. The nominator/applicant (Mabuzi P/L - ATF Mabuzi Trust – who ‘specialises in a variety of printing methods’[1]) lodged an online nomination application on 28 June 2017. In that application the nominated occupation was for a Sales and Marketing Manager (ANZSCO – 131112). The base salary offered was listed as $85,000 per annum (though the amount of $90,000 plus bonuses was also identified[2]).  The ANZSCO description for the position stated:

   [1] Tribunal – from folio 70.

   [2] Tribunal – folio 58.

   UNIT GROUP 1311 ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS
   ADVERTISING, PUBLIC RELATIONS AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.

   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:

   odirecting the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty

   odirecting the development and implementation of strategies to promote an organisation's goods and services to as many people as possible

   odirecting the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'

   odirecting the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public

   Occupations:

   131112 Sales and Marketing Manager
   131113 Advertising Manager
   131114 Public Relations Manager

   
   131112 SALES AND MARKETING MANAGER
   Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.

   ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.

   Skill Level: 1
   Specialisations:

   Business Development Manager
   Market Research Manager

10. The delegate was not satisfied the applicant had provided sufficient evidence to explain why there was a need for a paid employee to work in the nominated position under the nominator’s direct control. For instance, the delegate was not satisfied the applicant had provided evidence which adequately described the tasks and duties of the nominated position or how the nominated position would fit into the organisational structure. The delegate also noted the application did not identify whether this was a newly created position or if it had become available through natural attrition. Therefore, the delegate was not satisfied there was an identified need for the nominator to employ a paid employee to work in the position under the applicant’s direct control. The delegate then found that the applicant did not meet the requirement of reg 5.19(4)(a)(ii) (or reg 5.19(4)).

11. Next, the delegate noted the applicant had only provided claims against reg. 5.19(4); and that as insufficient claims and evidence had been submitted against reg. 5.19(3), that alternate regulation had also not been satisfied.

12. By s.359(2) letter of 13 February 2018, the Tribunal invited the applicant to provide updated and current information addressing the relevant criteria (being reg. 5.19 (2) and (4)). After an extension of time was granted, the applicant lodged:

    ·     A Profit and Loss statement for year ending June 2017 (profit of $116,356.05); and for year ending June 2016 (profit of $166,891.48)[3]

    ·     A “Business Plan as at March 2017”[4] – which stated inter alia ‘turnover for 2016/2017 is expected to meet or slightly exceed 2015/2016, but that growth has slowed significantly compared with the last two years’. It was also said the decline was expected to continue unless a more cost-effective model of sales and client service can be implemented’.[5]

    ·     An Activity Statement for the period April 2017 to June 2017, indicating total wages as $21,728[6]

    ·     A Tax Invoice dated 23 June 2017 (for job advertisement[7]); and News Adds dated 24 June 2017[8]

    ·     Offer of Employment[9]; and Position description[10]

    ·     Organisation chart dated 31 March 2017[11] - indicating possibly four full time staff and some part time or casual staff (and the nominee’s position was said to be then filled by the “GM”)

    [3] Tribunal – folio 27, 31, 34.

    [4] Tribunal – from folio 70 (reverse side).

    [5] Tribunal – folio 68 (reverse side).

    [6] Tribunal – folio 50.

    [7] Tribunal – folio 57 (reverse side). 

    [8] Tribunal – folio 55.

    [9] Tribunal – from folio 62.

    [10] Tribunal – from folio 58 (reverse side).

    [11] Tribunal – folio 63 (reverse side).

13. The abovementioned “Business Plan as at March 2017”[12], also referred to the Sydney market being ‘saturated’ and that a branch in Adelaide would be opened.[13] It was said the nominator’s business wished to expand to Adelaide, South Australia (where the nominee would be based) and the business wished to implement an online sales portal to streamline the process of selling product. The “Business Plan as at March 2017”[14], proposed the opening of an online sales portal - target date 31 December 2017.

    [12] Tribunal – from folio 70 (reverse side).

    [13] Tribunal – from folio 68 (reverse side).

    [14] Tribunal – from folio 70 (reverse side).

14. It was claimed that all sales activities were (currently) managed by the ‘Gen manager’ with support from a part-time sales assistant. This arrangement was not suitable as the general manager is not able to focus on other aspects of the business. The appointment of an account manager in the last two months and feedback from a manager who had resigned voluntarily was that the business needed to implement better systems for quoting and client management so the account manager or sales team could focus on relationships with their clients rather than sourcing products and preparing quotes. It was claimed that setting up the new structure in Adelaide would normally be a job for the entrepreneurs themselves, so the person employed to do this (the nominee) would need to have a natural ability towards networking, connecting and with more than five years business to business sales experience.  

15. The nominator had claimed that attracting skilled Sales and Marketing personnel remained a challenge for the business - particularly in the highly competitive workforce market in Sydney; the size of the business and its marketing budget did not warrant a full-time marketing team member; and outsourcing or contracting out marketing responsibilities had proven cost prohibitive.[15] However, it was also conceded that growth had significantly slowed compared with the prior two years.[16] It was claimed this decline was expected to continue unless a more cost-effective model of sales and client servicing could be implemented.  

    [15] Tribunal – folio 68 (reverse side).

    [16] Tribunal – from folio 68 (reverse side).

16. That being said, for nominations made before 1 July 2017, r.5.19(4)(a)(ii) requires that the application for approval ‘identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control’. For reasons not elaborated herein, the Tribunal understands it is unclear whether this requirement is directed just at (first) a statement to this effect[17] or (second) something of a more qualitative nature.[18] However, and for the purposes of this decision, the Tribunal will accept the aforementioned second interpretation of r.5.19(4)(a)(ii).

    [17] It may be argued that r.5.19(4)(a) as a whole is directed towards requirements for the application form / process of a more administrative nature, such that r.5.19(4)(a)(ii) could be met by a simple statement or certification of need.

    [18] The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. This appears to reflect Department policy (PAM3: Migration Regulations – Divisions – Div 5.3 – General > Approval of nominated positions (employer nomination) > Part C - Criteria applicable to Direct Entry stream nominations > Need for a paid employee > Applicability and overview (reissued 12/05/17 – last reissue prior to 1 July 2017).

17. The Tribunal notes it need not accept uncritically all or any evidence put by an applicant. In the present case, and notwithstanding the assertions to the contrary, the Tribunal was not satisfied the applicant would be engaged in a business venture in Adelaide; or whether that would be under the direct control of the applicant (or why the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area). Therefore, and based on the information before it, the Tribunal is not satisfied there exists an identified need for the nominator to employ an identified person as a paid employee, to work in the position under the nominator’s direct control (r.5.19(4)(ii)). Accordingly, the requirement in r.5.19(4)(a) is not met.

18. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

19. The Tribunal affirms the decision under review to refuse the nomination.

    Mr S Norman
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)     is made in accordance with subregulation (2); and

    (ii)    identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)     is actively and lawfully operating a business in Australia; and

    (ii)    directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)     the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)    the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)     are provided; or

    (ii)    would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)     both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)    all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).