WEB DESIGN MARKET PTY LTD (Migration)

WEB DESIGN MARKET PTY LTD (Migration) [2018] AATA 4139 (6 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  WEB DESIGN MARKET PTY LTD
CASE NUMBER:  1617688
DIBP REFERENCE(S):  BCC2016/1314053
MEMBER:Warren Stooke AM
DATE:6 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 06 September 2018 at 1:28pm
CATCHWORDS
MIGRATION – Employer nomination – approval of nomination – how nominated business fits in business activity – company’s financial documentation – employment contract – wage above minimum rate – extensive experience – relevant qualifications – training contributions – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 Immigration on 7 October 2016 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).
The applicant applied for approval on 30 March 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the applicant had not provided sufficient evidence to support how the nominated position fits into the business activity and that there was no clear evidence (such as pay slips or PAYG payment summary for the nominee) and thereby did not meet the criteria pertaining to subregulation 5.19(4) and subregulation 5.19(3).
The applicant appeared before the Tribunal on 28 June 2018 and again on 31 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Yuvraj Singh Dilipsingh Rao, who is the applicant's partner and director.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 7 October 2016 and that he understood the content of the decision. The applicant stated that he understood the basis of the decision that there was not enough evidence regarding the position of employment. The applicant was aware of the reasons for the delegate’s refusal of the application.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The applicant gave evidence that the business is a Digital Agency that works with SMF to large organisations where website platforms are developed for the business. In this regard, the business both builds and upgrades the platform infrastructure and the nominee is a key part of the business with specialist skills in digital advertising.
The applicant gave evidence that the business has between 70 and 80 clients from a range of organisations and industries. In this regard, information provided through the company’s financial documentation confirmed submitted to the ATO for 2017 advised a total gross income of $263,728 and a net taxable income of $80,980. Further, as at the 30 June 2017 the business had total assets of $103,479 and total liabilities of $38,930. As such, the Tribunal notes that the business has the financial capacity to support the nominated position given that the nominee is already included in the salary costs for the business.
Further, the representative submitted to the Tribunal:
“Furthermore, it is noted that not all workers appearing on the organisation chart had worked since the beginning of the 2017-2018 financial year, but commenced sometime during it, as is evident from the fact they did not receive remuneration in the 2016-2017 financial year. To therefore obtain a more reliable indicator of annual remuneration to be paid to all the workers, Web Design Market have included a projected remuneration payout for the 2018-2019 financial year in the summary. Total remuneration projected to be paid this financial year is $334,794.87 comprised of $254,794.87 in salary/wages and $90,000 in invoiced subcontractor remuneration, which is based on the current wage/salary payments and invoice payments made to their employees and subcontractors. It is noted this figure does not account for any raise in salaries or subcontractor rates.”
The applicant provided evidence that the organisation has seven positions that are fulfilled by a combination of full-time, part-time and contract personnel and this was noted in the organisational chart for the business. [Tribunal Folio 164]
The application is compliant: r.5.19(4)(a)
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.
On 25 October 2016, the applicant submitted an application on-line for approval of a nominated position designated as Advertising Specialist, which identified the need for the employment of an Advertising Specialist, given that the business did not currently have a person in this position. The application was accompanied by the payment of a fee, as prescribed in r.5.37.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. The applicant provided the Tribunal with evidence that Web Design Market Pty Ltd is a registered business with an ACN 600 571 499 and was registered on 7 July 2014. Further, an ASIC registration certificate [Tribunal Folio 6] confirms registration from 7 July 2014 with a review scheduled for 7 July 2017, which was provided to the Tribunal.
The Tribunal is not aware of any information, at the time of decision, which would indicate that the nominator is not actively and lawfully operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The Tribunal is satisfied that all the employees engaged in the business are direct employees with employment contracts with Web Design Market Pty Ltd or have been subcontracted to work in the organisation. As such, the Tribunal is satisfied that the business in not operating in the labour hire industry.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant gave evidence that the nominee was subject to a contract of employment that would be in place for a period exceeding 2 years, with the current employment contract that commences on the date of approval of the visa on a salary of $68,000 plus 9.5 % Superannuation, being rolled over for an indefinite period post the approval of the nominated position. [Tribunal Folio 168]
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The applicant in the written submissions prior to the hearing provided the Tribunal with the following document, which confirmed that award and statutory obligations under the provisions of the Fair Work Act 2009 are being complied with:
·A copy of the employment contract;
Further, the applicant gave evidence that superannuation payments are contributed into Super Choice Pty Ltd in accordance with Superannuation Guarantee.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
The Tribunal has reviewed the Department’s records, including its electronic records as contained in its Integrated Client Services Environment (ICSE) and is satisfied that they do not disclose any adverse information known to the Tribunal about the nominator or person associated with the nominator.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant 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.
The applicant gave evidence that at the time of engagement the nominee was provided with a Fair Work Information Statement as required under the provisions of the Fair Work Act 2009. [Tribunal Folio 332-333]
The nominee is paid a wage that exceeds the minimum rate of pay provided under the award and a base salary of $68,000 per annum is paid to the nominee, exclusive of superannuation as per the obligation of the contract of employment (Tribunal Folio 168). The Tribunal, following a review of the submitted material, which was provided prior to the hearing, has verified the remuneration paid to the nominee, including superannuation contributions.
The applicant gave evidence that the nominee has been granted 4 weeks annual leave in accordance with the Fair Work Act 2009.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·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 15/092), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The applicant provided evidence that IMMI 15/092 included the position of Advertising Specialist - ANZSCO 225111 where the tasks performed was advised as follows:
“UNIT GROUP 2251 ADVERTISING AND MARKETING PROFESSIONALS
ADVERTISING AND MARKETING PROFESSIONALS develop and coordinate advertising strategies and campaigns, determine the market for new goods and services, and identify and develop market opportunities for new and existing goods and services.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal 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).

Tasks Include:
oplanning, developing and organising advertising policies and campaigns to support sales objectives
oadvising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services
ocoordinating production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints
oanalysing data regarding consumer patterns and preferences
ointerpreting and predicting current and future consumer trends
oresearching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information
osupporting business growth and development through the preparation and execution of marketing objectives, policies and programs
ocommissioning and undertaking market research to identify market opportunities for new and existing goods and services
oadvising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels
Occupations: 225111 Advertising Specialist

225111 ADVERTISING SPECIALIST

Alternative Titles:
Advertising Account Executive
Advertising Account Manager
Creative Director (Advertising)

Devises and coordinates advertising campaigns which encourage consumers to purchase particular goods or services.
Skill Level: 1”
Further, the representative for the applicant submitted the following in relation to the genuineness of the position:
“As noted in our submission dated 21 June 2018, a large proportion of the revenue received by the company is from the services provided by the Advertising Specialist. The services provided by the Advertising Specialist is therefore not simply a luxury that can only be justified when the company has scaled to a big enough size, but rather a necessity in order to service its clients and attain revenue to survive whether the company is large or small. The need for an Advertising Specialist was evident in 2014 when the company was small and only beginning and is clearly still needed now in order for the company to continually operate and expand in 2018 beyond 7 workers. Without the required Advertising Specialist the company is no longer able to provide the digital advertising services and advice to its customers and hence earn the revenue attributed to such services.”
The applicant, in submissions, provided the following advice concerning the Advertising Specialist position:
“We find that the tasks of the nominated role align with the tasks on the ANZSCO occupation description for the nominated role [sic ANZSCO 225111]. Some of the relevant tasks performed by Mr Ritikos in his role, is highlighted below:
·In the role of Advertising Specialist, Mr Ritikos has taken the lead in promoting Web Design Market's own products, and their client's products, using Social Media Platforms and Online Search Engines, to advertise products. These platforms are powerful communications tools: which WMD believes makes for successful campaigns that will support sales objectives.
Mr Ritikos found that web media presents great marketing opportunities to promote their business and his clients' businesses/brands by informing customers of goods and services and attracting new business. Through his analysis as the Advertising Specialist, Mr Ritikos concluded that it was evident that the majority of WDM sales came from these customers therefore Mr Ritikos's medium/long term goal is to attract new customers through advertising on the Internet and referral from previous clientele as an Advertising Specialist.
By identifying the target market for Keeki, a retail furniture client, Mr Ritikos has demonstrated an ability to better inform clients, as the Advertising Specialist, on suitable methods, media and campaigns for their goods and/or services
·    Web Design Market was approached by Ms Fiona Patten MLC to formulate a proposal to produce her website, upon receipt of her project brief, a proposal was produced by Mr Ritikos, it included a list of services to be performed and products. Mr Ritikos provided further input into the products and visual aesthetics of the site. As digital Advertising Specialist, Mr Ritikos would be expected to perform these duties in future production analysis and collection tasks as the Advertising Specialist and has produced reports on the efficacy of advertising campaigns and marketing strategies devised by WDM using tools such as Google Analytics, SEM Rush, Google Webmaster Tools, BuzzSumo
·    Mr Ritikos identified a demand for supporting individuals and companies to engage in online advertising and as a result has developed a company website ( and implemented social media advertising. This was conceived and fine-tuned as Mr Ritikos and Mr Rao Identified a market for services and products they were able to supply based on; research conducted, data collected, and the statistical information Mr Ritikos was able to gather in researching thee-commerce marketplace. The Advertising Specialist would be tasked with the continuation of the research and data capture process to support senior management and inform future strategic planning based upon the information/data provided.
·    Mr Ritikos also conducts reviews of competitors websites by comparing products and services being offered. The Advertising Specialist would be expected to perform this function using such platforms as IBISworld and targeted internet searches. Such research is costly in terms of time and effort, while remaining vitally necessary to gain an appreciation of the marketplace, business outlook, emerging technology, and consumer trends.
·    Web Market Design's recent advertising and sales promotions through online campaigns has demonstrated that the Advertising Specialist must possess the necessary skills and knowledge to promote the business, manage internal and external advertising campaigns designed to increase revenue, and further develop the business through its products and services, promoting the WDM brand. Our brochure for Digital Marketing Services was developed by Mr Ritikos, utilizing Advertising Specialist skills, combined with proprietary knowledge, which would not be possessed by an external individual coming into WDM freshly.
Mr Ritikos is well qualified and experienced within this area, and has developed the advertising processes necessary to the ongoing success of WDM, in this regards; he is identified to be the most suitable candidate for the position of Advertising Specialist. Were another individual to be chosen in the role of Advertising Specialist, the proprietary knowledge possessed by Mr Ritikos would be lost; this could lead to financial hardship for WDM, and hinder the continued growth of the company in the short to medium term.”

In addition, the applicant gave evidence that the available position required a qualified person in Digital Marketing at the degree level and preferably experience with technical skills in the industry, which the nominee possesses. In this regard, the Tribunal was advised that the nominee had worked for the organisation since 2014, had a degree in Communication and Advertising from RMIT, and had worked in Australia for 10 to 11 years.
In terms of market testing, the applicant gave evidence that as part of the start-up group and given that one of the shareholders of the company was the nominee, the position was not advertised. In this regard, the Tribunal notes that the position demands unique skills that are held by the nominee.
In terms of training the applicant provided evidence of contributions to the Sydney Institute TAFE, which totalled in the aggregate a contribution of $10,016.57.[Tribunal Folio 11-14]
Accordingly the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Warren Stooke AM
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).

[2018] AATA 4139

6 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies