MY STUDY HOUR PTY LTD (Migration)
[2022] AATA 1604
•10 March 2022
MY STUDY HOUR PTY LTD (Migration) [2022] AATA 1604 (10 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: MY STUDY HOUR PTY LTD
REPRESENTATIVE: Ms Jee Eun Han (MARN: 0850073)
CASE NUMBER: 1827963
HOME AFFAIRS REFERENCE(S): BCC2018/2676108
MEMBER:Stephen Witts
DATE:10 March 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 10 March 2022 at 11:29am
CATCHWORDS
MIGRATION – nomination –Private Tutor and Teacher – business is not in a position to provide full-time genuine employment – maintain residence in Australia – position associated with the occupation is not genuine – decision under review affirmedLEGISLATION
Migration Act 1958, ss 65, 140GBA, 245AR
Migration Regulations 1994, rr 2.72, 2.73, 5.19CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 September 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 17 July 2018. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific 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. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in short-term stream for the nominated position of Private Tutor and Teacher ANZSCO code 249299.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy regulation 2.72(10) because the delegate was not satisfied that the position associated with the nominated occupation is genuine.
The applicant, Mr Mohammad Ziauddin for My Study Hour Pty Ltd, appeared before the Tribunal on 10 March 2022 to give evidence and present arguments.
The Tribunal also received oral evidence from the nominee, Ms Saba Zia.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 work sponsor and meets the requirements in reg 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. In addition, the labour market testing requirements in s 140GBA must be met.
The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
The Tribunal notes that the applicant has provided to it a copy of the delegate’s decision dated 3 September 2018. In that decision the delegate asserted that based on information provided it was not able to determine the scale and scope of the operations of the business and its financial capacity to meet its wages obligations. It was stated that the business stated that it provides mathematics tutoring to primary school children from kindergarten to year six but that its website offers tutoring to students to year seven in English and mathematics and that the information provided regarding the employees in the business, specifically in regard to an English tutor, is inconsistent with other information provided. It was also stated that considering the level of trade of the business the delegate was not satisfied that there was sufficient work for the nominee to be performing the tasks of the nominated occupation on a full-time basis noting that the financial turnover of the business was $99,000 and the full-time salary of the nominee is $60,000 +9.5% super (at that time) which is an annual package of $69,405. It was also noted that despite the applicant declaring that it was a newly established business in fact departmental records indicated that the business had been an approved standard business sponsor since March 2016.
The Tribunal notes that a submission was provided by the applicant’s representative dated 20 October 2021. In this submission was provided company details, sponsorship details demonstrating a valid sponsorship until 7 June 2023, financial and business information, an organisation chart, and a job description.
The Tribunal notes that in the information provided it was stated that the total income for the business for financial year ending June 2021 was approximately $58,000 with no tax payable, and for the financial year ending June 2020 the business had a total income of $34,000 and a loss of approximately $2000.
The Tribunal also notes that the total wages and salary expenses for the 2021 financial year were $26,000. The Tribunal notes that in the 2020 financial year it was also $26,000.
The Tribunal notes that the organisation chart provided indicates that Mr Ziauddin is the sole director, and the nominee, the nominator’s wife, is the sole full-time employee and there is also a casual, Ms Ayesha Zia, their daughter.
The Tribunal notes that it was also stated that the duties and responsibilities of the position are:
plan programs of study in mathematics for individual students and groups based on relevant curriculum
assist students in one-on-one or small group tutorial sessions in mathematics
assigning problems and exercises relative to students training needs and talents
aid students with problem-solving strategies and provide support with use of principles and formulas
assessing students and offering advice, criticism and encouragement through identifying and recording common problem areas for the purpose of developing support services and reference materials
prepare students for examinations, performance and assessments as necessary
undertake continued professional development through attending professional conferences, seminars and courses, read current literature, and talking with colleagues
The Tribunal notes it was also stated that this occupation has a level of skill commensurate with a bachelor’s degree or higher qualification.
The Tribunal further notes that it was stated that the business requires a full-time experienced private maths tutor to ensure high quality professional tutoring. It was also stated that there is a continued shortage of private tutors in the industry and that the industry is growing and that the number of job openings for private tutors and teachers is expected to increase over time. The Tribunal notes that a market salary comparison was also provided.
At the hearing the Tribunal had a discussion with the nominator and the nominee regarding their application.
The nominator confirmed that the nominee was his wife of 19 years and that they have a daughter who is 17 years old and in year 12 and that she has also been working in the business. The Tribunal had a detailed discussion with the nominator noting that for the last two full financial years the total wages and salary bill for the business was $26,000 per annum. The nominator stated that up until June 2021 his wife, the nominee, was only working in the business up to 20 hours per week but also stated that since July 2021 she has been working up to full-time hours. The Tribunal noted that no material including salary, payslips or employment contracts has been provided. The nominator stated that he may be able to provide more information, the Tribunal stated that it would accept the evidence provided that the nominee has been working part-time in the business for some years but that since July 2021 she may have been working more hours up to full-time hours for the last few months. It was also stated that the business has been affected by the pandemic and is expected to improve.
The nominator stated that he and his wife bought the business in April 2019 and that prior to this his wife was working in the business for another owner on a part-time basis. He stated that the business has a future as the family have moved to South Australia from Sydney and that expenses are less in that state and that the business will expand. He stated that he is now working as a store manager with BP full-time but prior to this he was working for Woolworths.
The nominator further stated that he is currently on a bridging visa after having an application as a dependent on his wife for a 482-visa rejected by the Department and that he has a further application pending in regard to that.
The nominee stated that she first arrived in Australia in 2008 with her husband and that she was on a student visa for a period of time and that she was successful in achieving a Master of Teaching (Primary) between 2009 and 2012 from the University of Sydney and that she was then on a 485 graduate visa and then another student visa studying a part completed MBA and is now on a bridging visa.
She stated that she has been tutoring in this business under a different owner and now under the current owner, her husband as director, and that she could work at a primary school but that she enjoys the work that she is doing here, her students’ parents are very happy with her work and that she also assists students with learning difficulties and other learning gaps and that she has received many compliments from her students’ parents. She stated that most of her hours at the moment are working online with students but that she does have some face-to-face contact.
The Tribunal notes that it reviewed the duties and responsibilities of the position with the parties and that no submissions were provided in regard to aspects of the duties and responsibilities that satisfy the Tribunal that in fact the full breadth of these duties and responsibilities were actually discharged in the business.
Position must be genuine and full-time
Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement 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. In addition, r.2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.
The Tribunal has considered the evidence of the nominator and the nominee very carefully, noting that the business has had very low generated income in the last two financial years and also, in particular, that it has only been paying a salary of $26,000 in financial year 2020 and 2021 even taking into account that there is another casual employee, their daughter, working in the business as well as the nominee who assumedly also earns some form of income at least according to her parents. The Tribunal has also considered very carefully the statement by the nominator that the business may have been affected by the pandemic but notes that the nominee has stated that she is working full-time in the business now that they have moved to South Australia and that most of her work is online in any case thereby mitigating an assertion that the business is COVID affected as the nominee has stated that most of her work is online.
The Tribunal also notes that it has been asserted that the move to South Australia of recent times is anticipated to improve the quality of the business and its profitability.
As stated, the Tribunal has considered this evidence carefully, and does not find it credible. The business is marginal at best and the Tribunal is concerned about the financial material provided which has been confirmed by the nominator, who is the sole director in the business, noting further that identical low salaries have been paid in two successive years to his wife.
The Tribunal finds that the business is not in a position and will probably not be in such a position in the future that it can provide full-time genuine employment, or even part-time genuine employment to the nominee. The Tribunal in particular has considered the statement by the nominator that the move to South Australia may help the business because of reduced living expenses. The Tribunal does not accept this argument as although living expenses may be less than in Sydney it is also the case that the family have to re-establish themselves in South Australia and build up the business moving forward. The Tribunal finds that no credible evidence has been provided regarding a legitimate business plan that convinces the Tribunal that such improvements will occur.
The Tribunal has also considered the visa situation of the nominator and the nominee and is concerned that it demonstrates a pattern of mutual visa dependency that the nominator and the nominee are attempting to develop a methodology whereby they can maintain residence in Australia and that this does provide further evidence that the primary purpose of this business visa application is to maintain residence in Australia.
The Tribunal also notes as above that it was not satisfied that the parties were able to demonstrate that the full breadth of the duties and responsibilities of a private tutor were actually being discharged in accordance with ANZSCO code 249299.
As stated above the Tribunal has considered the evidence very carefully and finds that this position is not genuine. It also notes that the position is not full-time and that it is not reasonable to disregard this requirement.
For these reasons the requirements of r.2.72(10) are not met.
Concluding paragraph
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
The Tribunal affirms the decision not to approve the nomination.
Stephen Witts
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
(1)This regulation applies in relation to a person who:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) …
(iv) …
(b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):
(i) a holder of a Subclass 457 (Temporary Work (Skilled)) visa;
(ii) a holder of a Subclass 482 (Temporary Skill Shortage) visa;
(iii) an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.
(2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.
Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.
(3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.
(4)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.
(5)The Minister is satisfied that:
(a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or
(b)…
(5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.
(6)If the nominee holds:
(a)a Subclass 457 (Temporary Work (Skilled)) visa; or
(b)a Subclass 482 (Temporary Skill Shortage) visa;
the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.
(7)However, the Minister may disregard the fact that one 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.
(8)The Minister is satisfied that:
(a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:
(i) if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or
(ii) …; and
(b)the occupation applies to the nominee in accordance with the instrument or work agreement.
(9)The Minister may, by legislative instrument, specify occupations and, for each occupation:
(a)whether the occupation is:
(i) a short term skilled occupation; or
(ii) a medium and long term strategic skills occupation; and
(b)either:
(i) the 6-digit ANZSCO code for the occupation; or
(ii) if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and
(c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and
(d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:
(i) the person who nominated the occupation;
(ii) the nominee;
(iii) the occupation;
(iv) the position in which the nominee is to work;
(v) the circumstances in which the occupation is undertaken;
(vi) the circumstances in which the nominee is to be employed in the position.
(10)The Minister is satisfied that the position associated with the occupation is:
(a)genuine; and
(b)a full-time position.
(10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(11)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is not an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and
(e)the person will give the Minister a copy of the contract signed by the employer and the nominee.
(12)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the person is an overseas business sponsor; and
(c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);
the Minister is satisfied that:
(d)the nominee will be engaged only as an employee under a written contract of employment by the person; and
(e)the person will give the Minister a copy of the contract signed by the person and the nominee.
(13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …
(14)If:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;
the person has provided evidence to the Minister that the nominee satisfies:
(d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or
(e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.
(15)Subject to subregulation (16), if:
(a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and
(b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;
the Minister is satisfied that:
(c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and
(d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and
(e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and
(f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and
(g)either:
(i) there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or
(ii) it is reasonable to disregard any such information.
(16)However:
(a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:
(i) the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and
(ii) it is reasonable in the circumstances to do so; and
(aa)the Minister may disregard the criterion in paragraph (15)(e) if:
(i) under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and
(ii) the Minister is satisfied that it is reasonable in the circumstances to do so; and
(b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.
(17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.
(18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:
(a)either:
(i) there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii) it is reasonable to disregard any such information; and
(b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.
(19)…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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