SUNRISE INDUSTRIES PTY LTD (Migration)

[2023] AATA 1870

SUNRISE INDUSTRIES PTY LTD (Migration) [2023] AATA 1870 (22 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SUNRISE INDUSTRIES PTY LTD

REPRESENTATIVE:  Mr Nishan Singh (MARN: 0955862)

CASE NUMBER:  1925473

HOME AFFAIRS REFERENCE(S):          BCC2018/424692

MEMBER:Penelope Hunter

DATE:22 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 22 June 2023 at 1:30pm

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – position of Marketing Specialist – financial capacity to employ the nominee for at least two years – genuine need for the employment – cancellation of a previous business name – previous employment of the nominee – terms and conditions of employment no less favourable – late payments for training obligations – marketing strategies to grow sales – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 140, 245, 359, 362
Migration Regulations 1994, Schedule 2, cl 457.223; rr 1.13, 1.20, 5.19, 5.37

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 August 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 25 January 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination of a Marketing Specialist, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(3)(i) of the Regulations because the delegate was not satisfied that there was a genuine need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominator’s direct control.

5. Mr Mander Dass, Managing Director, appeared on behalf of the applicant before the Tribunal on 7 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Lokesh Bawa, the assistant and son of the Managing Director. The nominee, Ms Sumandeep Kaur, also provided evidence to the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicant was represented in relation to the review, and their representative also participated in the Tribunal hearing.

7. 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

8. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Non-disclosure certificates

9. The Department issued in this matter three non-disclosure certificates pursuant to s 376(1) of the Migration Act 1958 (Cth) (the Act) in relation to certain electronic documents contained in the file produced to the Tribunal, each dated 21 August 2021. Copies of the certificates had been supplied to the applicant pursuant to a request for access to written material in accordance with s 362A of the Act. A further copy was provided to the applicant and their representative at the hearing.

10. The Tribunal discussed the certificates with the applicant and their representative at the hearing and invited comment on their validity. The validity of the certificates was not disputed by the applicant or their representative at the hearing.  The Tribunal found the certificates to be valid as they clearly identified the relevant records, provided a public interest reason for the non-disclosure and was correctly executed.

11. The Tribunal also exercised its discretion pursuant to s 376(b) of the Act to partially disclose to the applicant certain material covered by the certificates. Firstly, the applicant was advised that the certificate identifying documents ADD2018/4674745, CLD2019/30304187 and CLD2019/30311703J, which have been classified as confidential by the Department as they would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods, went to investigations of the applicant proposed by the Department. The applicant was further advised that those investigations did not take place, the documents are therefore purely administrative in nature and the Tribunal proposed to place no reliance on the material for the purposes of the review.

12. The further two certificates related to tip-offs provided to the Department regarding the applicant and Ms Kaur and any adverse material was further put to the applicant for comment at the hearing pursuant to the provisions of s 359AA of the Act, the particulars of which are discussed below.

    The application must be compliant: reg 5.19(3)(a)

13. Regulation 5.19(3)(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 relevant person and occupation, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.

14. The Tribunal is satisfied on the basis of the material in the Department file that the application was made on the relevant form and that it was accompanied by the prescribed fee in reg 5.37.

15. The application form included a written certification by the nominator that they have not engaged in any conduct in contravention of s 245AR(1) which relates to receiving a benefit in return for sponsorship.

16. Pursuant to the provisions of s 359AA of the Act the Tribunal invited the applicant to comment on information arising from tip-offs made to the Department and referred to them in relation to the nomination application. The substance of the information was that the nominee had paid the applicant either $60,000 or $50,000 to obtain permanent residency. Her file was fake and that she sometimes worked and sometimes does not. The applicant was advised that the information was relevant as it indicated that the applicant had been paid to sponsor the nominee for the visa and that the position may not be genuine. It was further identified to the applicant if the Tribunal relied on the information it may find that the requirements of reg 5.19(3) are not met and consequently that the nomination application would not be approved.

17. Mr Bawa and Mr Dass elected to respond immediately to the information and both denied that they had received any payment from Ms Kaur to sponsor her for the visa. Mr Bawa told the Tribunal that he believed that evidence has been presented to demonstrate that Ms Kaur had been employed by the applicant since 2013 and she continued to be a valued member of their operations. The Tribunal was further told that the applicant was a successful company as was demonstrated by its financial records; it did not require money from Ms Kaur. Further such conduct may adversely affect their need to sponsor further staff in the future. The risk involved with such conduct was not worth it to the applicant and it rejected all the allegations.

18. The Tribunal notes the allegations received by the Department that the applicant’s position may not be genuine and that the applicant was being paid to sponsor the nominee for permanent residency. These allegations are discussed in more detail below and refuted by the applicant and Ms Kaur. The Tribunal is not satisfied that, in the absence of any corroborative evidence any weight can be attributed to the anonymous allegations.

19. For the purposes of satisfaction of reg 5.19(3)(a) the Tribunal asked Mr Bawa and Ms Kaur about the tasks that she performs. Mr Bawa told the Tribunal that the products that they sold were quite technical and that Ms Kaur as a Marketing Specialist assisted the company to communicate with its customers about stock, provided advice to assist the company to plan and accommodate fluctuations in sales, and to plan and promote for new products in the market. Her role was to assist in the design and delivery of marketing programs, to provide advice to management of the product mix, and relevantly she was currently engaged with the development of a new website for the company, a project that had been ongoing for over 12 months. Ms Kaur gave evidence that her role involved developing sales and promotional strategies, which included social media marketing and the creation of blogs and reviews for certain products. She claimed that she would look for new products, create brochures and other advertising material, maintain the product catalogue and suggest new products to the company management through marketing leads and analysing marketing trends. The Tribunal has also had regard to the information before it, including the evidence of Ms Kaur’s employment since 2013, her employment contract dated 28 December 2017, the organisation chart, position description, nature of the applicant’s business (trailer parts sales), employer reference letter, and representatives submissions.

20. The application identified Ms Kaur, who at the time of nomination held a Subclass 457 visa granted on the basis of satisfying cl 457.223(4). Further, the application identified the occupation of Marketing Specialist, ANZSCO Code 225113, in relation to the position. The Tribunal is satisfied that the occupation identified in relation to the position is listed in the ANZSCO and has the same occupation unit group code as the occupation carried out by the nominee.

21. Given the above findings, the requirement in reg 5.19(3)(a) is met.

    Status of the nominator: reg 5.19(3)(b)

22. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

23. The applicant was the sponsoring entity for Ms Kaur’s previous Subclass 457 visa in a nomination made under s 140GB of the Act. It did not seek to meet certain criteria relating to the operation of a business overseas. The applicant’s business is operated within Australia.

24. The applicant continues to trade with the same ABN and ACN. There is substantial evidence that the applicant continues to lawfully and actively operate a business in Australia, including an ASIC current and historical company extract, company tax returns for the years ending June 2020 to June 2022, financial statements for the years ending 30 June 2021 to 30 June 2022, company advertising material, Business Activity Statements (BAS) from July 2019 to March 2023 and advertising, website and promotional material.

25. Regarding the cancellation of the business name Austrailer Parts, noted by the delegate in their decision record, Mr Bawa told the Tribunal that there had been a falling out with the previous Company Accountant. Consequently the Accountant’s services were discontinued but the Accountant remained the address for correspondence in relation to the business name renewal. The applicant was not notified of the need to renew, and the former Accountant did not forward this information on. Once this was brought to his attention, Mr Dass organised the renewal and this business name continues to be used by the company in relation to its eBay sales. A more recent search of the records of ASIC confirms that this business name is currently registered.

26. The applicant has been operating since 2013, and is part of the Sunrise Industries Group of companies. It operates the NSW business of supplying trailer parts and has eight employees, with Mr Dass as Director. Mr Dass is also a Director of the related companies in Melbourne and Brisbane. He is situated in Melbourne and the day to day operations of the applicant are managed by Mr Paramjeet Singh, who is also the husband of the nominee. In total there are seven employees of the applicant including Mr Singh and Ms Kaur.

27. Given the above, the requirement in reg 5.19(3)(b) is met.

    Previous employment of the nominee: reg 5.19(3)(c)

28. Broadly speaking, to meet the requirement in reg 5.19(3)(c), either:

    ·     the nominee must have been employed full-time in Australia in the position for which he or she holds a Subclass 457 visa for at least two of the three years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least two years in the three years immediately before the application.

29. In this case, reg 5.19(3)(c)(i) is the relevant provision. Departmental records confirm that Ms Kaur was granted a Subclass 457 visa to work as a Marketing Specialist in the nominator’s trailer parts business. The material before the Tribunal relevant to Ms Kaur’s employment includes PAYG summaries, associated tax assessment notices, superannuation records from 2015 to 2021. Also presented are payslips from July 2022 and certificates of recognition from industry organisations. Further, at the hearing Mr Bawa and Ms Kaur gave evidence that Ms Kaur had been working in the nominated position of Marketing Specialist since she was granted her Subclass 457 visa.

30. The Tribunal is satisfied that the nominee has been employed in the position of Marketing Specialist, on a full-time basis in Australia for at least two of the three years immediately preceding the lodgement of the nomination on 25 January 2018.  

31. Given the above findings, the requirement in reg 5.19(3)(c) is met.

    Future employment of the visa holder: reg 5.19(3)(d)

32. Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full-time basis for at least two years on terms that do not expressly preclude the possibility of an extension.

33. The Tribunal requested updated financial information in November 2022, and further material was submitted to the Tribunal in anticipation of the hearing. The Tribunal has received a recent BAS, financial reports for the previous three years, company income tax returns, payroll records and evidence of the payment of wages to Ms Kaur.

34. The financial reports and supporting company tax returns provided to the Tribunal demonstrate that the turnover and profitability of the applicant has increased since the lodgement of the nomination application. The most recent financial statement for the year ending 30 June 2022 records a total trading income of $4,753,671 and gross profit from trading of $1,997,458, and an operating profit after tax of $862,795. The figures presented for the year ending 30 June 2022 are slightly down on the figures for the previous year but the Tribunal remains satisfied that the business continues to trade profitably. Further there are retained profits and cash at bank recorded sufficient to meet any stated liabilities.

35. Staff levels have also risen. The nominee has further been the beneficiary of an increase in salary from $54,000 in 2018 at the date of application to her current level of $80,262.

36. The nominee has been employed in the applicant’s business for a period of approximately 10 years including eight years in the position of Marketing Specialist. In this period the applicant has been paying her nominated salary at an annually reviewed and increased rate plus superannuation.

37. The Tribunal has also had regard to the employment contract dated December 2017; this states that the applicant must provide at least two years full-time employment from the date of the visa grant. The contract further states that it will have a provision for a further extension at the end of the two year period after the visa grant.

38. Having considered the material before it in totality the Tribunal is satisfied that the applicant will provide the nominee with at least two years full-time employment on terms that do not expressly preclude the possibility of an extension.

39. It follows that the requirement in reg 5.19(3)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(3)(e)

40. Regulation 5.19(3)(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.

41. The Tribunal has before it Ms Kaur’s employment contract dated 28 December 2017. This sets out the terms and conditions of Ms Kaur’s employment. As noted above her initial salary as at the time of lodgement of the application was $54,000 plus superannuation, and subject to an annual review. Her current salary is $80,262.

42. The evidence before the Tribunal is that there is no equivalent Australian employee currently working for the applicant. The submission before the Tribunal is that the applicant’s Director had determined the salary of Ms Kaur by having regard to job advertisements for similar positions, industry salary surveys from several providers and Australian Bureau of Statistics data indicating a range of salaries from $55,000 to $109,000 with one outlier at $200,000. The salary of $80,262 is generally above or around the average salary reported in the surveys and consistent with the level of experience of Ms Kaur. The Tribunal also received 15 similar job advertisements for a Marketing Specialist around the suburbs of Sydney; these had a salary range of $54,000 to $122,288. The Tribunal has also had regard to the letter of Mr Dass and the representative’s submissions which set out that in setting Ms Kaur’s salary regard has been had to this information.

43. The Tribunal is satisfied with the method used to calculate Ms Kaur’s proposed earnings, which the Tribunal notes is consistent with market salary data about the salary range for Marketing Specialists in a metropolitan area. Ms Kaur confirmed in her evidence that she was satisfied that in addition to her salary she was receiving all her employment entitlements including required superannuation.  

44. Having considered the evidence provided, the Tribunal is satisfied that the terms and conditions applicable to the position are no less favourable than the terms and conditions that would be provided to an equivalent Australian employee.

45. Accordingly, the requirement in reg 5.19(3)(e) is met.

    Training commitments and obligations: reg 5.19(3)(f)

46. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.

47. At the time of visa application, the most recent approval of the applicant was granted on 29 June 2015 and valid to 29 June 2020. The applicant has sought to satisfy training benchmark A. According to the relevant legislative instrument, this requires the applicant to demonstrate recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to a training fund that operates in the same or a related industry.  Evidence has been provided of contributions in accordance with the following schedule.

Period	Payroll	% figure	Expenditure
29 June 2015 to 28 June 2016	168,428	$3,368.56	10 June 2015, payment to TAFE NSW of $2,020
29 June 2016 to 28 June 2017	210,906	$4,218.12	26 June 2017, payment to TAFE Queensland of $3,750 27 June 2017 payment to TAFE Queensland of $4,715
29 June 2017 to 28 June 2018	282,393	$5,647.86	2 August 2018, payment to TAFE Queensland of $6,500
Total	$13,229.54	$16,985

1. While the expenditure allocated to a training fund, in aggregate exceeded the 2% of the applicant’s payroll for the three years it was an approved standard business sponsor, the expenditure in training was not made in each year of the approval as a sponsor. The payment for the first year was short and the year’s final expenditure a month late. It was conceded at hearing that the payments towards training were not made in each year as required but it was submitted that it was reasonable to disregard the requirements as to training as overall the payments in excess of the requirement had been made, and the delay in the final payment was only for a small period.

2. Having considered the evidence overall, the Tribunal is satisfied that in the circumstances of the case and the overall compliance with the required figure for payments, it is reasonable to disregard the requirements as to training. Accordingly the requirement in reg 5.19(3)(f) is met.

   No adverse information known to Immigration: reg 5.19(3)(g)

3. Regulation 5.19(3)(g) 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 regs 1.13A and 1.13B.

4. Information which the Tribunal considers potentially adverse includes anonymous tip-offs to the Department that the applicant has received money in exchange for sponsoring the nominee.

5. At the hearing Mr Dass, Mr Bawa and Ms Kaur categorically denied the allegations. They were unsure who would have made the allegations and the representative noted that the allegations came several years after Ms Kaur had been employed in the role, and were contrary to the evidence presented that she was undertaking the role of Marketing Specialist.

6. The Tribunal observes that the allegations provided to the Department were from anonymous sources. It has also considered the evidence before it of company activity, and the ongoing payment of wages to Ms Kaur. In addition there were several industry-related certificates of entry and appreciation relating to Ms Kaur’s contribution to the applicant’s business. In the absence of substantive evidence to support the allegations, the Tribunal is unable to give the allegations any weight. Mr Dass as Director has denied the allegations. They were separately refuted by Ms Kaur. While the Department may have proposed to undertake further investigations none have transpired which would add any weight to the allegations. There is no evidence that the applicant has been investigated or has been found to have contravened a law or been the subject of any action on the basis of these allegations.

7. The Tribunal further notes information submitted that the applicant has again been approved as a standard business sponsor on 17 March 2022,[1] valid until 17 March 2027. It is not expected that this would have taken place had the Department found weight to the allegations. In these circumstances the Tribunal to the extent that the anonymous allegations constitute adverse information about the applicant, due to above-mentioned concerns about their provenance, the lack of evidence to support the claims and the positive evidence of the ongoing employment of Ms Kaur the Tribunal finds it is reasonable to disregard the information.

   [1] Sponsorship transaction number EGORAJJ1E7

8. Therefore the Tribunal is satisfied that the requirement in reg 5.19(3)(g) is met.

   Satisfactory compliance with workplace relations laws: reg 5.19(3)(h)

9. Regulation 5.19(3)(h) requires the applicant to have 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.

10. It was submitted that the applicant has not breached any workplace relations laws and there is no evidence before the Tribunal which would suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

11. Accordingly, the requirement in reg 5.19(3)(h) is] met.

    Genuine need to employ nominee: reg 5.19(3)(i)

12. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

13. The delegate found that this requirement was not met and placed considerable reliance on information arising from phone enquiries on 4 December 2018. The delegate records that a call was made to the nominator’s business at which time advice was provided that Ms Kaur had already left work for the day. The delegate was transferred to Mr Dass, and when he was asked to explain Ms Kaur’s role, he is recorded as providing the response that “she is a Manager in the NSW office and deals with sales, incoming calls, liaison with customers and Accountant”.

14. The delegate noted the role of a manager dealing with sales is not consistent with the ANZSCO description of the role of a Marketing Specialist (225113), which is described as someone who identifies marketing opportunities and advises on the development, coordination and implementation for the pricing and promotion of an organisation’s goods and services.

15. Further the delegate had regard to a letter of reference provided by Mr Dass in which he set out that Ms Kaur was complimented by customers on many occasions and that “she handles customers’ queries and complaints with good verbal communication skills”. Also that Ms Kaur was “very good with numbers and efficiently maintained the company’s records”.

16. The Department was also provided with an employer reference letter dated 28 December 2017. This appears to contain tasks consistent with the role and sets out the following position description:

    ·Responsible for designing, creating, and delivering marketing programs to support the growth and expansion of company products.

    ·Creating, updating brochure artwork and coordinate printing for brochures/catalogues as indicated by inventory levels.

    ·Analysing Product Movement using MYOB software and promote slow moving products by advertising them on website and/or making special offers time to time.

    ·Analysing marketing trends, competition, new products to prepare reports.

    ·Meeting managers and service agents of other organizations to learn about their products to meet the customer expectations.

    ·Advising directors on product mix, pricing and sales promotion of the products.

    ·Responsible for predicting current& future demand of the product by analysing the consumer buying pattern and trends of market.

    ·Working closely with Director in setting up marketing targets and budgeting.

    ·Conducting SWOT analysis before and after the launch of product for its successes.

    ·Setting the budget and medium of promotion for new/existing product.

    ·Learning about Market trends by visiting caravan and trailers trade shows and keeping up to date with changes in industry;

    ·Keeping ahead of company’s knowledge bank by reading relevant magazines/Press releases related to caravans/trailers/camper trailers etc

    ·Stay updated with Road Authority’s minimum required standards

17. Before the Department, the organisation chart submitted listed Mr Singh as a Warehouse Manager, and included three part-time warehouse employees. The absence of Mr Dass on a day to day basis was considered not to provide for an overall managerial and/or customer service position in the business. The delegate concluded that Ms Kaur may be performing some of these tasks and not those of a Marketing Specialist on a full-time basis.

18. On review, Mr Dass explained that although he had labelled Mr Singh as a Warehouse Manager, he was the manager, supervisor and customer service operator for the NSW operations of the applicant. Because they deal in trailer parts he submitted to the Tribunal refers to their respective offices nationally as warehouses. It was claimed that the financial reports submitted confirm that sales have grown significantly under the guidance of Ms Kaur and they now stock and supply over 2,000 products. These were sold on multiple platforms with retail, wholesale and online sales. The updated organisation chart submitted to the Tribunal further documents that the sales staff have now increased with two additional full-time employees, directly responsible for customers service and sales.

19. The submissions to the Tribunal on behalf of Mr Dass is that he is the Director of multiple companies in the Sunrise Industries Group of companies, information was provided at the hearing that within the Melbourne company there are over 30 employees and at least 10 staff are employed in the Queensland company. Mr Dass claimed to have been caught off guard and unawares by the telephone enquiry from the Department and even the delegate had concluded that as a Director located in Melbourne he was not acquainted with the day to day activities of the business.

20. Mr Bawa told the Tribunal that he was more familiar with the day to day operations. He spoke openly about the technical nature of the parts supplied by the applicant and the need to have a specialist in the role that was able to assist the applicant to market appropriately the parts and present information in a digestible form to customers. In her role liaising with customers and answering complaints, Ms Kaur was learning how the applicant could best describe and market its products and obtain information about the factors affecting sales. As the Marketing Specialist she is the best person to engage with their wholesale customers as to how to market the applicant’s products. Mr Bawa told the Tribunal that they are not a manufacturer of parts but on-sell them to their customers. In these circumstances they cannot have significant stock retained on the shelf but rely heavily on the advice of Ms Kaur as a Marketing Specialist to inform of their stock levels and products for promotion.

21. It was claimed that Ms Kaur had assisted the applicant to focus on its brand growth. She was directly involved with the creation of the catalogue, for which all photographs and product specifications were created in-house. Her considerable role for the last 12 months had been the development of the website. It was claimed that Ms Kaur’s marketing activities assisted all of the Sunrise Industries Group of companies and the marketing budget was apportioned in each company. There was only one other Marketing Officer currently engaged within the group of companies and Mr Kaur worked closely with this officer to steer promotion and marketing for the benefit of the whole Sunrise Industries Group of companies.

22. In addition to her work on the website, the extensive catalogue and the blog articles provided to the Tribunal, Mr Bawa gave detailed evidence of the assistance as a Marketing Specialist that Ms Kaur was able to provide the applicant during the pandemic. He told the Tribunal that there was a considerable increase in freight costs and extensive supply delays during this period and Ms Kaur was able to provide invaluable advice and analysis on the movement of stock, the market for certain products and new product leads. On review the Tribunal has been provided with considerably greater information about marketing opportunities developed by Ms Kaur, such as the branding of shelves to display their products for wholesalers and undated branded packaging. By monitoring the sales, market leads and developments in the market she is demonstrated to have provided the applicant with advice on the development, coordination and implementation of the pricing, marketing and promotion of the applicant’s goods.

23. Ms Kaur was able to speak to the Tribunal without hesitation in relation to her role and activities which included researching marketing initiatives for the company. Also her involvement with Accountants and the management team in ensuring sales targets are achieved and the promotion of the applicant’s goods are within budget. It was confirmed at the hearing that all company marketing takes place in-house. There are no external consultants engaged. The financial reports submitted detail that the applicant’s sales revenue has increased from $3,034,000 in the year ending 30 June 2016 to $5,018,190 in the year ending 30 June 2021. BAS records submitted also show a sustained growth in sales. It was submitted, and the Tribunal accepts that the growth of the company and its products as demonstrated in the financial documents and promotional material, evidence the success of the applicant’s marketing strategies to date and the benefit to the applicant of Ms Kaur in the role.

24. It was further claimed that the applicant had a need for further staff but has experienced difficulty throughout the Sunrise Industries Group of companies in recruiting appropriately qualified personnel who had knowledge and expertise of their specialist products. Mr Bawa claimed that there was a genuine need for the role of a Marketing Specialist within the applicant’s business to support and sustain the business growth and expansion into new product lines. This was also a position that Ms Kaur was engaged in on a full-time basis. Ms Kaur further confirmed in her evidence before the Tribunal that she was not dealing with customer sales for any other purpose than to inform marketing strategies. Her evidence to the Tribunal was that she was engaged full-time in the role of Marketing Specialist.

25. Having considered the totality of the evidence before it, including considerable updated material that was not before the delegate the Tribunal is satisfied that the applicant has demonstrated that it has a genuine need to employ a full-time Marketing Specialist at the business.

26. Accordingly, the requirement in reg 5.19(3)(i) is met.

27. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

28. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Penelope Hunter
    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.

    Temporary Residence Transition nomination

    (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’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)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)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

    (h)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

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.