Pascoevale Venture Australia Pty Ltd (Migration)

Pascoevale Venture Australia Pty Ltd (Migration) [2020] AATA 3112 (21 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Pascoevale Venture Australia Pty Ltd
CASE NUMBER:  1815034
DIBP REFERENCE(S):  BCC2016/1866149
MEMBER:Warren Stooke AM
DATE:21 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 21 May 2020 at 6:51pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Marketing Specialist – tasks of nominated position – telecom start-up – national channel for Vodafone – business to business marketing – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 Immigration on 18 May 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 27 May 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h) of the Regulations because the delegate concluded that the nominated position for the proposed nominee did not match that of the nominated ANZSCO Code: 225113.
The applicant appeared before the Tribunal on 11 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Naveen Reddy Yellal, who is the applicant's business partner and General Manager of the business and Manideep Balmuri, the nominee.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
The applicant confirmed to the Tribunal that he had received a copy of the Department’s decision and that a copy of the decision was provided to the Tribunal with the application.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The applicant Director, Mr Satish Mullapudi, provided evidence to the Tribunal on behalf of Pascoevale Venture Australia Pty Ltd. He stated that he was one of two shareholders and that Mr Naveen Reddy Yellal is the other owner and General Manager of the business’s teams.
The applicant provided evidence that the business commenced as a telecom start-up in 2012 and has developed since then as a national channel for Vodafone, with a focus on business to business marketing.
The applicant stated that the Vodafone sales and marketing business products, included: phone supplies; IP intranet; IT data and fixed lines.
The applicant stated that the business has in excess of 5,000 customers nationally and a workforce that varies between 20 and 37 employees engaged in procuring and servicing customers and renewals.
The applicant described the nominated position as being responsible for:
a.Design and execution of marketing campaigns for specific territories, which are both state and locally based;
b.Co-ordination of plans to design and the customisation of those plans to meet the market;
c.The market consists of 60 per cent small to medium businesses with a segment range from $1,000 to $10,000;
d.Customisation of marketing information tools from Vodafone;
e.Online courses through Vodafone.
The applicant stated that the nominee is a permanent employee and is paid a salary of $65,000 per annum gross, which equates to $5,416.67 per month and that superannuation contributions are made to Australian Super, which is the default fund. As such, the position requires 38 hours per week and is located in Perth.
The applicant provided evidence that the position was advertised and required qualifications that assimilated with the technology and had to be at the Master’s degree level, with a focus to business administration. [Tribunal File: Folio 80]
Evidence – Manideep Balmuri (Nominee)
The witness provided evidence that he had graduated from Federation University with a Master of Business Administration and was issued with an academic transcript on 10 July 2015 [Tribunal File: Folio 21]. This transcript included the following subjects related to the nominated occupation of Marketing Specialist/Sales Promotion Officer:
a.Change agent strategies;
b.Competitive analysis;
c.Marketing in the International Environment;
d.Marketing; and
e.Operations Management.
The witness stated that he undertakes the following duties in relation to the marketing and sale of Vodafone products:
a.Maintain up to date product knowledge;
b.Report to the Marketing Manager;
c.Develop and manage the campaigns for different marketing plans and how to approach the market;
d.Manage the after sale market delivery and expectations;
e.Perform point of sale contact for the sales room;
f.Qualify the leads from the data;
g.Maintain up to date information (products and marketing status);
h.Engage with the call sales team activities;
i.Maintain activity targets in the market.
Evidence – Naveen Reddy
Mr Naveen Reddy provided evidence that he is also a shareholder and the General Manager of the business.
The witness described the nominated position, which he stated was a base marketing specialist engaged in the design of the marketing plan and the design of product requirements suitable for the business’s customers. He stated that the position focusses upon market acquisition through geography and locality with specific design options for customers and present products that are developed against customer needs.
In addition, he stated that the position presents solutions from a multiple skill set.
The witness confirmed to the Tribunal that employees were provided with a Fair Work Statement as required under the Fair Work Act 2009 and that the applicable awards covering the roles in the organisation are the Telecommunications Award and the Commercial Sales Award.
The witness asserted that the skill set required for the position is not common in the industry and that it was challenging to fill the position with a suitable applicant.
Submitted Material
The applicant provided the Tribunal with confirmation of an ASIC registration valid to 31 August 2020; an ABN 96 160 161 400 for Pascoevale Venture Australia Pty Ltd and that the business became active on 31 August 2012. [Tribunal File: Folio 83-87]
The applicant submitted an organisational chart that identified the nominee as a Marketing Specialist as part of a Marketing team comprising a Marketing Manager and with three Specialist Marketers reporting to this position. [Tribunal File: Folio 15]
The applicant submitted accounts for the financial years 2017, 2018 and 2019 that included the following financial status for each of the financial periods:
a.2017 – Gross Profit of $433,396 and after tax profit of $36,237;
b.2018 - Gross profit of $574,520 and after tax profit of $36,787; and
c.2019 – Gross profit of $$741,878 and after tax profit of $43,169.
The applicant provided a copy of the Seek.com job advertisement for the position of Marketing Specialist for Vodafone in the Perth Office dated 27 April 2016 and a position description. [Tribunal File: Folio 80 and 101]
The applicant provided a copy of the employment contract for the nominee that was signed on 18 May 2016 by the owner and nominee and included a contract term exceeding 2 years, subject to the grant of a visa. [Tribunal File: Folio 102-109]
The applicant provided a copy of the Regional Sponsored Migration Scheme – Regional Certifying Body Advice, stamped and dated by the Government of Western Australia on 24 May 2016. [Tribunal File: Folio 75]
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
On 27 May 2016 the Department acknowledged the application that was made on the approved form 1395, or 1395 (Internet) for post 23 March 2013 applications, that required the accompanied fee prescribed in r.5.37;
The Regional Certified documentation submitted by the applicant identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. [Tribunal File: Folio 75]
Further, the Tribunal is satisfied that the applicant has provided written certification within the application stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1) and that the nominee will be employed under the nominator’s direct control based upon the request from the Department to complete such documentation.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. In this regard, the applicant
The applicant provided documentation to the Tribunal that identified the business has an ABN 96 160 161 400 for Pascoevale Venture Australia Pty Ltd and that the business became active on 31 August 2012, which directly operates the applicant’s business. [Tribunal File: Folio 83-87]
The applicant provided the documentation relating to the business, with the registered name Pascoevale Venture Australia Pty Ltd.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal finds that r.5.19(4)(c) is not relevant to the current nomination.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant provided the Tribunal with a copy of the contract of employment pertaining to the nominee, which states that the employment is for a two year period commencing from the grant of the visa by the Department of Home Affairs and is extendable by mutual agreement. [Tribunal File: Folio 102-109]
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal finds that there is no evidence before the Tribunal that the terms and conditions applicable to the position will be less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no current evidence before the Tribunal that the applicant has not complied with the immigration laws of Australia.
Accordingly, the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
The applicant has provided evidence of the contract of employment and salary that confirm that the applicant is paying an appropriate wage for the classification.
In addition, the Tribunal is satisfied that the applicant has paid monies into an approved superannuation fund, Australian Super.
Accordingly, the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied that the Regional Certified documentation submitted by the applicant identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. [Tribunal File: Folio 75]
The applicant submitted that the ANZSCO Code: 225113 Marketing Specialist is the appropriate occupation that is being nominated by the applicant, which was confirmed by the evidence provided at hearing by the applicant and the witnesses, together with the Seek.com advertisement, submitted in evidence. [Tribunal File: Folio 80 and 101]
Accordingly, the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Warren Stooke AM
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2020] AATA 3112

21 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction