Master Cleaners (Aust) Pty Ltd (Migration)

[2020] AATA 4072

Master Cleaners (Aust) Pty Ltd (Migration) [2020] AATA 4072 (1 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Cleaners (Aust) Pty Ltd

CASE NUMBER:  1920718

HOME AFFAIRS REFERENCE(S):          BCC2018/757624

MEMBER:De-Anne Kelly

DATE:01 October 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 01 October 2020 at 10:49am

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – regional certifying body located in another part of same state – need for and tasks of position – nominee employed for two years already – tasks of position compared to ANZSCO description – company’s growth and director’s plans for further expansion – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(F)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 July 2019 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 15 February 2018. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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, 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)(h)(ii)(F) of the Regulations because the regional certifying body that assessed the nomination on Form1404 was located in Toowoomba rather than the Gold Coast.

5. The applicant appeared before the Tribunal on 8 September 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.  

6. The applicant was represented in relation to the review by its registered migration agent, Ms Sylvia Arroyo MARN: 0640213 of Visa Agents Australia, New Beith, Qld 4124.

7. 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

8. 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.

9. The director appeared at another hearing earlier in the day and consented for his evidence at that hearing to be used for the purposes of this hearing.

10. The director, Mr Rick Masterton gave a condensed overview of the business. His parents had a contract cleaning company and he was living away from Nerang until 2013. He observed that his parents were working very hard; were giving money away; had no real retirement plan in place and he wanted to help them. He was very concerned about this and the fact that his parents did not own their own home. He had experience in the construction industry and saw a niche in undertaking contract cleaning for fit outs. He knew the timelines were important and that the principal contractor had to hand over the projects in a timely manner and complete that final clean. Most companies relied on local contractors and there were not a lot of companies in that niche market and it presented a huge opportunity. He applied his experience; left his own career and invested in his parent’s business.

11. The director became quite emotional and explained that it was because of the hard work and the pride in the business they have now built. His strategy was clear; there was no plan B and as a starting point they had to build a team around them, so his parents were not working 18-hour days and this was challenging. He needed a turnover of $650,000 to pay all the wages; the rent and living expenses. They got to that milestone in one year. They engage local contract cleaners rather then travelling to the local regional area themselves. If they make 10% margin on the project, they are pleased with that. They service medium size companies. They are constantly looking for new ways to add service value to what they do such as rubbish removal. They service their customers better than anyone else because they are invested in the longer-term relationship with their customer base. They start work at 4.00am and will start at any time that the customer requires them to be on site. The company now employs his two brothers on better wages than they had before. They have brought on more people. His parents have equity in the business now. The director described provided a comprehensive business plan which stated;

    Between 2012 and 2015, the nature of the services offered by MCA were focused predominantly on cleaning. Since 2015, and following the implementation of an aggressive growth strategy, MCA services have successfully implemented a diversified portfolio approach by introducing and developing an additional 4 business units to both leverage from and complement the existing cleaning unit. These business units include ‘tricky’ worksite waste removal (waste removal), transport logistical support for shop and office fit-out companies, floor preparation services and site demolition services. The approximate ratio of revenue across the business units is split between 60% cleaning services, 25% transport and rubbish removal services, 10% demolition services and 5% floor strip and seals.

12. On 15 February 2018, the applicant Master Cleaners (Australian citizen or permanent resident) Pty Ltd lodged a Regional Sponsored Migration Scheme – visa subclass 187 in the direct entry stream for the position of Sales and Marketing Manager on $67,600 per annum in favour of Mr Diego Fernando LOZANO PRADILLA.

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

13. 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.

14. Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 15 February 2018 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.

15. The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.

16. Regulation 5.19(4)(a)(ii) requires the nominator to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s control. The assessment of the need for a paid employee comprises two parts: establishing the need for an employee (i.e. there exists a vacancy for the nominated position) and ascertaining that the relationship between the nominator and nominee is that of employer and employee.

17. The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Diego Fernando Lozano Pradilla was identified in the nomination application lodged on the 15 February 2018.

18. In the hearing it was advised that Mr Diego Fernando Lozano Pradilla has worked at Master Cleaners (Aust.) Pty Ltd since 2018.

19. Accordingly, the requirement in r.5.19(4)(a) is met.

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

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

21. Current contracts with customers were provided; BAS were provided up to Q2 2020 and the ABN registration is current.

22. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

23. 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. 

24. The applicant advised that the position is not labour hire and there is no evidence that company hires labour to unrelated entities.

25. Accordingly, the requirement in r.5.19(4)(c) is met.

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

26. 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.

27. The applicant provided financial statements as below and trading figures for the two months to 31 August 2020 which when annualised show the prospects of a profitable 2020 year.

Financial Statements	2017	2018	2019	2 months to 31 August 2020	Annualise
Income	2,198,009	2,602,413	3,675,757	376,719	2,260,314
Salaries ordinary	101,015	264,912	449,547	85,532	513,192
Salaries	195,681	208,813	172,551	23,040	138,240
Superannuation	15,623	14,604	49,558	7,969	47,814
Total expenses	2,196,930	2,597,526	3,570,105	137,532	825,192
Profit	1,079	4,887	105,652	12,828	76,968

1. The company has increased turnover every year and profit is growing steadily. The nominee has been employed by the business for the past two years and it is evident that the applicant has the financial capacity such that the employee will be employed on a full-time basis in the position of Sales and Marketing Manager for at least two years.

2. An employment contract dated 6 February 2018 states that the position is ‘ongoing for at least two years’ on $67,600 per annum and signed by both the employer and nominee. These terms and conditions do not exclude an express exclusion of the possibility of extending the period of employment.

3. Accordingly, the requirement in r.5.19(4)(d) is met.

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

4. 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.

5. Payscale shows a salary range from $49,000 to $123,000 for a Sales and Marketing Manager in Brisbane with an average of $66,933. As such the salary of $67,600 is no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing the work of a Sales and Marketing Manager in Nerang, Queensland.

6. Accordingly, the requirements of r.5.19(4)(e) are met.

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

7. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

8. The Tribunal has no information before it from the Department that would constitute adverse information and a search of the ASIC website finds no adverse information about the nominator or a person associated with the nominator. This was confirmed by the applicant at the hearing.

9. Accordingly, the requirements of r.5.19(4)(f) are met.

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

10. 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.

11. The Tribunal has conducted a search of the Fair Work Ombudsman’s website and finds no unsatisfactory record of compliance for the applicant with the laws of the Commonwealth relating to workplace relations. This was confirmed by the applicant at the hearing.

12. Accordingly, the requirements of r.5.19(4)(g) are met.

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

13. 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 in an instrument and 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.

14. The Tribunal needs to determine if the position is in regional Australia. The business is located in Nerang, Queensland, postcode 4211. The definition of ‘Regional Australia’ is found in IMMI 16/045. This postcode is included in the list of postcodes for designated regional areas (IMMI 16/045) therefore the position and business are located in regional Australia. The applicant can choose therefore to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The applicant has chosen to meet r.5.19(4)(h)(ii) which provides for the second dot point above.

15. Accordingly, r.5.19(4)(h)(ii)(A) is met.

16. The Tribunal needs to consider if there is a genuine need for the applicant to employ a paid employee to work in the position under the nominator’s control. The Tribunal has noted the rapid growth of the business as evidenced by increased turnover and the need for a Sales and Marketing role to grow the business even further .It is noted that the nominee has been filling the position for the past two years and is a strong indication that there is a genuine need for the position. The Tribunal finds for the reasons above that there is a genuine need for the nominator to employ a person, Mr Diego Fernando Lozano Pradilla identified under r.5.19(4)(a)(ii) as a paid employee to work in the position of Sales and Marketing Manager under the nominator’s direct control.

17. Accordingly, r.5.19(4)(h)(ii)(B) is met.

18. The Tribunal needs to consider if the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

19. The applicant advertised on Seek.com in November 2017 for a month and in the local Gold Coast Bulletin on two separate Saturdays in November 2017. They had 10 candidates apply and a recruitment summary was provided showing two were shortlisted and of these the nominee was found to be the most suitable. Detailed reasons were provided as to why each of the candidates fell short of the advertised requirements.

20. The Tribunal finds that the position of Sales and Marketing Manager cannot be filled by an Australian citizen or permanent resident who is living in the same local area as Nerang, Qld.

21. Accordingly, r.5.19(4)(h)(ii)(C) is met.

22. The Tribunal needs to consider if the tasks of the nominated position correspond with the tasks of the position specified in the instrument as 131112 Sales and Marketing Manager. The tasks of the ANZSCO from the Australian Bureau of Statistics website, are as follows;

    Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.

    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 organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'

    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

23. The job description as below broadly corresponds with the ANZSCO and the nominee gave an overview of his role at the hearing.

    Responsibilities:

    Reporting to the director of the business, you will be responsible for:

    - working with our operational teams and senior leaders to ensure you understand our current business.

    - achieving sales and marketing operational objectives by contributing sales and marketing information and recommendations to business plans and reviews; preparing and completing action plans; identifying trends; determining business improvements; implementing change.

    - develop and review policies and procedures for the sales and marketing function for all our services.

    - meeting sales and marketing financial objectives by forecasting requirements; preparing an annual budget; scheduling expenditures; analysing variances; initiating corrective actions.

    - accomplishes sales and marketing objectives by planning, developing, implementing, and evaluating advertising, marketing and promotion programs; developing sales action plans that can be implemented in each region.

    - identifying marketing opportunities by identifying consumer requirements; defining market, competitor's share, and competitor's strengths and weaknesses; forecasting projected business; establishing targeted market share.

    - sustains rapport with key stakeholders by making periodic visits; exploring specific needs; anticipating new opportunities.

    - providing direction and feedback to team members regarding sales and marketing programs and activities.

24. Accordingly, r.5.19(4)(h)(ii)(D) is met.

25. The nominee has provided a Masters Degree in Business Advanced (Integrated Marketing Communication) from Queensland University of Technology; Bachelor Degree in Advertising from a university in Colombia; Postgraduate Diploma in Strategic Communication Management and Bachelor Degree in Social Communication and Journalism and appears qualified for the position.

26. The Tribunal finds that the occupation is applicable to the person, Mr Diego Fernando Lozano Pradilla identified under subparagraph (a)(ii) in accordance with the specification of the occupation Sales and Marketing Manager ANZSCO 131112.

1. Accordingly r.5.19(4)(h)(ii)(DA) is met.

2. The business of the nominator is located at Nerang, Qld 4211 and is in ‘that place’ that was specified in the employer nomination.

3. Accordingly, r.5.19(4)(h)(ii)(E) is met.

4. Regional certifying body approval on Form 1404 was provided dated 26 February 2018. This was signed by Mr Eric Bubeck from the Toowoomba office of the Queensland Chamber of Commerce and Industry CCIQ. The RCB application was sent to the appropriate RCB email being ‘[email protected]’ with a notice ‘Attention to the Nerang Office’. It is acknowledged that the CCIQ allocates RCB requests for assessment to the Toowoomba office whenever one of the other officers in a regional Queensland area are on leave. Toowoomba is the ‘default’ assessment office for the State of Queensland and as such it meets the requirement that it is ‘in the same State or Territory’ being Queensland as the nominated position.

5. Accordingly, r.5.19(4)(h)(ii)(F) is met.

6. Accordingly, the requirements of r.5.19(4)(h) are met.

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

   DECISION

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

   De-Anne Kelly
   Member

   
   

   ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   5.19Approval of nominated positions (employer nomination)

   …

   (2)The application must:

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

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

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

   …

   Direct Entry nomination

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

   (a)the application for approval:

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

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

   (b)the nominator:

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

   (ii)      directly operates the business; and

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

   (d)both of the following apply:

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

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

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

   (i)       are provided; or

   (ii)      would be provided;

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

   (f)either:

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

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

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

   (h)either:

   (i)       all of the following apply:

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

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

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

   (B)either:

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

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

   (ii)      all of the following apply:

   (A)the position is located in regional Australia;

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

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

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

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

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

   (F)a body that is:

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

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

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