MAN OFFICE (AUSTRALIA) PTY LTD (Migration)

[2018] AATA 2672

MAN OFFICE (AUSTRALIA) PTY LTD (Migration) [2018] AATA 2672 (11 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MAN OFFICE (AUSTRALIA) PTY LTD

CASE NUMBER:  1618361

DIBP REFERENCE(S):  BCC2016/125733

MEMBER:Bridget Cullen

DATE:11 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 11 July 2018 at 11:48am

CATCHWORDS

Migration – Sponsorship approval – Direct Entry Nomination Scheme – Regional Sponsored Migration Scheme – Genuine need for paid employee – No current employees – Nominated position – Sales and Marketing Manager – Visa applicant’s qualifications irrelevant to the proposed role – Lack of details of role duties – Practice and Procedure – Joint hearing with nominee

LEGISLATION

Migration Act 1958 (Cth), s 245AR

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 19 October 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 8 January 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination for a Sales and Marketing Manager (ANZSCO 131112), seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant's nomination did not satisfy r.5.19(4) of the Regulations because there was insufficient evidence to establish a need for the nominator to employ a paid employee to work in the position under the nominator's direct control.

5. Mr Chi Man Li appeared as the sole director of Man Office (Australia) Pty Ltd (“Man Office”)before the Tribunal on 2 March 2018 to give evidence and present arguments. The hearing was conducted jointly with the related visa application for the proposed nominee, Ms Tongwen Li.  The Tribunal hearing was conducted with the assistance of a NAATI Level 3 accredited interpreter in the Mandarin and English languages.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

7. The Tribunal has before it the departmental file and documents provided to the Tribunal.

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. In undertaking this assessment, the Tribunal is aware that there is no formal onus of proof associated with administrative inquiries and decision-making. However, the Courts have held that it is for an applicant seeking a particular outcome to put forward material in as much detail as is necessary to enable a decision-maker to establish the relevant facts. It is not for the Tribunal to fill any gap or make out the applicant's case.

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

11. Regulation 5.19(4(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1).

12. From the information on the Department's file, the Tribunal is satisfied that the application for approval was made on the prescribed form and that the prescribed fee was paid and contains the required written certification relating to conduct that contravenes s.245AR(1).

13. The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

14. At the hearing on 2 March 2018, the applicant explained that Man Office is the parent company of Sunshine Energy Australia Pty Ltd (“Sunshine Energy”).  The applicant says that Sunshine Energy has been established for the sole purpose of the Kilcoy Solar Farm project in Queensland, in March 2017.  The applicant submits that the Kilcoy Solar Project is fully funded by Man Office.

15. The applicant has provided information from Ethos Urban (urban and regional planners), directed to Sunshine Energy, in relation to plans involving the Somerset Regional Council and the Kilcoy project.  This information establishes that Sunshine Energy has been actively engaged in planning activities involving a solar farm at Kilcoy. 

16. Additionally, the applicant has provided information indicating that Sunshine Energy has been involved in discussions with a company called Powerlink Queensland.  There are also documents provided by the applicant that relate to ecological studies conducted in relation to the proposed Kilcoy solar farm, involving Sunshine energy. 

17. The applicant says that the Sunshine Energy project is highly relevant to the nominated position.  The applicant says it will rely on the nominee to “create business footprint and develop business strategies for an implementation stage of the project,” and “the nominee will be responsible to deal with business negotiations at a top management level.”

18. In the applicant’s submissions, the applicant says that the nominated role is for a “Business Development Manager.” The applicant’s evidence is that the tasks and duties to be performed by the nominee in this role include:

    ·Directing the development and implementation of sales strategies and setting sales targets in order to maximise an organisation’s sales and customer loyalty;

    ·Directing the development and implementation of strategies to promote an organisation’s goods and services to as many people as possible;

    ·Directing the development and implementation of strategies to generate increased consumption of an organsation’s goods and services through the creation and reinforcement of “brand image” or “brand loyalty”; and

    ·Directing the development and implementation of strategies to build and maintain an organisation’s image and reputation with its customers, investors and the wider public.

19. The applicant submits that the nominated position is for the purpose of implementing the applicant’s:

    “marketing strategies in South East Asia and China with focus on attracting new business partners including investment and relationship management. This will further grow the company and influence its chances on its overall success. Therefore the company requires a Business Development Manager to implement such strategies that will achieve these goals.”

20. The applicant has provided the Tribunal with a copy of the advertisement it placed on “Seek” for a “Senior Business Development Manager” in a full time capacity, for a salary of $180,000-$200,000. The advertisement indicates that it was posted in the classifications for “Administration & Office Support” and “Client & Sales Administration”.  There is very little information contained in the advertisement about the actual nature of the company, or the position.  The duties listed are generic in nature.  The position is described on Seek as follows:

    The Role:

    Assist with development of operational plans and strategic initiatives for all aspects of the business

    Direct sales growth, new business pipeline and account development

    Plan, manage and oversee marketing activities in Australia and SE Asia (travelling required)

    Support and manage sales activities in Australia and SE Asia within budgets

    Maintain, develop and expand business relationship with customers and potential business partners.

21. The applicant says that it considers the salary of $182,000.00 to be reasonable, as the proposed nominee is currently working full-time permanently in China, and the applicant is matching her current salary.  The proposed nominee, Tongwen Li, gave evidence at the hearing about her proposed remuneration and benefits, were the nomination approved.  She was unable to detail whether the proposed salary was inclusive or exclusive of superannuation, and did not have a comprehensive understanding of what her remuneration would consist of. 

22. The Tribunal does not find the proposed nominee’s evidence about her current employment and remuneration, or level of skills, to be creditable.  She could respond to the Tribunal’s questions in broad terms only, indicating that she had experience in managing a factory.  At a salary of $182,000.00, which would place the proposed nominee in Australia’s top individual income tax bracket, the Tribunal would anticipate that a very senior Sales and Marketing Manager contemplating an international move with her family would understand the structure of her proposed remuneration.  As the proposed nominee did not have this understanding, and could not explain with any particularity her experience, the Tribunal places no weight on her evidence in support of the applicant’s assertion that a salary of $182,000 was warranted.

23. The Tribunal notes that approval of the nominated position at the proposed salary level would offer exemptions for the skills and English requirement for any visa applicant nominated.  The proposed nominee is a non-English speaker, and was assisted in the hearing by an interpreter.  The proposed nominee’s highest educational qualification is a “Diploma of Machinofacture Technology and Equipment” from Harbin Electrical and Mechanical College, in China.  There is no particular relevance of this qualification to the proposed role, and Ms Li was unable to explain to the Tribunal how she was qualified to be employed as a Sales and Marketing Manager, based on her experience, or her educational qualifications.

24. The evidence before the Tribunal indicates that the seek advertisement was invoiced to the applicant by Seek on 30 September 2015. At the top of the advertisement itself, provided by the applicant, it indicates that the applicant’s account is “on credit hold” and indicates that the applicant should “contact finance on 1 300 888 079”. 

25. The applicant acknowledges that it has no employees.  If approved, the nominee would be the sole employee of the applicant, on a salary that is significantly above market rate.  Despite having no employees, the applicant says that it has “several businesses in various areas, namely, project development, import and export businesses, Glass factory and property development.”  The applicant has provided some information, including financial statements from the period ending 30 June 2013, relating to a company called Glass Tech Australia Pty Ltd ABN 16 156 002 149.  There is no explanation about the relationship that the nominee would have, if any, in relation to Glass Tech Australia. 

26. There is no compelling evidence to explain what the need is for a full-time employee in a Sales and Marketing Manager role (called Business Development Manager by the applicant).  There is limited information about what the business activities of the applicant are on a day-to-day basis, what it considers its “market” to be, what its development strategies are, and who its clients are.  The job description is limited, generic in nature, and provides cursory detail, only.  The attempts made at advertising the role on Seek by the applicant are tokenistic at best, and suggest that the role is not genuine, and that advertising was done for immigration outcome purposes.

27. The applicant has provided, to the Department at the time of application, a copy of a letter from the Australian Capital Territory Government, Small Business and Skills body, indicating that as the Regional Certifying Body, it decided to support the applicant’s nomination under the Regional Sponsored Migration Scheme.  The emailed letter is dated 1 March 2016, in advance of the Department’s refusal or consideration of the nomination application.  There is no explanation in the letter as to the reasons the ACT Government determined that it would support the application.  As the ACT Government would not have had access to the same information as the Department, or of the Tribunal, the Tribunal considers that letter to be of limited utility.

28. On the evidence, the Tribunal cannot be satisfied that a business with no employees, no sophisticated business plan and limited evidence of its purported business activities has a need for a Sales and Marketing Manager on a salary of $182,000. Further, the need for the position is not supported by the limited recruitment efforts, or the evidence provided by the applicant in respect of the motivation for nominating the position.

29. Accordingly, the requirement in r.5.19(4)(a) is not met. As the applicant has not satisfied the criteria in r.5.19(4)(a), the Tribunal is not required to conduct an assessment of the remaining criteria in r.5.19(4).

30. 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

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

    Bridget Cullen
    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).