Mobile Data Evaluations PTY LTD (Migration)

[2019] AATA 1533

Mobile Data Evaluations PTY LTD (Migration) [2019] AATA 1533 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mobile Data Evaluations PTY LTD

CASE NUMBER:  1700362

HOME AFFAIRS REFERENCE(S):           BCC2016/3553178

MEMBER:Catherine Carney-Orsborn

DATE:5 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 05 March 2019 at 5:18pm

CATCHWORDS
MIGRATION – nomination refusal– standard business sponsor – contract administrator – the position is not a genuine position – nominated occupation corresponds to a specified occupation – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 140GB
Migration Regulations 1994, rr 2.72, 2.73

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 and Border Protection on 20 December 2016 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 25 October 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72(10)(aa) because they were not satisfied that the nominated position was a contract administrator.

4. The applicant appeared before the Tribunal on 19 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.

2. The applicant company provided further documentation.  This included letters from suppliers indicating that the applicant company (the applicant) is the sole sales representative in Australia, financial documents, company extracts in relation to a second associated company, invoice documents, promotional material, BAS statements, organisational charts, purchase orders, employment contracts, sales contracts and other documents.

3. The Tribunal discussed the documents provided.  The Tribunal pointed out that it also had the documents on the Department file before it.

4. The applicant company was represented by its Chairwoman and Managing Director. 

5. The Tribunal took oral evidence from the Chairwoman and Managing Director.  The applicant’s evidence is that the position which was listed in the visa application lodged with the Department in December 2016 was a new position.  She stated that the company was expanding and they made a decision they needed a new position especially to deal with the Chinese companies.  She stated that the company had expanded further since that application in 2016.  She said that they needed the right person for the position, that the position is currently shared between employees and they have started selling new products from March 2018.  They are selling to Amazon and ebay.

6. The Tribunal asked if the nominee has ever worked for the company.  She indicated the nominee had not worked for the company.  The Tribunal asked if the nominee had ever worked in the role of a contract administrator.  The applicant replied with words to the effect that from the nominee’s CV she had worked as a project administrator for a company which she thought was called something like “Home renos”.  She claimed that before that the nominee had worked in banking in China for over 20 years.  Her evidence is that they want someone who could deal with the banks in China she said words to the effect that when they deal with exchange rates in contracts they don’t know how to calculated from overseas money and she feels that because of this the company loses money.

7. Her evidence is that she needs someone who understands how business in China works and can deal with the Chinese companies.

8. The Tribunal said that it appeared that the nominee may not satisfy the caveat/inapplicable condition that are relevant to the position in the regulations.  The Tribunal discussed whether the position required two years relevant experience.  The applicant said she felt the nominee has the experience.

9. The applicant said that the nominee has been in China for some time.  She was not sure for how long.

10. The Tribunal asked what work the nominee was currently undertaking in China.  The applicant said she was not sure.  The Tribunal asked if she was in contact with the nominee.  She replied she only spoke to her from time to time to discuss how this application was going.  Other than that they did not have much contact.

11. The applicant said that they all (the employees) have to be multi-skilled and they are all taking on the position.

12. The Tribunal referred to the organisational chart and pointed out that it appeared that all the employees except one were of Chinese background.  The Tribunal pointed out that they would possibly be able to understand how Chinese companies work and provide the same skill.  She said they are all sharing the nominee’s position together.

13. The Tribunal then asked the applicant to comment on why the nominee is still needed as the position is being done by the other employees, the company is expanding and according to the applicant making money.

14. The position has been vacant since the application was lodged in October 2016.  The Tribunal invited the applicant to discuss why the company would not have filled such a position which she has described as crucial to the success of the company.

15. She indicated that they need the skill of the nominee.  She said they are expanding further and she is carrying the load of the administration tasks, she hopes the nominee will take those tasks over.  The Tribunal asked her to clarify that the position was administrative.  She responded that it was administrative in relation to the contracts.

16. The Tribunal discussed that the organisational chart shows that there are all managers in the company and no workers.  She said there is no warehouse as goods are sent directly from China to Amazon in the United States.  The Tribunal asked the applicant to explain how the company was making a profit if all they did was facilitate goods going from China to the USA.

17. She replied they are now selling their goods through ebay as well.

18. The Tribunal again asked who does the administrative work involved in running a company as the organisation chart shows eight managing positions and no administrative staff or other workers.

19. She stated that the company was very small and they all multi task.

20. The Tribunal asked if all the managers were paid a salary.  She responded yes.  She said they get paid about $55,000 plus super.  The Tribunal stated that the wages bill shown on the financial documents may not cover all the costs of paying those managers. 

21. The Tribunal again asked the applicant to expand on what the managers all do.  She responded that they look for new contracts and opportunities to expand.

22. The applicant claimed the nominee was crucial to the company and her experience was essential to help the company expand however she was not able to discuss the nominee’s past experience in any detailed way.  She did not know what the applicant was currently doing in China.  She further said she only spoke to her occasionally.

23. The Tribunal would expect that if the applicant is so committed to sponsoring the nominee she would be aware of her background and what job she was currently undertaking.

24. She could not discuss whether the nominee had any relevant experience as a contracts administrator which is a high level technical job.  She referred to her hopes that the position would take some of the administrative tasks off her.   It was only when she was pressed on that point by the Tribunal that she asserted those administrative tasks are contract related.

25. Her evidence in relation to the position and her own company lacked any detail.

26. She was not able to adequately explain why all the positions in the organisations chart were listed as managers.  She could not explain who the managers were managing other than they were looking for new opportunities in China.  When pressed on the issue she stated that it was a very small company.

Regulation 2.72(1 Position must be genuine

1. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.

2. The Tribunal has considered all the evidence provided and the oral evidence as summarised above.

3. The applicant/director claims that she has fulfilled the role of contracts administrator and the administrative duties herself. 

4. The organisation chart supplied by the applicant and held on the Department file shows a small company which has only managers.  At the hearing the applicant was not able to adequately explain why there were only managers employed and no other staff even administrative staff.

5. The applicant’s evidence at hearing was that since 2016 she had covered the duties of a contract administrator.  She said that they had advertised prior to 2016 but no one had been suitable.  She claimed that she needed the nominee for her knowledge of how business and banking operates in China.  In the organisational chart all the managers except one are of Chinese background.  One could assume that all or some of the managers have knowledge of how business and banking operates in China. 

6. The business has, according to the nominator, been operating for some time and expanding.  It has managed to deal successfully with the banks in China.  She could not explain adequately why the nominee was needed and what expertise she would bring to the role.   The role of Contract Administrator is a high level role that would generally be expected to be found in a larger organisation. 

7. The applicant is a small company.  It has two directors and seven managers.  It was not clear on the evidence who the managers are managing as there was no staff below the level of manager. 

8. The Tribunal has considered all the evidence provided including evidence of the company’s customers and expansion.  The Tribunal on the evidence provided does not accept that the applicant needs a further high level position for the size of the company.

9. After consideration of the evidence and weighing that against the oral evidence of the managing director the Tribunal is not satisfied that the position is a genuine position.

10. For these reasons the requirements of r.2.72(10)(f) are not met.

Specified occupation

1. Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 17/060, and the occupation must be applicable to the person identified in the nomination in accordance with the instrument. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).

2. The nominated occupation Contract Administrator 511111 corresponds to an occupation in IMMI 17/060.  Contract Administrator is subject to inapplicability/caveat condition 1.  Condition 1 states that the nominated occupation of Contract Administrator is inapplicable to a position that does not require a minimum of 2 years’ relevant work experience.

3. The applicant claims that the nominee worked as a project administrator and in a bank in China.  She could not expand on her experience.  She stated that the nominee has never worked as a contract administrator for the nominating company.  She was not able to provide credible evidence to show that the nominee had the experience that is required.

4. The applicant submits in the written submissions that this previous work of the nominee is relevant to the nominated role however in her oral evidence she was not able to persuasively discuss what the previous relevant experience was. 

5. The Tribunal has considered as a guide the tasks of the role in ANZSCO for the occupation of Contracts Administrator.  The role of Contracts Administrator is about managing and reviewing and negotiating contracts.

6. On the evidence before it the Tribunal does not consider that project administrator is relevant to contract administrator or “working in a bank”. 

7. After considering all the evidence provided and given the claimed skill set and experience of the nominee the Tribunal is not satisfied that the position requires a minimum of 2 years’ relevant work experience.

8. On the evidence before it the Tribunal is not satisfied that there are any grounds on which to set aside the caveat/condition.

9. For these reasons the requirements of r.2.72(10)(aa) are not met.

10. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to approve the nomination.

Catherine Carney-Orsborn
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination — Subclass 457…

(1)This regulation applies to a person who is:

(a)is any of the following:

(i) a standard business sponsor;

(ii) a person who has applied to be a standard business sponsor;

(iii) a party to a work agreement (other than a Minister);

(iv) a party to negotiations to a work agreement (other than a Minister); and

(b)a party to a work agreement (other than a Minister);

who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].

(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).

(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.

(4)The Minister is satisfied that the person is:

(a)a standard business sponsor; or

(b)a party to a work agreement (other than a Minister).

(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.

(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:

(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and

(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

(7A)In addition to subregulation (6):

(a)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and

(b)if:

(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and

(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and

(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);

the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;

(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);

(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:

(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;

(b)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a standard business sponsor;

the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);

(c)if:

(i)       there is no 6-digit ANZSCO code for the nominated occupation; and

(ii)      the person is a party to a work agreement;

the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;

(d)the location or locations at which the nominated occupation is to be carried out.

(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;

(9)The Minister is satisfied that either:

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

(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

(10)If the person is a standard business sponsor — the Minister is satisfied that:

(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and

(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and

(b)if required by the instrument mentioned in paragraph (a)  or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and

(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and

(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:

(i)       are provided; or

(ii)      would be provided;

to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and

(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ASCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (a); and

(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iii)     if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ASCO; or

(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)the nominated occupation listed in the ANZSCO; or

(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:

(A)the nominated occupation is a position in the business of the standard business sponsor; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iii)     if the person lawfully operates a business in Australia:

(A)the nominated occupation is a position with a business, or an associated entity, of the person; or

(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:

(A)for the occupation in the ANZSCO; or

(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

(f)the position associated with the nominated occupation is genuine; and

(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:

(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;

(ii)      if:

(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and

(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;

(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;

(iv)     unless subparagraph (ii) applies—the holder:

(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and

(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

(h)either:

(i)       the person will:

(A)engage the visa holder, the applicant for a visa or the proposed applicant for  a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and

(B)give a copy of that contract to the Minister; or

(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:

(a)the terms and conditions of employment; and

(b)the base rate of pay, under the terms and conditions of employment;

that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.

(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:

(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and

(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and

(c)the Minister considers it reasonable to do so.

(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:

(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and

(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or

(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and

(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and

(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:

(i)       the tasks of the position include a significant majority of the tasks of:

(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or

(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and

(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.