MSSV Auscol Education Consultants Pty Ltd (Migration)

[2019] AATA 3751

MSSV Auscol Education Consultants Pty Ltd (Migration) [2019] AATA 3751 (5 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MSSV AUSCOL EDUCATION CONSULTANTS PTY.LTD

CASE NUMBER:  1721078

HOME AFFAIRS REFERENCE(S):           BCC2016/3562313

MEMBER:Sheridan Lee

DATE:5 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2019 at 2:23pm

CATCHWORDS
MIGRATION – nomination – Technical Sales Representative – not genuine position – lack of evidence to substantiate nominee would perform duties of position outlined in ANZSCO dictionary – lack of professional recruitment activity – Tribunal attempted to contact applicant – applicant did not respond – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 140GB
Migration Regulations 1994 (Cth), Schedule 2, rr 2.72, 2.73, 359C(1), 360(3)

CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Yang v MIAC [2010] FMCA 890

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 21 August 2017 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 26 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 meet the requirement in r.2.72(10)(f) because she was not satisfied that the position associated with the nomination was genuine.

4. The Tribunal invited that applicant to attend a call-over with a Registrar on 18 February 2019. The purpose of the call-over was to discuss the applicant’s case and ensure it was ready to be listed for a hearing.

5. Following the call-over, the Tribunal invited the applicant to provide updated and current information demonstrating that the business met all the relevant criteria in r.2.72 and s.140GBA, including but not limited to the particular criterion that the delegate found was not met. The Tribunal requested that the information be provided by 12 March 2019, noting that an extension of time could be requested prior to that time. Finally, the Tribunal advised that if the requested information was not provided within the period allowed or as extended, the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 18 March 2019, the applicant’s representative emailed the Tribunal to advise that due to technical issues with their email server, they were unaware of the communication sent by the Tribunal. The email acknowledged that as the representative, they were responsible for information received from a third party. Finally, the representative requested that the Tribunal postpone making a decision to allow for the applicant to provide documentary evidence. Additional time was provided and on 22 March 2019 a number of documents were submitted to the Tribunal for consideration.

7. As the applicant failed to respond within the prescribed period, s.359C(1) applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890.

8. The applicant made detailed submissions for consideration of the Tribunal, including company and financial records, contracts with educational providers, letters of support from business partners, promotional material, photographs of staff and premises, a copy of a lease for business premises, market salary analysis, position description, the nominee’s CV and qualifications and an organisational structure.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

    Position must be genuine

12. 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.

13. The ANZSCO occupational dictionary outlines that the tasks of a Technical Sales Representative include:

    ·compiling lists of prospective client businesses using directories and other sources

    ·acquiring and updating knowledge of employers' and competitors' goods and services, and market conditions

    ·visiting regular and prospective client businesses to establish and act on selling opportunities

    ·assessing customers' needs and recommending and explaining goods and services to them

    ·monitoring customers' changing needs and competitor activity, and reporting these developments to sales management

    ·quoting and negotiating prices and credit terms, and completing contracts and recording orders

    ·arranging delivery of goods, installation of equipment and the provision of services

    ·reporting to sales management on sales made and the marketability of goods and services

    ·following up with clients to ensure satisfaction with goods and services purchased, and resolving any problems arising

    ·preparing sales reports and maintaining and submitting records of business expenses incurred.

14. In submissions dated 18 March 2019, the applicant provided a business profile outlining that MSSV Auscol Education Consultants operates Grasshopper, a Colombian third-party education provider. Services provided by Grasshopper to students include assistance with application and enrolment, visa support, accommodation and travel booking services, and English language evaluation. Grasshopper partners with education providers in Australia to promote and market services and programs offered to Colombian students. The business profile states that Grasshopper is a registered company in both Australia and Colombia. A link to the Grasshopper website was provided as evidence of the services advertised.

15. The submissions further outline that the position is primarily responsible for selling the services of Grasshopper to Australian educational providers.  Further detail was provided in a table of comparison between the tasks of the position and the tasks outlined in the ANZSCO occupational dictionary.

16. The applicant provided a number of letters of support from representatives of institutions that have worked with the nominee:

    Maria del Rosario Orejuela, Marketing Manager at Universal Learning Group, 18 March 2018

    Alison Gutierrez, International Business Development Manager at CQ University Australia, 18 March 2019

    Cristina Bloise, Marketing Manager – South America Region at St Peter Institute, 18 March 2019

    Domenica Avila, Recruitment Manager at Greenwich English College, 18 March 2019

    Carlos Fernando Plata, Marketing Manager at Albright, 21 March 2019.

17. The letters outline that the nominee has been working in the education industry for seven years and assists with marketing and promotion of services, resulting in increased sales. Each letter emphasises that the nominee is knowledgeable and helpful. No specific examples of tasks, completed projects or sales are provided.

18. Agreements between Grasshopper and Discover English Pty Ltd (dated February 2011), IH Sydney Training Services Pty Ltd (dated February 2016) and The Gordon Institute of TAFE (dated December 2017) were provided to the Tribunal. The Tribunal notes that the agreements were not signed by the applicant on behalf of the business and other than the list of tasks provided by the employer, there is little evidence to substantiate her involvement in the negotiation of prices or setting of the terms of sale.

19. The decision of the delegate notes that the applicant previously submitted applications to nominate the nominee for the positions of Customer Service Manager (18 June 2015) and Sales and Marketing Manager (1 September 2015). In submissions of 18 March 2019, the applicant outlined that the inconsistencies were the result of the applicant being unable to accurately describe the role which the nominee was fulfilling; as the company expanded the nature of the role changed and Technical Sales Representative was selected in the most recent nomination to reflect the current role.

20. On the available evidence, the Tribunal accepts that the applicant is working for the company and that the company can financially support the position. However, while the Tribunal accepts that the applicant may be engaged in general marketing and promotional activities, the Tribunal cannot be satisfied that the nominee is performing the tasks of a Technical Sales Representative as outlined in the ANZSCO occupational dictionary. In particular, the Tribunal is concerned by the lack of evidence to substantiate that the nominee would perform duties such as generating sales reports, quoting and negotiating prices and completing contracts. The Tribunal considers that these are key aspects of the role of a Technical Sales Representative. The concern as to the specific tasks of the position is amplified by the shift of nominated positions over time.

21. In addition to concerns as to the tasks of the role, the Tribunal considers that the lack of professional recruitment activity does not support a finding that the position is genuine. As evidence of recruitment for the position, the applicant has provided screenshots of a Facebook post from 2 April 2016 calling for a Sales Representative. The applicant also supplied a copy of a post from 23 June 2015 calling for Administrative Assistant, presumably to show that Facebook has been used as a medium for other recruitment. In addition to the Facebook post, the company placed an advertisement on Gumtree on 4 April 2016.

22. Had the applicant responded to the invitation to provide information in a timely fashion, the Tribunal would have had the opportunity to question the applicant in relation to the above concerns. However, on the available evidence, the Tribunal cannot be satisfied that the position is genuine. 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.[1]

    [1] Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264, 20-30.

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

24. 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

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

    Sheridan Lee
    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.