1409592 (Migration)

[2015] AATA 3305

1409592 (Migration) [2015] AATA 3305 (20 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Form Contemporary Craft and Design Inc

CASE NUMBER:  1409592

DIBP REFERENCE(S):  BCC2014/239273

MEMBER:Christopher Smolicz

DATE:20 August 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 20 August 2015 at 11:39am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 May 2014 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 24 January 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations. In a separate decision, the delegate also refused the related subclass 187 visa application lodged by Ms Elizabeth Davis (the visa applicant).

5. On 20 April 2015 the Tribunal conducted a combined hearing with the related MRT file reference 1411368.

6. Ms Rebecca Eggleston, General Manager of Form Contemporary Craft and Design Inc (FORM) gave evidence on behalf of the applicant. The Tribunal also received evidence from the visa applicant. The applicant was represented in relation to the review by its registered migration agent.

7. 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

8. By way of background FORM is a not-for-profit organisation which was established in 1968 and is based in Perth, Western Australia. FORM works through diverse programs including artistic development and presentation, research, cultural and community engagement, indigenous creative development and cultural infrastructure development. Recent examples of FORMS work include:

   ·     Major cultural infrastructure projects such as Perth’s airport, Perth Major Stadium, Perth City Link and Elizabeth Quay

   ·     Pubic Art projects relevant to the development of the Pilbara mining regions carried out in partnership with BHP Billiton and local government authorities

   ·     Significant developments such as the Old Treasury Building development with 5 major public are works, Crown Towers Perth with over 2,500 works to be commissioned

   ·     Land.Mark.Art program workshops to support the creation of site-specific artworks.

9. The visa applicant is a citizen of the United States of America. She first arrived in Australia in December 2012 on a working holiday visa. Her educational qualifications include a Bachelor Degree in Science, Business Technology (Architectural Design) and Master Degree in Architecture.

10. In October 2013 the visa applicant commenced full time employment with FORM working in the position of Project Manager. She has responsibility for the management, administration and procurement of public art projects throughout Perth and in the Pilbara. Activities include identifying artwork opportunities within an architectural scheme, liaising between the architect, artist, client and builder, management of artwork production and install, and in-house management of four-person public art team.

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

12. 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 must identify a need for the nominator to employ a paid employee to work in the position under their direct control.

13. The Tribunal finds that the application was lodged electronically using the e-lodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2). The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Arts Administrator or Manager (ANZSCO 139911) under direct control of the applicant. 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)

14. The Tribunal has had regard to the following business records provided in support of the application and is satisfied that the applicant is actively, lawfully and directly operating a business in Australia:

    ·     Certificates of ABN and business registration

    ·     Financial reports, including profit and loss statement and balance sheet, for the two most recent financial years

    ·     Business activity statements (BAS) lodged with the ATO for the last 12 months

    ·     An organisational chart setting out all positions in the business.

    ·     Form Financial Report for 2014 ie for the fye 31/12/2014

15. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

16. As the nominators’ business activities do not include those relating to labour hire Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination. 

    Term of employment of the visa holder: r.5.19(4)(d)

17. 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 extension of the employment. 

18. Ms Eggleston submitted that although the signed Letter of Engagement dated 7 October 2013 does not stipulate the duration of the employment contract the nominated position is curtail to the delivery of a number of significant projects, many of which will roll out over the next 3 to 5 years. The Tribunal has had regard to and the evidence of Ms Eggleston and is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment. Accordingly the requirements of r.5.19(4)(d) are met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

19. 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.

20. The Tribunal has had regard to the Letter of Engagement dated 7 October 2013 which details the terms and conditions of employment. The Tribunal notes that the position initially attracted an annual salary of $75,000 plus superannuation. The Tribunal has also been provided with correspondence from the Executive Director and current payslips confirming the visa applicant’s salary has increased to $77,500 per annum.

21. Ms Eggleston submitted that in arriving at the terms and conditions of employment FORM has had regard to the standard entitlements for the nominated position which are inline with the entitlements for Australian Citizens and equivalent FORM employees. By way of example the Tribunal was provide with the 2014 salary levels of comparable senior team members and art managers working at FORM. The Tribunal is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace.

22. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

23. 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 adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7). There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

24. 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 Tribunal is satisfied with the applicant’s record of compliance with workplace relations laws in Australia. Accordingly the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position r.5.19(4)(h)

25. Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to access the application against the criteria in r.5.19(4)(h)(ii) which require:

    ·     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 Australian citizen or permanent resident,

    ·     the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and

    ·     a regional certifying body has advised the Minister about certain matters relating to the position.

26. Ms Eggleston submitted that the Arts Manager serves a unique and specialising role requiring a mix of technical, architectural and project management skills as well as knowledge of the creative process. By way of example the position requirements include:

    ·     Liaising and co-ordinating with clients including property developers and architects to interpret and develop architectural drawings

    ·     Manage indigenous artists from all regions of Western Australia and facilitate their professional development

    ·     Identify and secure new projects and revenue opportunities for the organisation by writing and responding to tenders and other requests  for proposal

    ·     Manage infrastructure-scaled cultural art programing from conception through to installation. 

27. It was submitted that given the variety of high-level skills needed in the role, FORM had been searching to fill the nominated position and conducting interviews and employee trials for more than 12 months.

28. It was submitted that the projects managed and overseen by the Art Manager are responsible for a large percentage of FORM’s funding and revenue which subsidies FORM’s non-revenue generating cultural and programming activities which are crucial to the operation of a not-for-profit organisation

29. Having regard to Ms Eggleston evidence the Tribunal is satisfied that the Art Manager position is critical to the operations of FORM.

30. The Tribunal has had regard to the size and scope of the applicant’s business operations and the length of the visa applicant’s employment, her qualifications and is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

31. The Tribunal is satisfied the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia

32. Turning to the requirement prescribed in r.5.19(4)(h)((ii)(D), this requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The position of Arts Manager nominated by the applicant is referred to in ANZSCO as a skill level 1position.

33. The Tribunal considered the tasks found in ANZSCO for this position and compared them to the job description provided by the applicant. The Tribunal is satisfied that the nominated position located in Perth, Western Australia can properly be classified as a position for a Arts Manager, ANZSCO Skill Level 1. The Tribunal therefore finds that the nomination does satisfy r.5.19(4)(h)(ii)(D) of the Regulations.

34. The Tribunal has had regard to Form 1404 issued by a the RCB dated 19 August 2015 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally. Accordingly the requirements of r.5.19(4)(h) are met.

35. 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

36. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Christopher Smolicz

    
    

    Member

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19    Approval of nominated positions (employee nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; 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;

    (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 at a skill level of ANZSCO skill level 1, 2 or 3;

    (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).