Unique Education & Migration Services Pty Ltd (Migration)

Unique Education & Migration Services Pty Ltd (Migration) [2022] AATA 1055 (17 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Unique Education & Migration Services Pty Ltd
CASE NUMBER:  1828280
HOME AFFAIRS REFERENCE(S):          BCC2017/3004248
MEMBER:Namoi Dougall
DATE:17 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 17 January 2022 at 12:04pm

CATCHWORDS
MIGRATION – nomination – Student Counsellor – applicant performed admission work – position associated with the occupation is not genuine – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GBA, 245AR
Migration Regulations 1994, rr 2.72, 2.73

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 6 September 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 21 August 2017. A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 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 reg.2.72(10)(f) because the delegate was not satisfied that the position associated with the nominated occupation of Student Counsellor (ANZSCO 272115) was genuine. The delegate referred to the role of Student Counsellor being typically associated with an organisation in the field of education, but the applicant’s business is Migration Agency and is not in the area of providing Education Services.
Ms Shefail Nandra, a director of the applicant appeared before the Tribunal on 17 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Indraja Reddy.
The applicant was represented in relation to the review.

BACKGROUND

In the application for approval as a business nominator the applicant nominated the nominee and indicated that the base rate of pay per annum and the guaranteed annual earnings would be $60,000 for a 38 hour week. The location where the occupation would be carried is Strathfield, in Sydney, New South Wales. The applicant also stated that the relevant qualification is a Bachelors Degree and that relevant experience was past experience in a similar position.
Provided to the Department was an Employment Contract dated 14 August 2017 and signed by Dr Kuldip Nandra, director of the applicant and the nominee which indicates that the annual salary of the nominee will be $60,000. The contract also sets out the details of the nominee’s superannuation and leave entitlements.
At hearing Ms Nandra stated that the primary business of the applicant is education at 60% of the buisness. Her father was a professor at Sydney University in Science who supervised students studying for their doctorates and most of his students being overseas student. When Dr Nandra retired, he was interested in international studies and the issues faced by many students, so he entered the industry. In October 2009, he formed the applicant company.
At the hearing Ms Nandra stated that the business of the company is primarily the admission of international students into various institutes around Australia and post admission, and the applicant provides services to students in relation to any issues they suffer during their studies such as: career counselling; matching course to career; preparing students to move into their career; study intervention; and to coordinate between students and colleges so the students can plan their studies more effectively, especially as students are from different backgrounds.
At the hearing Ms Nandra stated the applicant also deals with other issues faced by international students including: settling into another country; communication problems, as English is not their first language; adjustment issues as the students are away from their families and in a new culture and environment; and some students have depression and other issues relating to alcohol and drugs. Further issues include domestic violence and expectations from families and partner due to the different backgrounds which leads to stress and depression. Ms Nandra stated that the applicant is like a hub for international students from time they arrive and obtain admission into a course through each and every issue the student faces, such as career and mental health, the applicant helps them through as the aim of the applicant is to help students to complete their study properly.
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 reg 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.
Provided to the Department and the Tribunal was a position description which stated as follows:
Counselling
·Counselling International Students through studying student profile and advising on courses available based on their interest and calibre. Providing Information about Courses and Institutes and advising on career decisions.
·Assisting Students to select Courses and Institutes in align with their career goals.
·Analysing skills and suggesting skill-sets for self-development and career growth.
·Advising students about documentation requirements for Admissions and assisting in preparing documents according to checklists of respective Institutes.
·Attending training sessions and utilising skills gained to provide better information to students.
·Maintaining up-to-date information about Courses and Universities and providing relevant information to students.
·Listening and Analysing student issues such as adjustment problems, language barriers, home-sickness, financial issues, cultural differences, study difficulties, discrimination, racism.
·Advising solutions/techniques to deal with issues faces by International Students. Providing advice for adjustment and change in behaviour of students to develop the right attitude for blending in the Australian society.
·Escalating and suggesting professional help such as psychologist sessions for students.
·Mediate between the Student and Institute authorities if required.
·Providing Students with job-seeking tools and information and assisting them in Applications.
·Complete and maintain accurate student records, counselling logs, education histories, career advice and progress
·Attending meetings and information sessions conducted by partner Institutes and maintaining healthy relationships with the Marketing Team.
·Advising students according to the Education Services for Overseas Students (ESOS) Act.
·Participating in the Team meetings and Improving the work progress of the Company.
Other duties as required
·Receiving enquiries (telephone, email, face to face) and following up enquiries received.
·Upselling other services - Student visa, Skilled Migration, Others.
·Search new Institutes and obtain contracts according to Client Requirement.
·Maintain/Updating Spreadsheets - Agent List, Colleges and Procedures Contact Li t.
·Maintaining database of Education Institutions and their requirements for students -Academic, English etc.
·Maintaining record of procedures for each Institute - including forms required, step by step admission procedure, financials required
·Updating forms/procedures as received from Institutes on a regular basis
·Maintaining and updating contact person for each Institute - Marketing, Admission, Accounts
·Searching new Institutes and obtaining contracts as per Market Developments and Client Requirement (we never say we don't have a course, we always find a way!)
The Tribunal has had regard to the ANZSCO occupational dictionary with regard to the position of Student Counsellor (272115) which is an occupation within the unit group (2721) Counsellors which ANZSCO describes as follows:
COUNSELLORS provide information on vocational, relationship, social and educational difficulties and issues, and work with people to help them to identify and define their emotional issues through therapies such as cognitive behaviour therapy, interpersonal therapy and other talking therapies.
The duties listed in the ANZSCO for (2721) Counsellors are as follows:
·working with clients on career, study and employment options by obtaining and examining information relevant to their abilities and needs
·providing information and resources to assist clients with job-seeking skills
·assessing client needs in relation to treatment for drug and alcohol abuse
·conducting counselling interviews with individuals, couples and family groups
·assisting the understanding and adjustment of attitudes, expectations and behaviour to develop more effective interpersonal and marital relationships
·presenting alternative approaches and discussing potential for attitude and behaviour change
·consulting with clients to develop rehabilitation plans taking account of vocational and social needs contributing information, understanding and advice on the learning and behaviour of students, especially those with special needs, and assisting parents and teachers in dealing with these needs
·may work in a call centre
Further, ANZSCO states that a Student Counsellor (272115): “provides information and assistance to students, parents and teachers about a wide range of matters such as students' personal problems, learning difficulties and special requirements.”
ANZSCO also states that the indicative skill level of the unit group is:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Evidence at hearing
At the hearing Ms Nandra stated that the nominee started in 2016 as a student counsellor. Prior to that she worked with another company in student admissions where she was trained in all aspects of that role. Her role was originally part time as the nominee was on a student visa. Around the time the nominee applied for a Subclass 457, she became a full-time employee. When asked what the nominee’s salary was when she started, Ms Nandra stated that they have always paid award wages.
At the hearing Ms Nandra stated the nominee started looking after admissions, so advising student on courses according to their interests and the careers they wanted to pursue. The company already had admission staff and she was primarily bought on to be a student counsellor so her father and the nominee made plans about the issues that affected international students and how she could help them. From 2009 to when the nominee joined, the applicant just catered for admissions but as her father’s vision was to provide services beyond admission including helping with the issues facing international students and to provide services to assist with the issues from a counselling perspective. A major plan was around the future career for students so not just advice on course options but what career paths could arise from the course. The nominee also provides data about what jobs are available in their home country, as well as, a list of extra skill sets they would need to obtain certain jobs. Ms Nandra provided the example of the IT industry, stating that it is popular in India but there are specialisation of roles within the IT industry which may be more lucrative or relevant to their training, so the nominee advises on what other courses a student may need to study including short courses. As most students primarily return to their home country, the nominee collects data from their home country and advises on what careers in those countries would be lucrative and how their study in Australia will help them obtain that career.
At the hearing Ms Nandra stated that nominee started working on her student counselling role while working part time, so she built her base to do more when she was full time. The company started on action plans which were developed with the students to see what additional skills were required, when they finished their studies. The nominee would help with CVs and LinkedIn profiles and counselled them on interview skills. She also linked them to recruitment firms in their own country. If they were applying for a post study work visa, the nominee provided information about the job market in Australia. Students often had psychological issues as many dealt with depression because they are away from their families, so the nominee developed a peer support program. The nominee links current students with new students so they do not feel lonely and are guided. The nominee also deals with language barriers by encouraging students to take English courses to develop their English and communication skills. Ms Nandra stated that the nominee did these roles from when she started student counselling as the company had been operating for 6 years and knew the issues faced by international students.
At the hearing Ms Nandra referred to other issues faced by students which included domestic violence, sexual orientation and expectations from partners and families. She stated that the nominee provides counselling to students for these issues by speaking with them and providing information and referrals to community groups such as the Indian Support Centre that provides support and free counselling especially for women. They also refer to MCYAS, the Muslim Support Centre and they also links with Temples and Facebook groups.
At the hearing Ms Nandra stated that the nominee provides counselling about Australian study, which is different from study in a student’s home country. Study in Australia is more practical with more tutorials and assessments in contrast to the students’ home countries where study can be more theoretical, and exam based. International students have difficulty adjusting, and this is when study intervention plans are developed. The nominee coordinates with the institutes where a student is facing problems with their study, she coordinates with the student support services in the institute to create a student intervention plan. The plan sets out what needs to be done, such as how many study days, tutoring, extra study or other resources are required for the student to improve. As students are reluctant to approach their schools the nominee coordinates with the schools.
At the hearing Ms Nandra stated that the nominee deals with students who have special needs, and she has to assess what extra resources as required such as wheelchair access, or access for hearing devices. Also, for female students with children she helps with finding childcare facilities.
At the hearing Ms Nandra stated that for students with depression the nominee advises on alternative therapies such as yoga groups or referrals to psychologist when necessary. Ms Nandra stated that the nominee is the first point of contact with students for complex matters.
At the hearing Ms Nandra stated that the nominee has performed all of these roles since she started as a student counsellor. However, other services have been added especially during the CIOVID-19 pandemic which have included advice on support by the government including financial support. During this period many students became very homesick as they could not go home which led to depression which, in turn affected their studies. All colleges provided lessons online as there were no face to face classes and many students did not study effectively online. As issue arose other services were added but Mrs Nandra confirmed that the core services remained the same.
At the hearing the Tribunal asked Ms Nandra if the nominee’s role would change if she got the visa and Mrs Nandra stated no as her role is essential and the company needs a student counsellor. The Tribunal asked again if her role would change, and Ms Nandra stated that extra services will be added as required but her primary duties would remain the same.
At the hearing, the Tribunal asked if Ms Nandra that if the nominee’s role was not to change then why is her salary increasing and Ms Nandra stated that her role would change as other branches opening and when the boarders open there will be a lot more students. Ms Nandra stated that they offered the nominee the current salary when the applicant applied and as soon as the nominee was granted her visa, the salary would increase. The Tribunal referred the nominee doing the role which was not going to change when she was granted a visa and Ms Nandra stated that the applicant was developing the role and the nominee’s role and her duties were increasing and then the COVID-19 Pandemic came and with a gap of 2 years with no new students, however, with the boarders are opening there will be more students and the business will expand.
The Tribunal explained its concern that the nominee would be doing the same role but was not being paid the salary of a Student Counsellor.
At the hearing the Tribunal also referred to its concern that the nominee did not have the relevant qualifications or experience and Ms Nandra stated that the company did not sponsor her immediately as she started in admission and later, she received training in student counselling, it was then that they nominated her as she had the relevant experience. The Tribunal referred to it being a year and asked if that is enough relevant experience. Ms Nandra stated that the nominee excelled and that the nominee with her father developed the role.
The Tribunal referred to the nominee dealing with students who were vulnerable young people with issues such as domestic violence and drug and alcohol abuse, when she had limited or no training. The Tribunal referred to the business nomination application stating that a Batchelor Degree was required. Ms Nandra stated when the role was established it was important to have someone form the same ethnic background who understood the cultural differences and difficulties faced by international students. The focus was on a section of the student community being those students from the Subcontinent. Further, the nominee had already learnt all of the administration for admissions and what was required for a successful admission. In relation to career pathways and providing career counselling and dealing with student and families a phycology degree is not required. When dealing with psychological issues she does a lot of referrals to professionals as she does not have skills.

In relation to the Diploma of Counselling awarded to the nominee by Elite College Australia, Ms Nandra stated that the nominee did not study for the Diploma as it was awarded to her entirely based on recognition of prior learning through her experience and the applicant had to provide documentation to support that she met the requirements of the College’s modules.
At the hearing the nominee stated that she started with the company in 2016 as a student counsellor on a part time basis. The nominee stated that she completed a Bachelor of Commerce in India and in Australia, a Graduate Certificate in Management. The nominee stated that her first role was as an admission officer in Student Solution Centre for International Students in 2015 where she learned what documents were required for international students. While the nominee worked in this role, she became aware of the numerous issues confronting international student and while performing this role she would also provide counselling. The nominee stated that she had also faced these issues and she wanted to help international students with these issues, therefore, in 2016, the nominee started with the applicant as a student counsellor. The Tribunal asked what experience she had when she started with the applicant and the nominee stated that she had her one-year experience in her previous role. The nominee then added that she worked as a counsellor and Dr Nandra explained to her what were the common issues faced by international students and he trained her as a counsellor as the applicant needed a counsellor. She has been working as a counsellor for more than 5 years, so she got an RPL certificate.
At the hearing the nominee stated that when a student engages the services of the applicant she goes through their background and advises them on a career pathway based on their study background and financial capability. She also assists with improving their English ability and where they would be able to study. The nominee also stated that she provides data to the students on their employment opportunities in their home country and in Australia, as well as, guiding them to look for jobs on Seek and Indeed and online job advertising sites and recruitment companies in their home countries.
At the hearing the nominee stated that often students do not stay on the same study pathway, so she counsels them on how to change study pathways and what are the opportunities. The nominee stated that India parents and families play an important role in what a student studies so once a student changes their study pathways, she explains to the parents the opportunities available from the new study area and what is required. The nominee stated that she is a counsellor for parents and students.
At the hearing the nominee states she gives students information on the issues they face such as psychological issues arising from adjusting to Australian culture and then she refers them to therapists. Most of students face language barriers and are not use to the local slang so she guides them to short term course to improve their English.
At the hearing the nominee referred to students facing family pressures and that she would counsel parents to adjust expectations, so the students do not get family pressure. The nominee conducts counselling interviews for example for students who suffer from domestic violence and refers them to community groups for assistance. When asked about her qualifications to counsel on domestic violence, the nominee stated that the female students do not open up so she has 2 to 3 sessions so they inform her about their situation, and she can then refer the student to community groups.
At the hearing the nominee stated she started a peer support group meeting about 2 years ago when COVID-19 Pandemic started. These sessions were held by Zoom. The nominee also develops study intervention plans for example one student could not study due to alcohol and gambling issues which meant his visa may not be renewed. She developed a plan which meant liaising with the college student advisors to develop the plan which including tutoring services. She also prepares counselling plans for families and partners, as often partners expect female students to study, as well as looking after children and domestic duties. She explains to partners the importance of studying. She also prepares action plans by matching qualification to a potential career including specialisation within that career to better match the student’s actual skills. These plans are developed for both the student’s home country and Australia.
At the hearing the Tribunal asked if her role has remained the same from when she started, and the nominee stated that during 2016 to 2017 she was learning to be a counsellor. However, from after a year the role has remained the same.
Additional evidence
The Tribunal was provided with statements from a number of students who have been assisted by the nominee including a male student who had gambling and alcohol issues which affected his study. This student was referred to a psychologist by the nominee and she assisted him in changing courses. Also provided were a case study for a female student who was the victim of domestic violence from her father in India. The nominee stated in the notes that after giving her general counselling on study options the student saw her on her own and opened up about the domestic violence situation and how it affected her mentally. The case notes then states that: “I gave her regular counselling to build up her confidence and to overcome her trauma”. The nominee also stated that she realised the student needed more assistance to overcome her trauma and referred her to community support agencies. The female student also provided a statement using the same language as the nominee’s case study.
Another statement was from the mother of a male student who was assisted by the nominee in relation to his school not understanding the importance to the Sikh religion of keeping a beard and a case note about a male student she assisted by speaking with his parents so he could change from studying an MBA to competing certificate and diploma courses in Automotive Technology.
A statement was also provided from the CEO of Duke College, Parramatta which states that the nominee provides ongoing support to students in relation to their study and career aspects. The CEO also states that the nominee is the first point of contact for students for counselling and the nominee then works with the college to find workable solutions for their issues. Also provided was a statement from the Marketing Manager for Group Colleges Australia who states that other staff at the applicant undertake the admissions process while the nominee looks after the ongoing issues of the students who study at the college. The Marketing Manager then lists the assistance the nominee provides to students and how she works with the college.
There are also statements from colleagues of the nominee including from the admission officer for the applicant in which she provides a list of the duties she performs as an admissions officer and from the applicant’s accountant confirming the duties of the nominee.
Post Hearing Submission
The additional submission dated 2 December 2021 and provided to the Tribunal after the hearing included information (the additional submission) as to whether or not the applicant’s position was covered by a Fair Work Award. It was submitted that the applicant had been advised by labour and employment lawyers, Crawford de Carne, Lawyers that more likely than not the relevant Award was the Clerks – Private Sector Award, Level 3 which was relevant to the nominated position. On receiving this advice, the applicant increased the nominee’s salary from 6 July 2021 and provided backpay from 6 July 2018. The nominee’s new annual salary is $49,400 plus the superannuation guarantee.
Also provided with the additional submission was a market salary report which included a salary guide from Payscale, an industry guide which carries out remuneration surveys generated across the relevant industry. The average base salary range for a Student Counsellor is $45,000 to $89,000 per annum with the median being $66,566 per annum. The market salary report goes on to state that the location of a position can affect the overall salary received by Student Counsellors and that the there is a 0% difference in relation to positions located in Sydney. Unfortunately, the advertisements included in the market salary report are not complete, so the full job description was not available for the Tribunal to assess how comparable each advertised job is with the position associated with the nominated occupation.
The market report contained a number job advertisements for the nominated occupation and similar roles. It submitted that the advertisements that were included indicated that the minimum salary offered was $50,000 and the highest was $80,000.
Consideration of evidence and submissions
The applicant’s submission provided to the Tribunal prior to hearing (the first submission) submits that:
…the ANZSCO unit group descriptive standard language is not specific to a particular occupation within the unit group and does not attempt to describe common tasks that are required or expected of all occupations within the unit group Indeed, all occupations within the unit group list the same unit group description despite the tasks, especially in case of the nominated occupation under review, having very different tasks and duties.
The Tribunal agrees that not all tasks listed for a unit group are relevant to specific occupations at the occupation group level. The focus of the tasks for nominated occupation of Student Counsellor is more on the counselling aspects of the tasks rather than the educational support, student support or administrative tasks because as quoted above it is an occupation that: “provides information and assistance to students, parents and teachers about a wide range of matters such as students' personal problems, learning difficulties and special requirements”.
This is consistent with the overall description in ANZSCO [emphasis added] of the unit group Counsellor, also quoted above, particularly when providing assistance to a student for ‘personal problems’ which include in the task as providing: “…information on vocational, relationship, social and educational difficulties and issues, and work with people to help them to identify and define their emotional issues through therapies such as cognitive behaviour therapy, interpersonal therapy and other talking therapies.
The business nomination application filed with the Department on 21 August 2017 the qualifications for the position are stated to be ‘Bachelors Degree’ and the relevant experience as past experience in similar position. The additional submission attached a market salary report which under the heading Qualifications and Skills references the ANZSCO’s indicative skills level for the nominated occupation by stating:
In order to be considered for the nominated Student Counsellor position, the following qualifications and skills are necessary:
·A level of skill commensurate with a bachelor’s degree or higher qualification
·In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1)
Again, under the heading Skills, Qualification and Experience and subheading Skills the market report repeats the above reference to the ANZSCO’s indicative skills level for the nominated occupation.
The ideal candidate must hold a level of skill commensurate with a bachelor’s degree or higher qualification. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
Under the subheading, Qualifications the market report states:
The suitable nominee will have the following qualifications to be considered viable for the job responsibilities
·A bachelor’s degree or higher qualification.
Under the subheading, Experience the market report states:
In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
In the additional submission provided to the Tribunal after the hearing (the additional submission) it was submitted that: “… that given the specific tasks of the nominated position, it would be neither appropriate or beneficial to the nominator for the position to require a degree in psychology, especially since no psychology diagnosis or treatment is undertaken or attempted as part of the nominated position.” The submission does not comment on other bachelor’s degrees such as counselling. The Tribunal accepts that a bachelor’s degree or higher qualification would not be necessary for the more administrative tasks. The Tribunal does not accept that a bachelor’s degree or higher qualification is not appropriate or beneficial for the nominated occupation of Student Counsellor as the tasks, as set out in ANZSCO, are more aligned with the counselling aspects of the tasks and the students who use the services addressed by the tasks are more likely to be vulnerable and in need of specialist support which includes working with the student to help identify and define their emotional issues through therapies. Therefore, the Tribunal is satisfied that a skill level commensurate with a bachelor’s degree or higher qualification in counselling is integral to the nominated occupation of Student Counsellor.
The Tribunal is not satisfied that the position associated with the nominated occupation is actually the nominated occupation of Student Counsellor.
The Tribunal notes that the nominee does not hold a bachelor’s or higher degree related to the nominated occupation of Student Counsellor such as a degree in Counselling or Psychology. Evidence provided by Ms Nandra and the nominee at the hearing was that the nominee and Dr Nandra developed the role and that Dr Nandra trained the nominee. However, there is no evidence on the files that either Dr Nandra or indeed Ms Nandra, have any psychology or counselling qualifications with which to train the nominee in counselling.
A number of the tasks required to be performed in the position associated with the nominated occupation are administrative in nature or more educational or student support and are not tasks that focus on the counselling aspect of the nominated occupation of Student Counsellor. They are not task where students, their parents or their institute is provided information or assistance is on students' personal problems, learning difficulties and special requirements. These more administrative tasks are listed in the position description under the subheading, ‘Other duties as required’ in the position description set out above. Also administrative in nature are some of the tasks listed under the subheading ‘Counselling’ such as: advising students on documentary requirements and assisting in preparing documents in accordance with an institutes’ checklist; maintain up-to-date information about courses and universities; complete and maintain accurate student records, counselling logs, educations histories, career advice and progress; attending meetings and information sessions with partner institutes and maintain healthy relationships with the marketing team; and participating in team meetings. Other tasks listed in the position description relate more to student support than counselling including: providing information about courses and institutes and advising on career decisions; analysing skills and suggesting skill-sets for self-development and career growth; providing students with job seeking tools and information and assisting them in applications. Both Ms Nandra and the nominee confirmed that these were the tasks the nominee performed. Ms Nandra and the nominee stated that plans and action plans were developed for the students, but these were more about providing advice on future careers and job seeking skills which are more administrative than therapeutic or providing assistance with personal problems. On the above the Tribunal is not satisfied that these tasks performed in the position are the tasks of the nominated occupation of Student Counsellor.
The applicant and nominee gave evidence that the nominee provides counselling for students with issues which range from homesickness to gambling and alcohol addiction and family violence which are more aligned with the counselling aspects of the tasks. These issues primarily arise due to the students having to leave their families and home country to study in a new environment and the associated adjustment problems and cultural issues, including language difficulties and discrimination. The Tribunal has taken into account the statements from students as to her providing counselling on these issues, however, the nominee’s role was one of discussing the issues with the student to then refer them to professional counsellors or therapists and to liaise with the educational institute. The Tribunal acknowledges that the liaison of the nominee with the education institute of the Sikh student did assist with is personal problem, but this did not require any counselling skill.
On the above, the Tribunal is not satisfied that that the nominee provides counselling as she is not qualified to help student to identify and define their emotional issues through therapies. In relation to students who suffer from gambling and alcohol addiction and family violence both Ms Nandra and the nominee’s evidence at hearing is that the nominee refers those students to therapists or professionals or community groups.
There is nothing in the position description which indicates that a task of the position associated with the nominated occupation included providing information and assistance on learning difficulties or special requirements related to disabilities. There is some limited evidence that the nominee has provided some assistance with assessing special requirements such as wheelchair and hearing device access and childcare facilities. Although compiling a list of childcare facilities and the very few institutions which do not comply with building code requirements in relation to wheelchair access would be more an administrative task rather than the nominee conducting an assessment which she is not qualified to do. Further, this evidence does not indicate that the nominee or the position will provide information or assistance in relation to learning difficulties which is defined in the Macquarie Dictionary Online as: “a specific or particular deficiency of perception or cognition, as dyslexia”. The in Google Dictionary definition provided by Oxford Languages, the publishers the Oxford English Dictionary, is more detail as follows: “difficulties in acquiring knowledge and skills to the normal level expected of those of the same age, especially because of mental disability or cognitive disorder”.
Another indication that the position is not that of Student Counsellor is that although Ms Nandra and the nominee confirmed that the position is that of Student Counsellor and role has and will primarily stayed the same, the current salary paid by the applicant for the position is not that of a Student Counsellor being $60,000 per annum as submitted by the applicant. Ms Nandra confirmed that if the nominee is granted a Subclass 457 visa extra services would be added once international students returned to the country, but her primary duties would remain the same, and will continue to do so with perhaps some extra services.
In response to the Tribunal’s concern about the amount of the salary currently being paid for the position. It was submitted in the additional submission that the applicant had been advised by labour and employment lawyers, Crawford de Carne, Lawyers that more likely than not the relevant Award was the Clerks – Private Sector Award, Level 3 which was relevant to the nominated position. Further, the nominee’s new annual salary is $49,400 plus the superannuation guarantee. That the applicant submits that the Award that best applies to the position is the Clerks – Private Sector Award supports the Tribunal’s finding that the tasks associated with the position are more clerical in nature than those of the nominated occupation, as well as, the evidence that the applicant only increasing the nominee’s salary to $49,400 instead of $60,000.

On the above, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine.
For these reasons the requirements of reg 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.

Namoi Dougall
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and

(b)a party to a work agreement (other than a Minister);

who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).

(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.

(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.

(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.

(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.

(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and

(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iii) if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and

(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and

(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and

(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iii) if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and

(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).

(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i) the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii) if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii) the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv) unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and

(h)either:
(i) the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or

(ii) the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).

(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;

that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.

(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and

(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and

(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.

(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2022] AATA 1055

17 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice