Master Group (Aust) Pty Ltd (Migration)

[2021] AATA 5508

Master Group (Aust) Pty Ltd (Migration) [2021] AATA 5508 (6 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Group (Aust) Pty Ltd

CASE NUMBER:  1825892

HOME AFFAIRS REFERENCE(S):          BCC2018/31234

MEMBER:Mark O'Loughlin

DATE:6 September 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 06 September 2021 at 3:25pm

CATCHWORDS
MIGRATION – nomination – Direct Entry nomination stream – marketing specialist – not satisfied that the applicant has established the genuine need for the nominee to be employed in the position – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, 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 Home Affairs on 15 August 2018 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).

2. The applicant applied for approval on 19 January 2018. The requirements for the approval of the nomination of a position 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).

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 that, having considered all of the information submitted, the nominator had not identified a need for a marketing specialist.[1]

   [1] Decision of the delegate, p.5 paragraphs 8 and following.

5. The applicant has provided the Tribunal with a copy of the department’s decision dated 15 August 2018 and the Tribunal has relied on that document.

6. On 17 March 2021 the Tribunal sent the applicant an invitation to provide information.

7. The invitation complied with section 359 of the Migration Act 1958 (“the act”).

8. Included at point 7 of that invitation was a request that in cases where the nominated position is not located in regional Australia, the applicant provide information about the need to employ the nominee in the nominated position.

9. The position relevant to this matter was not located in regional Australia at the time of the application.

10. The invitation stated that if the information was not received by 31 March 2021 (or as extended), the Tribunal may make a decision on the review without taking further action to obtain the information.

11. The invitation further advised that the applicant would lose any entitlement it had under the act to appear before the Tribunal to give evidence and present arguments.

12. By email of Thursday, 8 April 2021 the applicant’s registered migration agent contacted the Tribunal to seek an extension of time within which to provide information in response to the request.

13. By then, the applicant had lost its right to a hearing.

14. The applicant sent a response to the Tribunal’s invitation to provide information on 22 April 2021. 

15. That response enclosed the following documents which the Tribunal has considered:

    ·    business registration documents,

    ·    an undated and unsigned letter on the applicant’s letterhead addressed “Dear Sir/Madam” and headed “Confirmation of Market Rate Salary / Terms and Conditions – Louise Porter”,

    ·    Unsigned financial statements and Company Tax Return for the financial year ended 30 June 2020,

    ·    Unsigned financial statements for the financial year ended 30 June 2019,

    ·    Cash Trial Balance for applicant 1 July 2020 to 31 March 2021,

    ·    Activity Statement for June 2020 quarter;

    ·    Activity Statement for September 2020 quarter,

    ·    Activity Statement for December 2020 quarter,

    ·    Letter of 22 September 2013 extending Master Group’s lease to 2018 and offering an option for a further 5 years,

    ·    Applicant’s organisational chart,

    ·    Marketing Executive Position Description,

    ·    Employment agreement between applicant and nominee signed on behalf of the applicant,

    ·    Documents relating to training,

    ·    Copies of various invitations to Agribusiness accounting software being demonstrations, workshops, and presentations,

    ·    Copies of a series of 7 emails between various persons at Master Group and MJW Communications and Media between 25 September and 9 October 2018,

    ·    Copies of 2 media releases,

    ·    “Marketing team daily planning – Azure Develops – Mar 29^th to April 16^th JPG”

    ·    “Marketing team daily planning 2 – Azure Develops – Mar 8^th to 26thJPG” and

    ·    “November 2019 – links are clickable”.

16. The email attaching the above documents stated that it included evidence about the “genuine need for the employee”.  It was not evident to the Tribunal that any of the documents provided did relate to that question.

17. The organisational chart shows that the applicant has the nominee and 3 other people in its marketing department.

18. The documents show that marketing work is done. It does not show that there is a need for that work to be done nor that there is a genuine need to employ the nominee in the position to do the marketing work.

19. The Tribunal wrote to the applicant on 12 August 2021 noting that the email of 22 April claimed to have attached supporting evidence of various matters including the “Genuine need for the employee”.

20. The Tribunal said in its letter “It is not clear that any evidence about that matter has in fact been attached”.

21. The applicant’s registered migration agent replied by email of 18 August 2021 saying:

    “As part of evidence that Ms Louise Porter is genuine, the employer prepared and submitted examples of work that Ms Porter completed part of her duties. However the evidence we have is in excess of the quota the mailbox would be able received.  Hence, we selected a number of campaigns, newsletters that Ms Porter managed.”

22. The email attached further information which is mostly further examples of marketing activities conducted by the company.

23. Most of the samples appear to be examples of work undertaken by the “marketing team” presumably under the nominee’s “management”.

24. The Tribunal is satisfied that the company undertakes a range of marketing work and that there has been an increase in the website traffic.

25. The Tribunal finds that the evidence provided does not demonstrate the extent or nature of the nominee’s involvement in the work.

26. The email of 18 August 2021 also a document entitled “Louise Porter – Work Samples Explained” (“the explanatory memo”).  It is divided into 8 sections:

    -Campaigns

    -Content

    -Events

    -Monthly Newsletters

    -Planning and Team Communications

    -Press Releases

    -Promotional Items

    -Annual website traffic 2017-2020

27. Under the heading “training” the explanatory memo says that the nominee had done some training, which had helped her to create better social media ads and that a blog the company uses for marketing had “got significantly better after this training.”

28. The document does not explain what that improvement was or how this supports the applicant’s assertion that there is a genuine need to employ the nominee in the position.

29. In the last paragraph under the heading “What’s Next”, the explanatory memo says that the company is considering rebranding and expanding into the eastern states, which will require “more content/resources and advertisement to gain new customers.”

30. The document does not explain what work will be involved nor does it explain what involvement the nominee will have.

31. It does not explain what contribution this expansion will make to the company and what improvement in profit or other expansion of the business is expected.

32. Having considered the documents provided, the Tribunal is not satisfied that the applicant has established the genuine need for the nominee to be employed in the position.

33. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 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 reg 5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Mark O'Loughlin
    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).