Suntree Solar & Electrical Pty Ltd (Migration)
[2020] AATA 918
•24 March 2020
Suntree Solar & Electrical Pty Ltd (Migration) [2020] AATA 918 (24 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Suntree Solar & Electrical Pty Ltd
CASE NUMBER: 1829410
HOME AFFAIRS REFERENCE(S): BCC2017/1996263
MEMBER:Bridget Cullen
DATE:24 March 2020
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 24 March 2020 at 2:06pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – genuine position – duties to be performed by nominee – job title and duties listed on company’s website – two different position nomination applications for same nominee – changes of company director and delegation of authority – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 140GB, 359AA
Migration Regulations 1994 (Cth), r 2.72(10)(f)
CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 September 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 6 June 2017. 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.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) of the Regulations because the Delegate was not satisfied that the nominee would perform the full breadth of duties defined in ANZSCO of a Technical Sales Representative (ANZSCO 225499), and that the nominated position was therefore not genuine.
On 10 January 2020, the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 6 February 2020, at 12:30 pm AEDT. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.
It is clear that the applicant received the hearing invitation, as it returned a “Response to hearing invitation” Form to the Tribunal on 3 February 2020. On this form, the applicant crossed out the details of “Mr Zahirul Islam Miazi” and indicated that “MD Tohidul Hasan” would attend on behalf of the applicant Suntree Solar & Electrical Pty Ltd. Mr Miazi’s details were on the Hearing Invitation sent by the Tribunal as he was the Director of the applicant at the time the application was lodged in the Tribunal. The applicant did not advise the Tribunal, before the hearing, of the change to its directorship.
Due to circumstances beyond the Tribunal’s control, the Member could not conduct the hearing that day, and rescheduled the hearing for 7 February 2020 at 1:00 pm (AEDT).
The hearing was conducted jointly, with the hearing of the related visa refusal for the nominee, Mr Chiragkumar Bhikhabhai Patel. The applicant was represented in relation to the review by its registered migration agent, Ms Diana Xidan Tong (MARN 9359088) of Parish Patience Legal and Migration Services. Ms Tong attended the hearing, and was given the opportunity to make extensive submissions in relation to all aspects of the applicant’s case.
At the commencement of the hearing, the Tribunal raised concerns that the applicant did not appear, as the sole director of Suntree Solar & Electrical Pty Ltd, Mr Bobi Velovski, was not present. The Tribunal put the applicant on notice at the hearing that it considered that the applicant had not properly sought, through the Tribunal, for Mr Hasan, who is an employee, to appear in the Tribunal instead of Mr Velovski.
At no point did the applicant seek the Tribunal’s permission for it to appear at the hearing through anyone other than its current director. Mr Hasan appeared in the Tribunal to give evidence, as did the nominee, Mr Patel.
Mr Hasan advised the Tribunal, and ASIC records provided by the applicant confirm that a “Mr Bobi Velovski” was appointed as the sole director and secretary of the applicant company on 17 September 2019. Mr Hasan ceased his role as a Company Director the same day, on 17 September 2019. Mr Zahirul Islam Miazi (the director at the time of application in the Tribunal) ceased his role as a Company Director and Secretary on 16 February 2018.
Following the hearing, Mr Hasan advised the Tribunal that Mr Velovski had been overseas for several months due to the illness of his daughter.
On 19 February 2020, the Tribunal wrote to the applicant, and asked that it provide:
- Evidence of Mr Bobi Velovski being overseas; and
- A sworn copy (cited by a JP, Solicitor or Notarized person) of the letter of 10 February 2020, authorising Mr Hasan to appear before the Tribunal.
In response to the Tribunal’s request, the applicant provided the Tribunal with a “Statement” from Bobi Velovski, dated the 15th February 2020, which is prior to the date of the Tribunal’s request. The letter, in part, states:
I, Bobi Velovski, Managing Director of Suntree Solar & Electrical Pty Ltd. Am at this moment across sea, abroad and there is a possibility that I have to stay there for a longer period of time, because I intend to sell my property and permanently stay in Australia.
I authorise Mr Mohammad Tohidul Hasan to present himself at Court.
I also state that Mr Mohammad Tohidul Hasan works at Suntree Solar & Electrical Pty Ltd as General Director. He is authorized to sign all documents regarding the company and legally represent Suntree Solar & Electrical Pty Ltd during my absence.
At no point in the letter from Mr Velovski dated the 15th February 2020, is there any mention of his being offshore due to his daughter’s illness, as was asserted by Mr Hasan.
The Qatar Airways E-Ticket Receipt provided to the Tribunal by Mr Velovski indicates that he arrived to the Kingsford Smith Airport in Sydney on 31 January 2019, having travelled from the Skopje International Airport, located in the Republic of Macedonia, then via Doha to Sydney. Mr Velovski then departed Australia on 30 September 2019, just 13 days after becoming the sole director of the applicant company.
There is no information before the Tribunal suggesting that Mr Velovski has returned to Australia. In this respect, the Tribunal is cognizant that s.201A(1) of the Corporations Act 2001 (Cth) requires all private “Pty Ltd” companies, such as the applicant, to have a minimum of one director, and that director “must ordinarily reside in Australia”. Mr Velovski is the sole director, and has not been resident in Australia since his departure on 30 September 2019.
It is not the role of this Tribunal to determine whether the applicant is compliant with this legal obligation. The Tribunal will refer the information to the Australian Securities and Investment Commission “ASIC”, for its consideration as the corporate regulator.
The Tribunal does not consider that Mr Velovski has provided an adequate explanation for his failure to appear in the Tribunal, in his capacity as the sole director of the applicant company. Further, although the Tribunal accepts that a corporation can validly authorise someone other than the Director to appear on its behalf, the Tribunal does not consider that Mr Velovski can provide retrospective authority for Mr Hasan to appear on the applicant’s behalf. Any valid authority for Mr Hasan to make representations on behalf of the company should have been provided before the hearing.
On this occasion, the Tribunal allowed the hearing to proceed, and has heard the evidence of both Mr Hasan and Mr Patel, as well as the submissions of the applicant’s representative. The Tribunal also provided the applicant with time to lodge further evidence and submissions following the hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine. This was considered in Cargo First Pty Ltd v MIBP [2016] FCA 30, where the Court (at [34]) upheld the Tribunal’s approach of qualitatively assessing the position and comparing this with the occupation nominated in order to determine whether it was genuine.
The applicant applied for the nomination on 6 June 2017. The delegate refused the nomination on 27 September 2018, on the basis that the delegate was not satisfied that the nominee would perform the full breadth of duties defined in ANZSCO of a Technical Sales Representative (ANZSCO 225499), and that the position was therefore not genuine. The application for review presently before the Tribunal was lodged on 8 October 2018.
In the time between then and January 2020, the Tribunal did not receive any documentation in support of the application. On 10 January 2020, the applicant was invited to appear before the Tribunal to give evidence and present arguments.
The Tribunal, subsequent to the hearing invitation, received the following documents as evidence, on the following dates and times:
Date
Time (in AEDT)
Document
29 January 2020
7:49 pm
Q1 2019-2020 Financial Year BAS; Q1 2018-2019 Financial Year BAS (as submitted).
29 January 2020
7:51 pm
Q2, Q3 & Q4 2018-2019 Financial Year BAS (as submitted).
29 January 2020
7:53 pm
2018 – 2019 Tax Return, Unsigned or Dated.
30 January 2020
4:56 pm
Solar System Supply and Installation Contracts.
3 February 2020
10:37 am
ATO webpage of BAS for Q3 of the 2018-2019 financial year.
3 February 2020
10:38 am
2018 – 2019 Tax Return form as completed, signed on 20 January 2020; Financial Report for the 2018-2019 Financial year; Financial Report for the 2017-2018 Financial year (uploaded twice twice); and ATO webpage of BAS for Q1, Q2 and Q4 of the 2018 - 2019 financial year.
3 February 2020
10:39 am
Signed 2017 – 2018 Tax Return form as completed, signed on 20 January 2020; and ATO webpage of BAS for Q1 of the 2019 – 2020 financial year.
3 February 2020
10:46 am
Response to hearing invitation for hearing on 6 February 2020
3 February 2020
2:33 pm
Letter of Engagement, signed by managing director and nominee on 20 January 2020.
3 February 2020
4:11 pm
PAYG for the nominee 2017 – 2018, 2018 – 2019; and Excel Sheet with no name / explanation of relevancy.
3 February 2020
4:13 pm
Commercial Lease for a term of 1 year commencing 19 June 2017.
3 February 2020
4:41 pm
Letter of Reference from AIMS Marketing Solutions Pty Ltd dated 24 November 2014; Employment Reference Letter from Sales Fleet Pty Ltd dated 9 July 2013; Certificate of Excellence presented to the nominee from Aegis Direct (undated); Certificate of Excellence presented to the nominee from Aegis Direct (dated 21 July 2010); Job advertisement for Technical Sales Representative for Roofing Supermarket (seemingly accessed 30 January 2020); and Screenshot of PayScale showing average salary for Sales Representatives in Australia.
4 February 2020
11:19 am
ASIC Current & Historical Company Extract for company; with Bobi Velovski listed as the current director and Secretary; and Resume for the nominee.
5 February 2020
12:11 pm
Certificate of Excellent presented to the nominee from Suntree Solar on 24 December 2018
5 February 2020
12:12 pm
Duplicate of the previous document; Certificate of Excellence presented to the nominee from Suntree Solar on 27 December 2017; and Certificate of Excellence presented to the nominee from Suntree Solar on 23 December 2019
6 February 2020
9:41 am
2017-2019 Sales list for the Nominee.
6 February 2020
1:46 pm
Response to hearing invitation for 7 February 2020
6 February 2020
2:04 pm
Bank Statements from ANZ with date range of 21 June 2019 – 21 November 2019; and Commonwealth Bank Business Transaction Account transaction history where it appears to be showing inconsistent payments being made to an account between 6 April 2018 and 13 December 2019.
6 February 2020
3:35 pm
Letter from Nextzen Taxation Pty Ltd, the applicant’s accountant, dated 5 February 2020; Organisational Chart; Document containing Projected Cash Flow for the 2020 calendar year; Suntree Solar & Electrical Pty Ltd Business Plan (Prepared on 5 February 2020, with last update on 20 December 2019); and Bank Statements from ANZ with date range of 21 November 2019 – 20 December 2019.
It would be preferable, where documents are available to an applicant earlier, for them to be provided to the Tribunal Registry page numbered, indexed, and bundled, in order to facilitate the Tribunal more readily being able to prepare in advance of a hearing. A representative can value add as an advocate when they are able to gather, and collate, the material provided to them by their client, so that the Tribunal can appreciate the applicant’s best possible case, at the earliest possible juncture.
Following the hearing, the Tribunal received the following additional documentation from the applicant, at the following times (in AEDT):
Date
Time (in AEDT)
Document
14 February 2020
9:52 am
2018 – 2019 Individual Tax Return for the nominee, signed 13 February 2020; Financial Statements for Preyasi & Princy Pty Ltd for the financial year ending 30 June 2019; signed 11 February 2020 and a Company Tax Return for Preyasi & Princy Pty Ltd for the 2018 – 2019 Financial Year, signed 11 February 2020.
14 February 2020
10:42 am
Statement from Mohammad Tohidul Hasan, dated 10 February 2020, signed off as the ‘General Manager’; Letter from Sanjay Vadher, accountant for Adroit Taxation Services, in their capacity as the accountant and tax agent for Preyasi & Princy Pty Ltd; the same financial documents for Preyasi & Princy Pty Ltd uploaded at 9:52 am.
14 February 2020
2:44 pm
Statement from Geetaben Patel (the nominee’s wife), director of Preyasi & Princy Pty Ltd, dated 11 February 2020.
14 February 2020
6:23 pm
2018 – 2019 Individual Tax Return for Geetaben Patel, signed 11 February 2020.
16 February 2020
5:27 pm
Second Statement from Mohammad Tohidul Hasan, also dated 10 February 2020.
17 February 2020
1:31 pm
Letter from Bobi Velovski (director) and Mohammad Tohidul Hasan, dated 10 February 2020; Letter from Ahmad Nabi, accountant at Nextzen Taxation Pty Ltd, in their capacity as the applicant’s accountant, dated 17 February 2020; Financial Report for the applicant for the financial year ending 30 June 2019, signed on 17 February 2020.
17 February 2020
1:49 pm
Documents relating to 2018-19 company tax, printed from the ATO online services website.
The casual nature of the applicant’s approach to directorship
At the hearing, the Tribunal asked Mr Hasan why he had signed the Applicant’s Company Tax Return 2018 on 20 January 2020, given that he had ceased being a Director some months prior. The Tribunal also queried two Suntree Solar “Certificates of Excellence” that had been issued to Mr Patel on 23 December 2019 and 24 December 2019, which are signed by “Mohammad Hasan” as “Director”, again at a point in time after which Mr Hasan ceased being a director.
Mr Hasan told the Tribunal that this was a mistake on his part, and he should not have signed as a Director. Following the hearing, the applicant provided a letter from Mr Hasan wherein Mr Hasan says the following:
“I acknowledge that it was an error on my side to sign the company financials and other documents as a directorgiven [sic] that I am no longer a director,this error occurred was purely of administrative nature because I was a director just a few months back and the title was printed in the document already when I signed it. It was an emergency situation where I had to act on behalf of the director Bobi Velovski have been overseas for several months due to the illness of his daughter. To ensure I have all required competencies and authority in the future the company is now intending to reinstate my directorship.”
It concerns the Tribunal that the applicant has engaged in loose practices surrounding directorship. The Tribunal considers that, given Mr Hasan’s written admission of his conduct in signing financial documents when he was not a director, that this is also a matter that should be referred to the Australian Securities and Investment Commission, for its consideration as the corporate regulator.
For the sake of completeness, the Tribunal acknowledges that the applicant’s accountant has provided a letter of support to the Tribunal confirming that Mr Hasan has been acting as a director on behalf of the company director, Mr Bobi Velovski, while he is overseas. The Tribunal does not consider that this letter is capable of regularising conduct which the applicant concedes was irregular.
The applicant’s financial position
The Tribunal has carefully examined the financial records that have been provided to it by the applicant. The information before the Tribunal indicates that there are significant payments being made to third party related entities by the applicant, including companies that are owned by the nominee, Mr Patel’s, wife. At the hearing, Mr Hasan and Mr Patel told the Tribunal that the applicant would readily be able to pay Mr Patel’s wages, as Mr Patel was earning well in excess of the total income claimed on Mr Patel’s 2019 Individual Tax Return of $41,973.
These additional earnings, which are not reflected on Mr Patel’s tax returns, were described by Mr Patel and Mr Hasan as “commission payments”. The applicant’s commission payments are paid to Preyasi & Princy Pty Ltd, of which Mr Patel’s wife is the sole director.
There is no evidence before the Tribunal corroborating the evidence of Mr Hasan and Mr Patel that the payments represent commission, or explaining the manner in which the payments are calculated. The payments made to Preyasi & Princy Pty Ltd were $129,958.04 in 2019; and $81,696.53 in 2018. It is not clear to the Tribunal, other than driving profits out of the applicant company, what value the payments made to Mr Patel’s wife’s company represents.
The bank records provided to the Tribunal by the applicant reveal two significant sources of income – the first are payments made to the applicant’s ANZ Business Advantage Account by “Certegy Ezi-Pay” – which is a “buy now, pay later” finance provider. This is consistent with the information reflected on customer order forms, reflecting that customers seeking that the applicant perform solar installations are able to obtain credit, which is then paid to the applicant. The second significant source of income comes from “Emerging Energy EEG” – which trades STC’s “which are small scale technology certificates”. As explained by Mr Hasan at the hearing, these are the Clean Energy Regulator tradable certificates that solar customers receive on installation, funded by the Commonwealth government.
The ANZ Business Advantage Account reflects frequent, regular payments in the amount of $500, paid to “Astradius Collections Pty Ltd Tru”, which is a debt collection agency.
The applicant’s website describes Mr Patel as a “Sales & Marketing Specialist” not a “Technical Sales Representative (ANZSCO 225499)”
At the hearing, adopting the process set out in s.359AA of the Act, the Tribunal invited the applicant to respond to concerns the Tribunal had about whether the role of Technical Sales Representative was genuine. The Tribunal had obtained Mr Patel’s role description from the applicant’s public website – >
The description is as follows:
Chiragkumar Patel – Sales & Marketing Specialist
Identifies market opportunities and advises on the development, coordination, and implementation of plans for pricing and promoting an organization’s goods and services. Researches and analyses a variety of marketing information, including market trends, pricing schedules, competitor offerings, product specifications, and demographic data.
Research and produce reports to discuss with Directors/Manager and finance team to guide the direction and activities of the business. Analyze data and make decisions based on research as required. Develop new marketing strategies and campaigns based on a detailed analysis of market requirement for the product. Works with creative teams to come up with branding ideas, advertising copy, graphic designs, and promotional materials. Identifies the appropriate channels where each product or service’s marketing materials can be delivered to the public. Enforces brand marketing guidelines throughout each product to create a cohesive feel to each campaign.
Manage the budgets for all executions across all brands. Provides expert direction and insight to team members throughout each campaign. Acts as a go-to resource for up-to-date, accurate research and market information.
Maintaining public relations and vendor management. Supervising online and social media brand promotions. Responsible for meeting the profitability, revenue and volume growth targets by constant value addition through brand building and product innovation and renovation. Responsible for coordinating activities of specialists in production, sales, advertising, R&D, market research, purchasing, packaging development, and finance team to meet brand objectives.
Further, and also in accordance with the process set out in s.359AA of the Act, the Tribunal invited the applicant to respond to concerns the Tribunal had about the genuineness of the Technical Sales Representative role, in view of the Tribunal’s awareness that on 28 June 2017, the applicant lodged a nomination application under the Direct Entry stream of the Regional Sponsored Migration Scheme (RSMS) for the position of Sales and Marketing Manager (ANZSCO Occupation Code: 131112). The nomination was lodged in favour of Mr Chiragkumar Bhikhabhai Patel, the same nominee as in this review.
The Department refused the nomination, which is now being reviewed by the Tribunal in matter 1913236. The Decision Record, which has been provided to the Tribunal by the applicant in conjunction with the review in 1913236 reflects the following:
The nominator states ‘The role of the Sales and Marketing Manager is currently taken up by an existing part-time employee Chiragkumar Patel (Chirag). However, the business has expanded its customer base greatly, and continues to do so month by month. With the increase in clientele and the expansion of the business, it is necessary to have a reliable,suitable and committed full-time Sales and Marketing Manager who can manage sales and handles our marketing strategies. Our business is centralised on sales and ensuring in product sales is vital to the survival of our business. The heart of our business success lies in sales and marketing department to promote our range of products which we carefully choose from the reliable and top brand manufacturers and suppliers. Because of our hardworking sales and marketing department, our profits before income tax has increased from $66,061.31 on 31 December 2016 to $109,026.00 on 30 July 2017. Our business would like to keep our profits projected and our customer network to be expanded in the future.”
The applicant, and Mr Patel, chose to respond to the Tribunal’s invitation to comment at the hearing. Mr Hasan told the Tribunal that both nominations were needed, but that mostly Mr Patel is doing the work of a Technical Sales Representative. Mr Patel agreed with Mr Hasan’s statements.
In response to the Tribunal’s queries about which role Mr Patel would perform, and why there were 2 nomination applications for different roles, Mr Hasan told the Tribunal that is Mr Hasan “got one” he “would not need” the other role. This suggests that the roles are not genuine, but are to achieve a migration outcome for Mr Patel.
Although the Tribunal was careful to comply with the s.359AA process, and went to lengths to explain the relevance and possible consequences of the information it had acquired from the applicant’s own website and AAT review matter 1913236, and gave the applicant the opportunity to seek an adjournment before commenting, Mr Hasan and Mr Patel were clear in their desire to comment at the hearing.
At the end of the hearing, the representative asked for further time to respond to the s.359AA material. The Tribunal explained that, at the time Mr Hasan and Mr Patel chose to respond, they waived the opportunity to make an application for further time. Regardless, and in order to afford the applicant as much procedural fairness as possible, the Tribunal did allow the applicant a further period following the hearing to submit additional information and evidence.
The applicant’s post-hearing statement from Mr Hasan offers the following:
We would also like to emphasis again that the nominated position of Technical Sales Representative is genuine and crucial to the survival of our ongoing business.
Suntree Solar is generating most of its revenue from Direct selling to Residential & Commercial Clients. The vast majority of our clients are obtained through the following process:
We obtain contract numbers of residential home owners from RP Data. They are then called by us and offered a free no obligation Solar Assessment. During this appointment our Sales Representative explains our products’ benefits and features to customers and if they choose to proceed sells them particular products in accordance with the customer’s choice and budget.
Chiragkumar Bhikhabhi Patel has been working for us full-time since 17th February 2017 as a Technical Sales Representative and this is also the position we wish to nominate him for.
Suntree Solar & electical Pty Ltd generating half of the company’s revenue form Chirag’s Direct Selling. Chirag has a more than 30% closing-sell-ratio from appointments given to him. This exceeds the ratio of our sales contractors by far.
He also supports our sales contractors if they lack the expertise to answer the customers’ questions and trains them as required.
We therefore felt that, besides a position of a technical sales representative, he should have a work title reflecting his seniority and expertise in our organisation.
In addition to this, Chirga provides up with an invaluable contribution in marketing and promotion of our company and products. He markets our products directly to the customer during his sales and assessment appointments based on his expertise, which products sell and don’t sell, we are able to adjust our product range.
In terms of any particular marketing actitivites which Chirga, such as marketing meeting, marketing strategy planning and reporting, as explained during tribunal hearing, it takes up only 5 to 10 per cent of his time.
It is for these reasons, Chirag also wears other hats such as Sales and Marketing Specialist on our website and as Technical Sales and Marketing Manager in our Organisation Structure Chart.
However these hats do not change the facts that the nominated position in the last three years and two years in the futures would still be the role of a Technical Sales Representative with primary responsibilities of generating revenues for the company especially when the revenues have been down in the last two years.
The Tribunal places very limited weight on the evidence of Mr Patel and Mr Hasan. The evidence of Mr Hasan, in particular, on behalf of the applicant is fluid, and changes depending on his audience. The Tribunal does not accept Mr Hasan’s explanation about Mr Patel wearing “multiple hats” and considers that the role of Technical Sales Representative has been contrived in order to create a role for Mr Patel. While the Tribunal accepts that Mr Patel does work for the applicant, it is the position associated with Technical Sales Representative that the Tribunal must look at.
The inconsistent information published on the applicant’s own website, which clearly depicts Mr Patel as a Sales and Marketing Manager, in conjunction with Mr Hasan’s statement to the effect that Mr Patel “needs” a role cause the Tribunal to find that the position associated with the nominated occupation of Technical Sales Representative (ANZSCO 225499) is not genuine.
For these reasons the requirements of r.2.72(10)(f) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Bridget Cullen
MemberATTACHMENT - 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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