Wallan Auto Body & Towing Pty Ltd (Migration)

[2024] AATA 644

Wallan Auto Body & Towing Pty Ltd (Migration) [2024] AATA 644 (19 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Wallan Auto Body & Towing Pty Ltd

REPRESENTATIVE:  Mr Min Hu (MARN: 0215827)

CASE NUMBER:  2113116

HOME AFFAIRS REFERENCE(S):          BCC2021/1703381

MEMBER:Amanda Mendes Da Costa

DATE:19 March 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 19 March 2024 at 1.13pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – short-term stream – marketing specialist – genuine position – tasks of position – car repair and towing service – liaison with insurance companies and members of community, and social media – proposed tasks commensurate with ANZSCO description – actual tasks not commensurate – financial loss for two years – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA(3)(aa)
Migration Regulations 1994 (Cth), rr 2.72(10)(a), 2.73

CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 September 2021 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).

2. The applicant applied for approval on 1 September 2021. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific 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. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy s 140GBA(3)(aa) of the Act because the applicant had not undertaken the required labour market testing.

4. The applicant was represented in relation to the review, with its representative also participating in the hearing.

5. Via an internet-enabled audio-visual platform, Mr Zane Ibrahim appeared (on behalf of the applicant) before the Tribunal on 12 February 2024 to give evidence and present arguments.

6. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that Mr Ibrahim, the representative, and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

7. At the commencement of the Tribunal hearing, the Tribunal explained to Mr Ibrahim the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed Mr Ibrahim that it would seek submissions from both him and the applicant’s representative toward the end of the Tribunal hearing on any matter they considered relevant to the review.

8. The documentation provided to the Tribunal for the purpose of the review includes the following:

   ·Notification of approval as a standard business sponsor.

   ·Career One job advertisement.

   ·Financial statements for the financial years 2021 and 2022.

   ·Business activity statements for 2022.

   ·ABN current details.

   ·ASIC extract.

   ·Invoices from INDEED website.

   ·Advertisements posted on the JobActive website.

   ·Employment contract dated 25 October 2023.

   ·Two pages of a Fixed Cost Repair Agreement dated 25 October 2023 with letter from applicant dated 23 February 2024.

   ·Australian Taxation Office (ATO) Notices of assessment (for the nominee) for the years ended 30 June 2020, 30 June 2021, and 30 June 2022.

   ·Tax Invoice/Receipt for payment of nomination training contribution charge.

9. The Tribunal also notes that the applicant provided a copy of the delegate’s decision with the review application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 work 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. In addition, the labour market testing requirements in s 140GBA must be met.

    Position must be genuine and full-time

12. Regulation 2.72(10)(a) requires that the position associated with the nominated occupation is genuine. A similar requirement 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. In addition, reg 2.72(10)(b) requires the position to be a full-time position, unless it is reasonable to disregard this requirement.

13. The applicant owns and operates a business located in Wallan, Victoria which provides automotive body repairs and towing services. The applicant company (which was registered in May 2022) purchased the business that year. Although the company has three directors, only one of them (Mr Ibrahim) is directly involved in the day-to-day management of the business and is the majority shareholder in the company. The business has been operating for approximately 15 years when it was purchased by the applicant. It is well known in the local area and is the largest business of its kind in Wallan.

14. Mr Ibrahim told the Tribunal that in addition to his role as Manager, the business employs  a Spray Painter, Panel Beater, Assembler, and a Marketing Specialist (the nominee). The Tribunal notes that this evidence is largely consistent with the information contained in the organizational chart provided.

15. In addition to its individual clients the applicant has entered into agreements with three Australian insurance companies to provide automotive body work and spray painting on vehicles insured by the insurers. Mr Ibrahim explained that most motor vehicle insurers require their clients to use the insurers in-house automotive repair centre, or a repair business approved by the insurance company. Mr Ibrahim explained that the business’s agreements with the insurers has resulted in in a significant increase in the turnover of the business in the past two financial years. He said that the nominee (who has been employed by the applicant as a Marketing Specialist since August 2021) was instrumental in securing the agreement with the larger of the insurance companies, which provides the most amount of income of the three insurance companies. He estimated that this insurer has provided between $700,000 to $800,000 in income for the business.

16. Mr Ibrahim told the Tribunal that in addition to securing the agreement with the insurer, the nominee is responsible for liaising with the insurer on a regular basis and addressing any concerns held or complaints made by insured clients about the work completed by the business.

17. Mr Ibrahim explained that the nominee’s responsibilities also include maintaining the business’s social media presence and in liaising with members of the local community to promote the activities of the business. The Tribunal note that the business does not have a website and relies on posts made on Facebook. Mr Ibrahim confirmed that whilst the business previously had a website it “crashed” and has not been replaced. The business currently posts entries on Facebook and Instagram. The Tribunal noted that the Facebook entries which predominantly consist of photographs of vehicles various vehicles after the completion of automotive and spray-painting work by the applicant’s employees.  Mr Ibrahim agreed with his description and said that the nominee is also responsible for regularly sending mass SMS messaging to customers every couple of months and engaging with the local community through his attendance at sports and social groups. Mr Ibrahim explained that the business has ceased advertising in local newspapers because it had found that ‘giveaways’ to regular customers was more effective in generating business.

18. The Tribunal discussed the financial documentation provided which show that the business made a loss in both the 2021 and 2022 financial years[1] and the reason for the business employing a Marketing Specialist in such circumstances. In response, Mr Ibrahim explained that he decided to employ a Marketing Specialist because the business was not growing, and the nominee had contacts with several insurance companies which could be used to generate more business for the applicant. He said that it was necessary to spend money to achieve a “good outcome.”

    [1] The financial statements show that the business made a loss of $150,593 in the 2021 financial year and a loss of  $161,669 in the 2022 financial year.

19. At the conclusion of the hearing the Tribunal invited the applicant to provide it with further documentation including PAYG payments statements for the nominee, an updated employment contract, a receipt for the applicant’s training fund contribution and examples of the nominee’s social media postings for the business. The Tribunal notes that following the hearing the applicant provided the contract of employment, receipt for training contribution charge, Two pages of a Fixed Cost Agreement, ATO Notices of Assessment and letter dated 23.2.24.

20. In its letter dated 23 February 2024 the applicant states that it has provided the first and last pages of the Fixed Cost Agreement with a major insurer which was signed after the nominee commenced his employment with the business. The applicant further explains that due to a confidentiality agreement between the parties, the applicant is unable to provide the Tribunal with the complete document. The Tribunal notes that the pages provided consist of the cover page and a page on which the parties have signed and dated the agreement[2].

    [2] The agreement was signed by the insurer on 7 October 2023 and by Mr Ibrahim on behalf of the applicant on 19 October 2023.

21. The Tribunal further notes that the post-hearing documentation does not include any examples of the nominee’s posts on the applicant’s social media sites and although the Fixed Cost Agreement indicates a vehicle repair agreement between the applicant and an e insurance company, the applicant has not provided any material which support’s Mr Ibrahim’s claim that the nominee’s responsibilities include maintaining an ongoing business relationship between the applicant and the insurer.  Whilst the Tribunal accepts that some aspects of the relationship between the applicant and insurer are confidential (particular the financial aspects of the Fixed Cost Agreement), the pages from the agreement which have been provided make no reference to the nominee’s part (if any) in securing the agreement. Furthermore, the Tribunal considers that if the nominee was responsible for maintaining an ongoing relationship as claimed, there would be emails and correspondence between the nominee and the insurer addressing issues with client’s repairs, quotations, and payments.

22. The Tribunal further notes that whilst the applicant has provided ATO Notices of Assessment for the nominee, which indicate his salary during the financial years 2020, 2021 and 2022, it has not provided any PAYG statements which would show the applicant’s salary payments for those years.    

23. The Tribunal notes that the ANZSCO dictionary describes the role of a Marketing Specialist as identifying market opportunities and advising on the development coordination and implementation of plans for pricing and promoting an organization’s goods and services. The occupation is part of Unit Group 2251 – Advertising and Marketing Professionals. The tasks of a Marketing Specialist include:

    ·Planning, developing, and organizing advertising policies and campaigns to support sales objectives.

    ·Advertising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services.

    ·Co-ordinating production of advertising campaigns involving specialized activities, such as artwork, copywriting, and media scripting, television and film production and media placement within time and budget constraints.

    ·Analysing data regarding consumer patterns and preferences.

    ·Interpreting and predicting current and future consumer trends.

    ·Researching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information.

    ·Supporting business growth and development through the preparation and execution of marketing objectives, policies, and programs.

    ·Commissioning and undertaking market research to identify market opportunities for new and existing goods and services.

    ·Advising on all aspects off marketing such as product mix, pricing, advertising and sales, promotion, selling and distribution channels.

24. The Tribunal notes that the statement of responsibilities provided indicates that the nominee’s proposed tasks as a Marketing Specialist for the business are substantially commensurate with the tasks set out in the ANZSCO dictionary.

25. However, the Tribunal does not consider that the evidence of Mr Ibrahim regarding the nominee’s receptibilities indicates that they involve the level of planning, analysis, research and interpretation of data, policies and programs which is indicated in the ANZSCO dictionary for a Marketing Specialist.

26. Accordingly, the Tribunal is not satisfied that the nominee is currently undertaking the tasks or is proposed to undertake the tasks contemplated in the ANZSCO dictionary for a Marketing Specialist. Nor does the Tribunal consider that the size, staffing arrangements and nature of the business warrant the employment of  the nominated occupation.

27. Based on the above findings, the Tribunal is not satisfied that the position associated with the nominated occupation is not genuine.

28. For these reasons the requirements of reg 2.72(10)(a) are not met and therefore reg 2.72(10) is not met.

29. As one of the criteria in reg 2.72 is not met, the Tribunal does not consider it necessary to consider the remaining criteria.

30. 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

31. The Tribunal affirms the decision not to approve the nomination.

    Amanda Mendes Da Costa
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

    (1)This regulation applies in relation to a person who:

    (a)is any of the following:

    (i)       a standard business sponsor;

    (ii)      a person who has applied to be a standard business sponsor;

    (iii)     …

    (iv)    …

    (b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

    (i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

    (ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;

    (iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

    (2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

    Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

    (3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

    (4)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.

    (5)The Minister is satisfied that:

    (a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or

    (b)…

    (5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

    (6)If the nominee holds:

    (a)a Subclass 457 (Temporary Work (Skilled)) visa; or

    (b)a Subclass 482 (Temporary Skill Shortage) visa;

    the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

    (7)However, the Minister may disregard the fact that one 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.

    (8)The Minister is satisfied that:

    (a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

    (i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or

    (ii)      …; and

    (b)the occupation applies to the nominee in accordance with the instrument or work agreement.

    (9)The Minister may, by legislative instrument, specify occupations and, for each occupation:

    (a)whether the occupation is:

    (i)       a short term skilled occupation; or

    (ii)      a medium and long term strategic skills occupation; and

    (b)either:

    (i)       the 6-digit ANZSCO code for the occupation; or

    (ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and

    (c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and

    (d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

    (i)       the person who nominated the occupation;

    (ii)      the nominee;

    (iii)     the occupation;

    (iv)    the position in which the nominee is to work;

    (v)     the circumstances in which the occupation is undertaken;

    (vi)    the circumstances in which the nominee is to be employed in the position.

    (10)The Minister is satisfied that the position associated with the occupation is:

    (a)genuine; and

    (b)a full-time position.

    (10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (11)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is not an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

    (e)the person will give the Minister a copy of the contract signed by the employer and the nominee.

    (12)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person; and

    (e)the person will give the Minister a copy of the contract signed by the person and the nominee.

    (13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

    (14)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

    (c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

    the person has provided evidence to the Minister that the nominee satisfies:

    (d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

    (e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

    (15)Subject to subregulation (16), if:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

    the Minister is satisfied that:

    (c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

    (d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

    (e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

    (f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

    (g)either:

    (i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

    (ii)      it is reasonable to disregard any such information.

    (16)However:

    (a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

    (i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

    (ii)      it is reasonable in the circumstances to do so; and

    (aa)the Minister may disregard the criterion in paragraph (15)(e) if:

    (i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

    (ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and

    (b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

    (18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

    (a)either:

    (i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

    (ii)      it is reasonable to disregard any such information; and

    (b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.

    (19)…