1411777 (Migration) [2015] AATA 3444 (30 September 2015)

Last Updated: 16 October 2015

1411777 (Migration) [2015] AATA 3444 (30 September 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Liso Australia Pty Ltd ATF Liso Australia Unit Trust

CASE NUMBER: 1411777

DIBP REFERENCE(S): BCC2014/993529

MEMBER: Adrian Ho

DATE: 30 September 2015

PLACE OF DECISION: Melbourne

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

Statement made on 30 September 2015 at 1:09pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by vpa delegate of the Minister for Immigration on 19 June 2014 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
2. The applicant applied for approval on 15 April 2014. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.
3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f).
4. The director of the applicant company, Ms Shirley Song, (the director) appeared before the Tribunal on 29 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, who was present throughout the hearing. The applicant spoke at times in English and spoke at times before the interpreter rendered English into Mandarin. The tribunal had no difficulty understanding the director when she spoke in English.
5. The applicant was represented in relation to the review by its registered migration agent.
6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).

Position must be genuine

8. Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
9. The parties were informed that a deliberation of this requirement requires a consideration of the need for the position in the business, and a comparison of the tasks and nature of the position and the tasks and nature of the occupation indicated by ANZSCO.
10. At hearing, the tribunal pointed out to the parties that as the nominator was required to certify that the tasks of the position contain a significant majority of the tasks of the nominated occupation indicated by ANZSCO, the indicated tasks given by ANZSCO were of critical relevance in deciding if the position was genuine.
11. It was also suggested that, if the nomination is approved and the visa granted, the sponsoring business had to be in a position to meet its obligation to ensure that the nominee does not work in any other occupation other than the occupation that was nominated, as required by r.2.86(2)(a).
12. It was suggested to the parties that within the context of the Subclass 457 visa and nomination scheme, in deciding the genuineness requirement, the tribunal had to decide if the position is a genuine reflection of the nominated occupation of Sales and Marketing Manager (SMM) as contemplated by ANZSCO such that it included a significant majority of the ANZSCO-indicated tasks, and such that if the nominee were to commence in the position the nominee would not be working in an occupation other than the occupation that was nominated.
13. The ANZSCO entry^[1] for the nominated occupation is as follows:

UNIT GROUP 1311 ADVERTISING AND SALES MANAGERS

ADVERTISING AND SALES MANAGERS plan, organise, direct, control and coordinate advertising, public relations, sales and marketing activities within organisations.

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:

• formulating and implementing policies and plans for advertising, public relations, sales and marketing in consultation with other Managers
• directing the development of initiatives for new products, marketing and advertising campaigns
• organising and controlling sales activities by setting product mix, geographical sales areas and customer service standards
• directing merchandising methods and distribution policy by coordinating the work of salespersons, and organising agents and distributors
• directing sales methods and arrangements by setting prices and credit arrangements

Occupations:

131111 Advertising and Public Relations Manager
131112 Sales and Marketing Manager

131111 ADVERTISING AND PUBLIC RELATIONS MANAGER

Plans, organises, directs, controls and coordinates the advertising and public relations activities within an organisation.

Skill Level: 1

Specialisations:

Community Relations Manager
Corporate Relations Manager
Public Affairs Manager
Relationship Manager

131112 SALES AND MARKETING MANAGER

Plans, organises, directs, controls and coordinates the sales and marketing activities within an organisation.

ICT Business Development Managers are excluded from this occupation. ICT Business Development Managers are included in Unit Group 2252 ICT Sales Professionals, in Occupation 225212 ICT Business Development Manager.

Skill Level: 1

Specialisations:

Business Development Manager
Market Research Manager

Business viability

14. The tribunal has serious concerns as to the viability of the applicant’s business.
15. The director of the applicant described at hearing how the business has not been doing well in the past three years. In the tax year ended 30 June 2015 she estimated that full year turnover was around $150000, cost of goods $70000-80000, rent $50000, wages to her part time administration staff member $14000.
16. She conceded that the business was just breaking even and made no profit.
17. She confirmed that the only liquid asset the business has is $20000-30000 cash at bank.
18. She and her husband have already taken a personal loan of $220000, for their two businesses, and the loan monies have been exhausted. Over six years she has accumulated stock in her warehouse she claims is worth $300000, which she has found difficult to sell. She described much of this stock as ‘slow moving’ stock, or stock which was ordered and became unpopular with the retail stores which are her clients, or else were priced too high to compete with stock from other wholesalers.
19. She conceded at hearing that the business could not pay the annual wage of $65000 that she proposed for the nominee, without a cash injection into the business from outside.
20. She mentioned that there was a potential investor, who might be willing to make a $1 million investment in the business. She conceded that prospect was speculative.
21. She felt confident that between her and her husband, they would find the money to pay the wage of the nominee.
22. She implied that when the old stock in the warehouse was discounted, it would sell and she would derive funds from those proceeds.
23. She said if she could not hire an SMM, the business could not grow its turnover from the low point it has reached, and she would fold the business in that case.
24. She had no meaningful response to the proposition that what she sought to do by taking on an additional wage bill of $65000 a year was to send the business into a loss-making position in the hope that an SMM could turn the business around and make it profitable.
25. She agreed with the proposition that an SMM would have to increase sales by around $130000 in order to cover the SMM’s own wage of $65000 (since her mark-up on sale was around and average of 100%). If the SMM does not increase turnover by around $130000, the business will remain in a loss-making position.
26. As suggested at hearing, the tribunal has serious concerns that approval of the nomination in question will result in the business going ‘into the red’ and to a significant loss-making position. It is of concern that presently there is no concrete plan of how to fund the position.

Genuine reflection of the ANZSCO-indicated occupation

27. A discussion took place at hearing where the tribunal explored with the applicant’s director the future direction of the company and what she wanted the proposed SMM to do in the business.
28. During that discussion she mentioned activities for the business into the future: driving out to “$2 shops”, including in regional areas, and introducing them to the company’s products; dealing with suppliers in China and obtaining the best price and quality; finding a way to deliver goods to diverse locations around Australia for large customers such as FoodWorks.
29. The tribunal pointed out that these tasks appeared to be the tasks of a sales worker, a procurement clerk, and a logistic clerk, respectively, and not any ANZSCO-indicated task of an SMM. The ANZSCO-indicated tasks of an SMM were read out for the director.
30. The director and the migration agent then insisted that these tasks could be done by the director herself, and the SMM nominee would only perform the tasks as stated in the position description (f.38).
31. The director confirmed she had both English and Mandarin copies of the position description in front of her at hearing.
32. She was asked a number of times to explain the 8 specific duties listed at the bottom of the position description and how they would actually be carried out and discharged in the context of her business. Those duties are written in broad and general language and on their face lend no colour to what the proposed SMM would be doing on a daily, weekly or montly basis.
33. Despite being invited numerous times to explain in her own words the tasks in the position description of the proposed SMM in her own company, she said her educational level was not high and she was unable to explain what the discharge of these tasks would actually look like in her own business.
34. She conceded that the position description was drafted by someone else, a person she says understood the needs of her business.
35. It is remarkable that the director of a business is unable to offer any articulation for the written tasks of the only full time employee the company seeks to employ and for a position which the director insists is essential to the growth of the business.
36. At hearing the director said she would simply ask the incumbent to produce a plan to turn the business around and that if the incumbent was suitably qualified the incumbent would be able to interpret the position description without any clarification from the director.
37. As suggested to the parties at hearing, the tribunal has serious reservations as to the content of the tasks of the position in question. As pointed out to the parties, the tribunal finds that the business is in the need of the functions described above of a sales worker, a procurement clerk, and a logistic clerk. The tribunal can appreciate that the business wishes to approach new customers running retail stores, why it wishes to procure quality stock from China at good prices, and why it needs to arrange delivery of goods to customers located around Australia.
38. The tribunal, however, was not assisted at hearing, and finds little assistance in written material, to be able to appreciate how the tasks and duties laid out in the position description will be discharged by the incumbent in the context of the business. As a consequence, the tribunal also has difficulty understanding how a discharge of the tasks laid out in the position description contribute to the achieving of the aspirations set out in the Preliminary Business Development Plan document (f.36).
39. For the reasons above, the tribunal considers that the director intends for the nominee to carry out the tasks that the director was able to articulate at hearing, which the tribunal finds are associated with occupations similar to a sales worker, a procurement clerk, and a logistic clerk, and are not related to the ANZSCO-indicated tasks of an SMM. The tribunal is not satisfied that the tasks of the position include a significant majority of the tasks as laid out in the position description, which the director was unable to speak to, or of the ANZSCO-indicated tasks of an SMM.

Conclusion

40. The tribunal has abiding concerns regarding the liquidity and cash flow of the business. Hiring an employee in circumstances where the business does not presently have a concrete plan to fund the employee’s wages is a risky commercial proposition. The director’s plans to have cash injected into the business are speculative. The tribunal is not satisfied that the applicant company will be able to maintain the position in either the short or longer term. As suggested to the parties, the company is essentially offering a position which, presently, it cannot fund. In this sense, the position associated with the nominated occupation is not genuine.
41. In addition, and as pointed out at hearing, separately, the tribunal considers that the tasks of the position include a significant majority of the tasks as laid out in the position description, which the director was unable to speak to, or of the ANZSCO-indicated tasks of an SMM.
42. As such, the tribunal does not accept as accurate the certification required for approval of the nomination: that the tasks of the position include a significant majority of the tasks of the occupation indicated by ANZSCO.
43. If the nomination were approved and the visa granted, the tribunal finds that the applicant company would be in breach of its obligation to ensure that the nominee does not work in any other occupation other than the occupation that was nominated, as required by r.2.86(2)(a).
44. In this additional sense, the position associated with the nominated occupation is not genuine.
45. For these reasons the requirements of r.2.72(10)(f) are not met.
46. The representative noted that nominations for the same occupation have both been approved and refused by the Department; showing inconsistent decision-making. The tribunal observed to the parties that its decision would thus be consistent with one decision of the Department, and inconsistent with the other, regardless of how the tribunal decided the matter. The tribunal suggested that it would consider the evidence afresh and come to its own view as to whether the requirements were met, and this is what the tribunal has done.
47. For the reasons given above, the Tribunal is not satisfied that the applicant meets the all applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

DECISION

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

Adrian Ho
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) a standard business sponsor; or

(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 6digit 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.

(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.

Note The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).

(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

(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 that:

(i) are provided; or

(ii) 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.

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^[1] http://www.abs.gov.au/ausstats/abs@.nsf/Product+Lookup/E5E4574F23C63F8FCA2571E200835410?opendocument