THE TRUSTEE FOR RAPID UNIT TRUST (Migration)

[2018] AATA 1805

THE TRUSTEE FOR RAPID UNIT TRUST (Migration) [2018] AATA 1805 (4 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  THE TRUSTEE FOR RAPID UNIT TRUST

CASE NUMBER:  1729902

DIBP REFERENCE(S):  BCC2016/3020670

MEMBER:Sheridan Lee

DATE:4 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 04 May 2018 at 1:55pm

CATCHWORDS
Migration – Employer Nomination – Approval of nominated position – Need for paid employee – Tasks of the role – Expansion of business – Company financials – Organisational charts – Lower skill level – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, r 5.19

CASES
Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264

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 Immigration on 14 November 2017 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).

2. The applicant applied for approval on 12 September 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis that the nomination did not satisfy r.5.19(4)(a)(ii) and 5.19(4)(h)(i)(A) of the Regulations because the applicant could not substantiate a need to employ a paid employee to work as a Management Consultant (ANZSCO 224711) or that the tasks of the role will correspond to the tasks of an occupation specified by the Minister in an instrument in writing (in this case, the tasks of a Management Consultant).

5. Mr Zaizhong Zhang appeared as the Director of the Trustee for the Rapid Unit Trust before the Tribunal on 18 April 2018 to give evidence and present arguments.

6. The applicant was represented in relation to the review by its registered migration agent.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 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.

9. The Tribunal had before it the departmental file, and documents provided by the applicant through its registered migration agent.

10. On 15 March, 18 and 26 April 2018 the Tribunal received submissions in support of the application from the representative. The delegate did not have all of these documents before them when making a decision.

11. The documents provided to the Tribunal include: an employment contract between the nominee and the applicant, company financials for years ending 30 June 2017, and 30 June 2016, a number of BAS lodged with Australian Taxation Office (ATO), a receipt for WorkCover Insurance for 2017/18, an organisational chart, receipts for training, receipt for a job advertisement placed by the applicant, bank statements, a statement in support of the nomination date 7 May 2017, summary of job duties against ANZSCO, PayScale and Open Universities extracts and a deed of settlement for the Rapid Unit Trust.

12. In undertaking this assessment, the Tribunal is aware that there is no formal onus of proof associated with administrative inquiries and decision-making. However, the Courts have held that it is for an applicant seeking a particular outcome to put forward material in as much detail as is necessary to enable a decision-maker to establish the relevant facts. It is not for the Tribunal to fill any gap or make out the applicant’s case.[1]

    [1] Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264, 20-30.

    The application is compliant: r.5.19(4)(a)

13. 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.

14. From the information on the Department’s file, the Tribunal is satisfied that the application for approval was made on the prescribed form and that the prescribed fee was paid. Written certification stating the nominator has not engaged in conduct that contravenes s.245AR(1) was provided.

15. For the purposes of subparagraph 5.19(4)(a)(ii), the Tribunal finds that the application for nomination form outlines that the position to be filled is a Management Consultant.

16. In relation to the 'direct control' element of subparagraph 5.19(4)(a)(ii), the Tribunal notes that along with other documentation, the applicant submitted an organisational chart and a signed contract of employment between the applicant and the nominee. The chart shows the structure of the business and has the nominated position reporting to the Director. An overview of the employee’s duties and responsibilities was annexed to the proposed employment agreement, with duties including the provision of advice to the Director.

17. According to the primary decision record provided to the Tribunal, the delegate was not satisfied that subparagraph 5.19(4)(a)(ii) had been made out as the business did not supply sufficient evidence to justify the need for a paid employee to work in the position of Management Consultant.

18. The Tribunal observes that the wording of subparagraph 5.19(4)(a)(ii) does not make reference to a 'genuine need' for the applicant to employ a paid employee to work in the nominated position under its direct control.

19. Given the wording of subparagraph 5.19(4)(a)(ii), the Tribunal is satisfied that this provision is not directed at a qualitative assessment of the nominator's need for a paid employee to work in the nominated position. This view is supported by the context in which subparagraph 5.19(4)(a)(ii) appears, as r.5.19(4)(a) refers to “the application for approval” and subparagraph 5.19(4)(a)(i) directs the decision maker's attention to whether that application complies with the administrative requirements set out in r.5.19(2).

20. The Tribunal finds that the application is sufficient to meet the requirements of subparagraph 5.19(4)(a)(ii). The tasks that the business needs the position to undertake are discussed in more detail below.

    Tasks of the position r.5.19(4)(h)

21. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:

    ·     the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/060), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met.

22. ANZSCO outlines that the tasks of occupations within the unit group of Management and Organisation Analysts (which includes Management Consultant) as including:

    ·     assisting and encouraging the development of objectives, strategies and plans aimed at achieving customer satisfaction and the efficient use of organisations' resources

    ·     discussing business and organisational shortcomings with clients

    ·     analysing and evaluating current systems and structures

    ·     discussing current systems with staff and observing systems at all levels of organisation

    ·     directing clients towards more efficient organisation and developing solutions to organisational problems

    ·     undertaking and reviewing work studies by analysing existing and proposed methods and procedures such as administrative and clerical procedures

    ·     recording and analysing organisations' work flow charts, records, reports, manuals and job descriptions

    ·     preparing and recommending proposals to revise methods and procedures, alter work flows, redefine job functions and resolve organisational problems

    ·     assisting in implementing approved recommendations, issuing revised instructions and procedure manuals, and drafting other documentation

    ·     reviewing operating procedures and advising of departures from procedures and standards.

23. ANZSCO further outlines that a Management Consultant ‘Assists organisations to achieve greater efficiency and solve organisational problems’.

24. At the hearing, Mr Zhang gave evidence that the business operates as a panel beaters in Lilydale, Victoria. The business currently employs 15 staff to undertake panel beating, spray painting and administrative tasks. He went on to explain that he is currently undertaking work to expand the business into providing mechanical services in addition to panel beating.

25. The organisational chart provided to the Tribunal shows that the Management Consultant sits at the same level as the ‘Admin Manager’ and the ‘Technician Manager’. Below these positions are the panel beaters, painters, assemblers and cleaners, receptionist and bookkeeper.

26. Company financials provided by the applicant for the year ending 30 June 2017 show that while the business had relatively high turnover at $3,903,421, the business made a net profit of $218,774 for the financial year.

27. Mr Zhang outlined that the Management Consultant will assist him as the Director with planning, restructuring, supervising and giving advice. When asked for a practical example of the day-to-day tasks, Mr Zhang explained that the Management Consultant would be in the office, making sure procedures are followed and staff do the right thing, for example wearing the correct uniform and displaying the correct signs.

28. On 28 February 2018, the applicant provided the Tribunal with a document through its representative titled ‘correspondence between ANZSCO and job duties of nominated position’. The Tribunal acknowledges that the duties outlined in the document align with the tasks set out in ANZSCO. However, the tasks are not supported by the size and nature of the business. For example, an ongoing need to ‘initiate and manage the consultation processes for organisational staff in any change management initiatives’ or ‘develop comprehensive business proposals for all components of organisational change’.

29. The Tribunal finds, that even with the forthcoming expansion of the business to include mechanical repair, it is unable to be satisfied that a Management Consultant would be in a position to undertake tasks at the requisite level, such as analyse and revise work flows, records, reports, manuals and job descriptions, draft procedural manuals, review operating procedures, analyse current systems and structures for a business of this nature and size.

30. In addition, the examples provided by the applicant at the hearing are of a lower skill level than the tasks outlined in ANZSCO and in the document provided to the Tribunal. They involved general supervision of staff, rather than high-level strategic analysis and advice on the effectiveness of policies and procedures.

31. As such, the Tribunal cannot find that the tasks to be performed in the position correspond to those of a Management Consultant. Accordingly the requirements of r.5.19(4)(h) are not met.

32. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

    The Tribunal affirms the decision under review to refuse the nomination.

    Sheridan Lee
    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).