Opus Recruitment Solutions Australia Pty Ltd (Migration)

Opus Recruitment Solutions Australia Pty Ltd (Migration) [2021] AATA 4877 (10 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Opus Recruitment Solutions Australia Pty Ltd
CASE NUMBER:  1833929
HOME AFFAIRS REFERENCE(S):          BCC2018/262866
MEMBER:Katie Malyon
DATE:10 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 10 November 2021 at 1:43 pm
CATCHWORDS
MIGRATION–nomination – Recruitment Consultant – genuine position – genuine need for the nominator to employ a paid employee – no adverse information – base rate of pay – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359
Migration Regulations 1994, r 2.72
CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
Mora v MIBP [2018] FCA 1819

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 29 October 2018 to refuse to approve the nomination application made by Opus Recruitment Solutions Australia Pty Ltd (the Company) under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval on 16 January 2018. 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 of the Act.
The delegate decided not to approve the Company’s nomination of the occupation of Recruitment Consultant ANZSCO 223112 for the nominee and existing employee, British national Sean Mitchell, on the basis that the Company did not satisfy r.2.72(10)(f) of the Regulations. This was because the delegate was not satisfied that the position associated with the nominated occupation is genuine. Whilst acknowledging consideration had been given not only to whether the tasks of the position align, or at least substantially align, with those of the nominated occupation as described in the Australian New Zealand Standard Classification of Occupations (ANZSCO) and whether the nominated position is consistent with the nature of the Company’s business, but also whether the position may have been created to secure a migration outcome for the nominee, the delegate concluded there was insufficient information to demonstrate the position associated with the nominated occupation is genuine. A copy of the delegate’s decision was provided to the Tribunal.
The Company was represented in relation to the review by its newly appointed registered migration agent, Ms Tanya Shroff of Deloitte Migration Services Pty Ltd.
Background
The Company is the Australian branch of a global recruitment company, Opus Professional Services Group Limited, based in London (the Opus Group). The Opus Group has offices in Bristol, London, Manchester, Amsterdam, New York and Sydney. Until recently, it also had an office in Hong Kong. The Opus Group holds 100% of shares in the Company which it established in Australia in 2014. The Company specialises in talent strategy, recruitment, performance management, retention and succession planning of its clients.
On 22 July 2021, the Tribunal wrote to the Company pursuant to s.359(2) of the Act inviting it to provide updated and current information about its business as well as the nominated occupation and thereby address all relevant requirements of both the Act and the Regulations. In response, the Company’s representative completed the Tribunal’s online Request for Business Nomination Information and provided the Tribunal with an extensive range of documentation including a letter from the Opus Group’s Global Talent and HR Director Ms Alexandra Meah dated 26 October 2021 as well as a submission addressing criteria for approval of the nomination.
After reviewing the submission and evidence provided by the representative in response to its s.359(2) letter, the Tribunal scheduled a hearing. The hearing invitation also requested the Company provide further information to demonstrate that it meets all of the criteria for approval of its nomination. Additional documentation was received prior to the hearing.
Hearing
Company Director, Craig Harman, appeared before the Tribunal on 4 November 2021 to give evidence and present arguments on behalf of the Company at a MS Teams video hearing. The Tribunal’s hearing was conducted as a combined hearing with the Tribunal’s review of the delegate’s refusal of the nominee Sean Mitchell’s Subclass 457 visa application (Tribunal Case No. 1836009). The representative also attended the hearing. The Tribunal found both Mr Harman and Mr Mitchell to be credible witnesses.
By way of brief background, the Tribunal notes that Mr Mitchell has worked with the Company since 4 September 2017. Initially, he commenced employment with the Company in the role of Trainee Recruitment Consultant. Within 3 months, Mr Mitchell was promoted to the position of Recruitment Consultant effective 1 December 2017 and then, on 20 January 2021, he became a Senior Recruitment Consultant. More recently, effective 1 August 2021, Mr Mitchell was promoted to Managing Consultant. As noted by Ms Meah in her letter referred to above at para [6] and confirmed in oral evidence by Mr Harman, Mr Mitchell specialises in recruitment in the Software Engineering space. In particular, he provides advice and guidance to Java Developers helping them secure new positions within the market. His key clients include Accenture, Macquarie Bank, Health Direct, ARQ Group, Power Ledger and KPMG.
After the hearing, the representative provided a signed position description for the role of Managing Consultant with the Company together with a submission addressing how the duties of Mr Mitchell’s position continue to align with the nominated occupation of Recruitment Consultant ANZSCO 223112.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination. The Tribunal acknowledges that it has significantly more information than that which was available to the delegate when considering the nomination lodged on 16 January 2018 by the Company’s former representative.
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 sponsor and meets all of the requirements in r.2.72 of the Regulations: s.140GB(2) of the Act. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73 of the Regulations.
The Tribunal has had regard to the material in the Department’s file and is satisfied that: the nomination was made using the approved form and was accompanied by the correct fee; the Company nominated an occupation under s.140GB(1)(b) of the Act and it identified, in the nomination, an applicant for a Subclass 457 visa as the person who will work in the occupation, Sean Mitchell; the Company identified the location where the nominee would carry out the occupation (namely, Chifley Tower at 2 Chifley Square, Sydney) and, it included the name and 6 digit ANZSCO of the nominated occupation, that is, Recruitment Consultant ANZSCO 223112. The Company’s nomination also contains the required certifications.
Given the above, the Tribunal finds that the requirements of r.2.72(3) of the Regulations are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister.
At the time the Company lodged its nomination application on 16 January 2018, it was an approved standard business sponsor. It was most recently approved as a standard business sponsor on 3 February 2021 and its current sponsorship approval is valid for 5 years expiring 3 February 2026.
Accordingly, the Tribunal is satisfied that the Company is a standard business sponsor and, for this reason, the requirement in r.2.72(4) of the Regulations is met.
Identification of the nominee
Regulation 2.72(5) requires the applicant to identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
As noted above, the Company has identified in its nomination Sean Mitchell, who is an applicant for the visa, to work in the nominated occupation. Accordingly, the requirements of r.2.72(5) of the Regulations are met.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
Since the nominee, Sean Mitchell, was not the holder of a Subclass 457 visa at the time of lodgement of the nomination, the requirements of r.2.72(6), r.2.72(7), r.2.72(7A) and r.2.72(10)(g) of the Regulations do not apply in this case.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination:
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·if there is no such code, and the applicant is a standard business sponsor, the name of the occupation and the corresponding 6-digit code as specified in the relevant instrument; or if the applicant is a party to a work agreement, the name of the occupation and the corresponding 6-digit code (if any) as specified in the work agreement; and,
·the location(s) at which the nominated occupation is to be carried out.
The Tribunal is satisfied that the Company has provided the required information, including the name of the occupation and the corresponding 6-digit ANZSCO code. The Company indicated the occupation is Recruitment Consultant ANZSCO 223112 and the location at which the occupation is to be carried out. At the time of lodgement of the Company’s nomination, it indicated that the nominee would work at its office in 2 Chifley Square, Sydney. Subsequently, the Company has relocated its offices to One International Towers, 100 Barangaroo Avenue, Sydney. Having reviewed Departmental records, the Tribunal is satisfied that the Company has advised the Department of its change of address.
For these reasons, the requirements of r.2.72(8A) of the Regulations are met.
Certification relating to conduct under s.245AR(1)
Regulation 2.72(8B) requires that the applicant has, as part of the nomination, certified in writing whether or not they have engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act. This provision prohibits asking for or receiving a benefit in return for the occurrence of a sponsorship-related event.
Having reviewed the nomination lodged with the Department, the Tribunal is satisfied that the Company has made the requisite certification. Accordingly, the requirement in r.2.72(8B) of the Regulations is met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or, it is reasonable to disregard such information. For these purposes, the terms ‘adverse information’ and ‘associated with’ have the meaning given in r.1.13A and r.1.13B of the Regulations.
There is no evidence before the Tribunal to indicate that there is any ‘adverse information’ known to Immigration, either about the Company or a person ‘associated with’ the Company. On the contrary, following approval of the Company’s most recent standard business sponsorship approval on 3 February 2021, the Department has approved 3 nominations for Subclass 482 visas.
For these reasons, the Tribunal is satisfied that the requirements of r.2.72(9) of the Regulations are met.
Specified occupation
Regulation 2.72(10)(aa) requires that the nominated occupation and its 6- digit code correspond to an occupation and 6-digit code specified in the applicable instrument, IMMI 17/060 of 28 June 2017. In certain circumstances, this instrument may also require the nomination of an occupation to be supported in writing by a specified organisation before the nomination can be approved: r.2.72(10)(b) of the Regulations.
The Tribunal is satisfied the nominated occupation of Recruitment Consultant ANZSCO 223112 is included in IMMI 17/060. The instrument does not require that the nomination be supported in writing by a specified organisation.
However, relevant to the circumstances of this case, cl.7 of IMMI 17/060 provides that the occupation of Recruitment Consultant ANZSCO 223112 is subject to 3 separate inapplicability conditions (also known as caveats). In this regard, for purposes of r.2.72(10)(aa) of the Regulations, IMMI 17/060 provides that the nominated occupation of Recruitment Consultant is inapplicable for Subclass 457 visa purposes if the position:
1)has a nominated base salary of less than AUD65,000: item 2 of cl.8 of IMMI 17/060; or,
2)is in a business that has an annual turnover of less than AUD1,000,000: item 19 of cl.8 of IMMI 17/060; or,
3)is in a business that has fewer than 5 employees: item 21 of cl.8 of IMMI 17/060.
The Tribunal has considered the applicability of each of these 3 separate caveats as they apply to the circumstances of this case.
First, the Company provided the Tribunal with a copy of the signed contract of employment dated 6 September 2017 made between the Company and the nominee Sean Mitchell (the Contract of Employment) together with the signed letter dated 13 December 2017 confirming that Mr Mitchell’s basic salary had increased to $65,000 p.a. As noted above in para [9], the nominee Sean Mitchell has been promoted a number of times since commencing employment with the Company as a Trainee Recruitment Consultant. The Tribunal has been provided with a copy of the signed letter dated 29 July 2021 confirming his most recent promotion, effective 1 August 2021, to the position of Managing Consultant which notes that Mr Mitchell’s basic salary has increased to $85,000 p.a. (the Variation Letter). In passing, the Tribunal notes that cl.5.2 of the Contract of Employment provides for the discretionary payment of bonuses. Evidence of Mr Mitchell’s receipt of significant bonuses in addition to his base salary is discussed below.
Having regard to evidence provided, the Tribunal is satisfied that the inapplicability condition in relation to base salary of less than $65,000 per annum as set out in item 2 of cl.8 of IMMI 17/060 does not apply in this case.
Second, the Company has provided the Tribunal with copies of its Tax Returns for years ended 31 December 2019 and 31 December 2020 as lodged with the Australian Taxation Office (ATO) by Titan Partners Pty Ltd, a company registered with the Tax Practitioners Board. These Tax Returns confirm that the Company reported income in excess of $41 million in each of these years. In passing, the Tribunal notes Mr Harman’s evidence that the Company adopts the calendar year for its reporting and compliance purposes consistent with London-based Opus Group’s global practice. The Company’s accountants, Deloitte Touche Tohmatsu, confirm in a letter from Manager Leroy Sing dated 28 October 2021 that turnover in the 6 months from 1 January to 30 June 2021 was $25,272,404.
Having regard to evidence provided, the Tribunal is satisfied that the inapplicability condition in relation to annual turnover of less than $1 million as set out in item 19 of cl.8 of IMMI 17/060 does not apply in this case.
Third, the Company has provided evidence that it engages 77 employees in Australia. It has provided the names, position titles, employment status (full-time, part-time, casual), salary and work rights status (Australian citizen, permanent resident or temporary visa holder) of all employees. The Company’s Tax Returns referred to above confirm salary and wage expenses consistent with the payroll details.
Based on evidence provided, the Tribunal is satisfied that the inapplicability condition in relation to engagement of less than 5 employees as set out in item 21 of cl.8 of IMMI 17/060 does not apply in this case.
On the basis that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the relevant instrument, and the fact that none of the 3 caveats impacting that occupation as set out in IMMI 17/060 apply in the circumstances of this case, the requirements of r.2.72(10)(aa) of the Regulations are met. The requirements of r.2.72(10)(b) of the Regulations do not apply in this case.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location. For nomination applications made after 1 December 2015, this expressly includes, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A) of the Regulations. The word ‘earnings’ is defined in r.2.57A of the Regulations and includes: the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and, the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in IMMI 09/113: r.2.72(10AA) of the Regulations. These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in IMMI 13/028, which is currently set at $250,000: r.2.72(10AB) of the Regulations.
The Contract of Employment as amended by the Variation Letter provides that Mr Mitchell’s basic salary, effective 1 August 2021, is $85,000 per annum. As the nominee’s proposed annual rate of earnings is less than the specified threshold of $250,000, the Company is required to meet r.2.72(10)(c) of the Regulations.
The Company has advised that it employs one permanent resident, Kieran Campbell, who performs equivalent work of Managing Consultant at its Barangaroo office. Mr Campbell’s basic salary is also $85,000 per annum. In a signed letter of 4 August 2021, Ms Meah has advised that the Company offers all employees (in Australia) a standard employment contract and she provided a copy of the Company’s template contract. The Contract of Employment is an example of the Company’s template contract with personal details inserted where appropriate. In addition, the Tribunal has reviewed data from PayScale which indicates the current salary range for the position of Senior Recruitment Consultant is $72,424 p.a.[1]
[1] type="1">
On the basis of this information, the Tribunal is satisfied that the terms and conditions of employment, including the earnings for the nominee will be no less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident performing equivalent work at the same location. For these reasons, the requirements of r.2.72(10)(c) of the Regulations are met.
Base rate of pay
Regulation 2.72(10)(cc) requires that the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the Temporary Skilled Migration Income Threshold (TSMIT) specified in the relevant instrument. The TSMIT is specified in IMMI 13/028 to be $53,900 per annum. However, this requirement may be disregarded if the base rate of pay will not be greater than the TSMIT, the annual earnings are equal to or greater than the TSMIT and the Minister considers it reasonable to do so: r.2.72(10A) of the Regulations.
The term ‘base rate of pay’ means the rate of pay payable to an employee for his/her ordinary hours of work, but does not include incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts: r.2.57 of the Regulations. The meaning of ‘earnings’ is provided in r.2.57A of the Regulations and is summarised above.
The requirement in r.2.72(10)(cc) of the Regulations does not apply if the annual earnings of the nominee are equal to or greater than those specified in the instrument IMMI 13/028, that is, $250,000: r.2.72(10AB) of the Regulations. As noted above, the Contract of Employment as amended by the Variation Letter specifies Mr Mitchell’s basic annual salary will be $85,000 per annum. Regulation 2.72(10AB) is therefore not applicable in this case.
For the reasons outlined above at para [45], the Tribunal is satisfied on the evidence before it that the annual earnings and base rate of pay for an Australian equivalent employee is greater than the current TSMIT of $53,900 per annum. For these reasons, the requirements of r.2.72(10)(cc) of the Regulations are met.
Certification under r.2.72(10)(e)
As part of the nomination, the applicant must certify various matters in writing: r.2.72(10)(e) of the Regulations. These include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO or specified in the instrument IMMI 18/004;
·if the applicant is lawfully operating a business outside, but not in, Australia, the nominated occupation is in the business of the standard business sponsor or is specified in the relevant instrument;
·if the applicant lawfully operates a business in Australia, the nominated occupation is with a business, or an associated entity, of the applicant or else, is an occupation specified in the relevant instrument; and,
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO or, if there is no ANZSCO code, in IMMI 18/004.
The Tribunal is satisfied on the basis of the relevant certifications in the nomination application that the requirements of r.2.72(10)(e) of the Regulations are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. The Tribunal is required to determine not only whether or not the position in question is genuine in the sense that the position exists, but also whether the position really is what it purports to be. In respect of the latter, the Courts have confirmed that the determination necessarily requires a qualitative analysis of the position by the decision maker (in this case, the Tribunal) and a comparison with the occupation which has been nominated by the sponsor: see, for example, Cargo First Pty Ltd v MIBP [2016] FCA 30, Flick J at [34] and Mora v MIBP [2018] FCA 1819, Collier J at [40].
As noted above, the delegate decided not to approve the nomination on the basis that the Company did not meet r.2.72(10)(f) of the Regulations because, based on the limited information available to the Department, they were not satisfied that the position associated with the nominated occupation is genuine.
The ANZSCO Unit Group 2231 Human Resource Professionals identifies 3 occupations within the unit group which provide duties as follows:
1)Human Resource Adviser ANZSCO 223111 - provide staffing and personnel administration services in support of an organisation’s human resource policies and programs;
2)Recruitment Consultant ANZSCO 223112 - interview applicants to determine their job requirements and suitability for particular jobs and assist employers to find suitable staff; and,
3)Workplace Relations Adviser ANZSCO 223113 - assist in resolving disputes by advising on workplace relations policies and problems, and representing industrial, commercial, union, employer or other parties in negotiation on rates of pay and conditions of employment.
The responsibilities for the nominated position of Managing Consultant with the Company as set out in the signed position description provided to the Tribunal are:
Build your market
·Act as a true expert in your vertical market encompassing technology, trends, market news, projects, strategy and companies recruitment needs.
·Be visible and known within your vertical market sector at events or roundtables
·Create and maintain business records to build a profile and footprint within your market and set the example for your team
·Build and engage with a solid lead base of relevant prospective clients and candidates
·Lead generate to create a pipeline of new business opportunities within your market. Identify and qualify these opportunities
·Grow new business sales revenue in your vertical market
Recruitment Activities
·Understand both the candidate and client end to end recruitment lifecycle
·Build relationships with clients within your market through telephone sales, networking and meetings to generate profitable business partnerships
·Mainly a phone based role contacting clients to identify recruitment needs and give consultative advice and deliver solutions according to their requirements
·Using a variety of sources from in-house database, social media, advertising, headhunting and search engines, identify candidates with your core market skills
·Conduct detailed candidate telephone interviews to match their skillsets with the clients’ requirements
·Manage the application and interview process using best practice interview tools and templates.
·Manage and negotiate the offer and placement process ensuring a high level of service is given to both the client and candidate.
·Meet performance standards that relate to KPI activities
·Coaching other less experienced consultants through all of the above activities when required
Team Management
·Working within a fast-paced and very successful team, you will need to be comfortable with leading from the front and demonstrating leadership potential
·Team management of a team of approximately 5 consultants
·Opening and managing large recruitment accounts
·To produce and deliver against an agreed account plan and budget
·Produce and monitor accurate and clear forecasting
·To be a leader of your team, offering direction and support, ensuring the wider team and business have the correct level of skills to grow the accounts
·Training; both desk and classroom based for trainee through to manager level consultants.
In assessing whether the position is genuinely that of the nominated occupation of Recruitment Consultant ANZSCO 223112, the Tribunal is guided by the description of that occupation in the ANZSCO, including the skill level and tasks involved. The Tribunal acknowledges that some of the duties set out in the ANZSCO relate specifically to the other 2 occupations in the Unit Group 2231 referred to above at para [55], namely, Human Resource Adviser and Workplace Relations Adviser.
As noted above, Ms Meah and Mr Harman have advised that the Company offers all employees a standard employment contract, a copy of which was provided to the Tribunal. When staff are promoted to a new position, or their base salary is increased, a short one page letter confirms this information. The Contract of Employment is dated 6 September 2017. Mr Mitchell has been promoted on 4 occasions from his initial position of Trainee Recruitment Consultant. He was promoted to Recruitment Consultant effective 1 December 2017 at a base salary of $65,000 p.a. Subsequently, he was promoted to Senior Recruitment Consultant effective 20 January 2021 and, most recently, he was promoted to Managing Consultant effective 1 August 2021 at a base salary of $85,000 p.a. In addition to his regular duties as a Senior Recruitment Consultant, the nominee Mr Mitchell is also now required to lead, train and develop a team of approximately 5 trainees/junior consultants.
The representative has provided a Table setting out the key duties of Mr Mitchell as set out in the signed position description provided to the Tribunal and how they correspond to the tasks of the occupation as set out in the ANZSCO.
Table: Relevant ANZSCO tasks and the nominee’s position description

ANZSCO Tasks

Position Description

Arranging for advertising of job vacancies, interviewing and testing of applicants, and selection of staff

Conduct detailed candidate telephone interviews to match their skill sets with the client’s requirements

Understand both the candidate and client end to end recruitment life-cycle

Using a variety of sources from in-house database, social media, advertising, headhunting and search engines, identify candidates with your core market skills

Build and engage with a solid lead base of the relevant prospective clients and candidates

Grow new business sales revenue

Receiving and recording job vacancy information from employers such as details about job description, wages and conditions of employment

Build relationships with clients within your market through telephone sales, networking and meetings to generate profitable business partnerships

Using a variety of sources from in-house database, social media, advertising, headhunting and search engines, identify candidates with your core market skills

Contacting clients to identify recruitment needs and give consultative advice and deliver solutions according to their requirements

Manage the application and interview process using Opus best practice interview tools and templates

Manage and negotiate the offer and placement process ensuring a high level of service is given to both the client and candidate

Building being a true expert and being visible and known in the market sector

Providing information on current job vacancies in the organisation to employers and job seekers

Build and engage with a solid lead base of the relevant prospective clients and candidates

Using a variety of sources from in-house database, social media, advertising, headhunting and search engines, identify candidates with your core market skills

Manage the application and interview process using Opus’ best practice interview tools and templates

During the course of the hearing, the Tribunal discussed with Mr Harman the nature of the Company’s business and Mr Mitchell’s role with the Company. It also took independent oral evidence from Mr Mitchell. Mr Harman largely echoed evidence provided by Ms Meah in her letter of 26 October 2021 regarding the genuineness of the position. Evidence provided confirms that Mr Mitchell is integral to of the Company’s Digital & Development Team. He specialises within the Software Engineering space in IT and, in 2020 and 2021, he found 54 candidates (52 of whom were Australian citizens or permanent residents) full-time employment in the Software Engineering (Java) space. Ms Meah and Mr Harman added that Mr Mitchell provides advice and guidance to hundreds of Java Developers that helps them secure new positions. Since the onset of the COVID-19 pandemic, he has helped 50 candidates who have been made redundant because of the coronavirus find new full-time jobs.
Ms Meah observes that Mr Mitchell has been critical to assisting some of the biggest firms in Australia find talent during the biggest pandemic the world has seen. With no talent coming into Australia, firms who would never usually use recruiters have had to reach out directly to Mr Mitchell because he specialises in recruiting talent in the Software Engineering space to urgently find talent for them for critical projects such as integrating the MyGov app with Medicare. This required Mr Mitchell to find Australian citizens who were Java Developers to build this app quickly to support the COVID efforts.
In addition, Ms Meah states that Mr Mitchell has built strong relationships with key Company clients including Accenture, Macquarie Bank, Health Direct, ADR Group, Power Ledger and KPMG. His relationship with these clients is the foundation that the Company’s Digital & Development Team has built on, and is integral to the Company’s continued growth over the coming years. By way of summary, Ms Meah and Mr Harman confirm that Mr Mitchell’s responsibilities involve distributing roles throughout the permanent team, relationship management, job qualification and managing the interview process all the way to deal stage.
As evidence of the Company’s genuine appreciation of the nominee Mr Mitchell’s outstanding efforts, the Company has consistently rewarded him with bonuses in recognition of his efforts. Mr Mitchell has provided the Tribunal with Notices of Assessment issued by the ATO for years ended 30 June 2018, 2019, 2020 and 2021. His most recent Notice of Assessment confirms he was paid $140,251 in the year ended 30 June 2021. This was at a time when his base rate of pay as a Recruitment Consultant and Senior Recruitment Consultant was $65,000 per annum, consistent with the Company’s letters of 13 December 2017 and 27 May 2021 respectively.
The Tribunal acknowledges that Mr Mitchell’s recent promotion to Managing Consultant has required him to undertake some responsibility for management of up to 5 junior colleagues. However, based on evidence provided it is clear that he predominantly continues to undertake the role of Recruitment Consultant as outlined above.
Having carefully considered all the evidence before it, the Tribunal is satisfied that the position is genuine and is what it purports to be, namely, a position in the occupation of Recruitment Consultant as described in ANZSCO.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee as an employee under a written contract of employment and give a copy of that to the Minister, unless the nominated occupation is specified in the relevant instrument. There is no current instrument relevant for this provision.
The nomination application lodged by the Company is to facilitate the nominee Sean Mitchell’s continued employment by the Company in the role of Recruitment Consultant. The Contract of Employment, as amended by the Variation Letter, confirms that the nominee Mr Mitchell will be engaged as an employee of the Company in the role of Managing Consultant. The Tribunal will provide the Department with a copy of the Variation Letter.
For these reasons, the requirements of r.2.72(10)(h) of the Regulations are met.
Work agreements
Separate criteria apply where the applicant is a party to a work agreement (other than a Minister): r.2.72(11) and r. 2.72(12) of the Regulations.
As the Company is not a party to a work agreement, the requirements of r.2.72(11) and r.2.72(12) are not applicable.
Labour market testing
Section 140GBA of the Act requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or, in the alternative, the skill and occupational exemptions in s.140GBB – s.140GBC of the Act apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
For these purposes, labour market testing means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the position.
In this case, the nominated occupation is Recruitment Consultant ANZSCO 223112. This occupation is classified as Skill Level 1 in the ANZSCO. All occupations which are classified in ANZSCO as Skill Level 1 and 2 are specified for the purposes of the occupational exemptions in s.140GBC(4)(a) of the Act: IMMI 13/137. In the circumstances, the skill level and occupation exemptions to the labour market testing requirements in s.140GBC(3) of the Act are met and the Company is exempt from having to satisfy the labour market testing requirements in s.140GBA of the Act.
For these reasons, the labour market testing requirements in s.140GBA of the Act are not applicable.
Conclusion
For the collective reasons given above, the Company meets all applicable criteria for approval of its nomination.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Katie Malyon

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.
oOOo

[2021] AATA 4877

10 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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