1413388 (Migration)

[2015] AATA 3198

1413388 (Migration) [2015] AATA 3198 (27 July 2015)

DECISION RECORD

APPLICANT:  NOSTRADATA PTY LTD

MRT CASE NUMBER:  1413388

DIBP REFERENCE(S):  BCC2014/604821

TRIBUNAL MEMBER:  Mary-Ann Cooper

DATE:27 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 27 July 2015 at 11:35am

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 16 July 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 2 March 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)(d) and (g) because she was not satisfied that the employee would be employed on a fulltime basis for two years or that the training benchmarks were met.

5. The applicant, by its director, appeared before the Tribunal on 16 July 2015 to give evidence and present arguments. 

6. The applicant was represented in relation to the review by its registered migration agent who did not attend the hearing.

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. 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.

9. Prior to the hearing the following documents were forwarded:

   ·    BAS statements for each quarter from 1 July 2014 to 31 March 2015.

   ·    Various invoices relating to training.

   ·    Organisation chart

   ·    Nominee’s employment contract and a variation to it.

   ·    Profit & Loss statements for 2013/14

   ·    Position description for the nominated position

   ·    Job outlook data relating to the role and advertisements for similar roles.

   ·    Sponsorship approval documents

   ·    Submission from the applicant’s representative.

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

10. 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.

11. The Department’s file and records confirm that the application for approval was made on the approved form and that the prescribed fee was paid.

12. In addition to the material forwarded to the Tribunal prior to the hearing, which indicated increasing business activity and profits over the last three years, the applicant’s director also provided further financial information following the hearing, which demonstrated its increasing revenue. At the hearing, the director told the Tribunal that the organisation works with retailers and manufacturers in the pharmacy industry providing the aggregation and reporting of various types of data. The software utilised to deliver this reporting for clients requires someone with specific knowledge its operation and the nominee was one the few people in Australia with that specific knowledge. Based on the oral evidence of the applicant’s director and the significant amount of supporting material provided, the Tribunal is satisfied that there is a need for the nominator to employ a paid employee to work in the position under his direct control.

13. Accordingly, the requirements in r.5.19(4)(a) are met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

14. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

15. Based on the ASIC, ABN and BAS documentation provided prior to the hearing, along with the Profit & Loss statements and various invoices and statements before and after the hearing, the Tribunal is satisfied that the applicant directly operates the business, which is actively and lawfully operating at the above location, in Australia.

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

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

17. 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.

18. As confirmed at the hearing, the applicant’s business activities do not involve labour hire.

19. Therefore the requirement in r.5.19(4)(c) does not apply.

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

20. 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. 

21. The delegate had noted that no employment contract had been provided for the position and consequently was not satisfied that the nominee would be employed fulltime for 2 years.

22. The Tribunal has been provided with a copy of the employment contract originally signed in 2012 between the applicant and the nominee and a later document dated 28 May 2015 in which the applicant offered the nominee the ongoing position of Software engineer, subject to his nomination approval, and which indicates that the position will be available for 3 years. There is no express exclusion of the extension of the employment.

23. In addition, as noted above, the Tribunal has been provided with a significant amount of financial information and is satisfied that these materials demonstrate a growing revenue base and confirm that the applicant is able to support the nominated position as fulltime for 2 years.

24. Accordingly, the requirement in r.5.19(4)(d) is met.

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

25. 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.

26. The applicant’s director advised that there is no Australian citizen employee performing the same work in the same workplace at the same location and that their employees are engaged on individual contracts which are drafted by their lawyers. He was unaware if the position was covered by an Award and there was no enterprise agreement covering the workplace. The Tribunal is satisfied, having conducted its own limited search, that there is no Award or enterprise agreement which relevantly covers the nominated position.

27. The Tribunal therefore accepts that the employment contract provided the relevant terms and conditions of employment for the nominated position. In this context the Tribunal notes that the document specifies that if any relevant law requires minimum terms to be provided then to the extent the contract did not so provide, such minimum terms are “deemed incorporated.” The Tribunal has also had regard to the extensive marketing and advertising information supplied which demonstrates market salaries for the equivalent position and is satisfied that the terms and conditions for the nominated position , overall, 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.

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

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

29. 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).

30. There is nothing before the Tribunal to indicate that there is any adverse information (as defined in r.2.57(3)) known to Immigration about the applicant or any person associated with the applicant. The applicant’s director was unaware of any such information.

31. Accordingly the requirements of r.5.19(4)(f) are met.

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

32. 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.

33. There is nothing before the Tribunal to indicate that the applicant has other than a satisfactory record of compliance with workplace relations laws in the location in which it operates a business and employs staff. The director confirmed at the hearing that he is unaware of any instances of non-compliance with Commonwealth or State workplace relations laws.

34. Accordingly the requirements of r.5.19(4)(g) are met.

    Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)

35. 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:

    ·    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 14/049), and certain specified training benchmarks will be 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 at the ANZCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

36. As the position and the nominator’s business are located in Melbourne, not in regional Australia, the second alternative does not apply.

37. In relation to the first alternative, the tasks to be performed in the nominated position do correspond to the tasks of a Software engineer, ANZSCO 261313, as specified in IMMI 14/049.

38. In addition, the nominator is required to meet the training requirements specified in the relevant instrument (if the business has operated for over 12 months). ASIC and ABN documentation noted above indicates that the applicant has been actively trading since 2010 and the director confirmed this at the hearing. Therefore, the applicant must meet the requirements of Training Benchmark A or Training Benchmark B as specified in IMMI 13/030. Under Training Benchmark A, the applicant is required to demonstrate recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry-training fund that operates in the same industry as the business. The applicant’s director confirmed that there is no claim that any payment has been made to an industry-training fund. Training Benchmark A is therefore not met.

39. To satisfy Training Benchmark B an applicant must show recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

40. In the visa application, the applicant indicated that it had a payroll of $825,450 and spent $80,538 on training. Nothing in the subsequent documentation provided confirmed expenditure of this amount. Some further documents are on file but they were insufficient to satisfy the delegate as to the relevant expenditure amount. In the circumstances, the nomination approval was refused.

41. Prior to the Tribunal hearing the applicant sent further information and documents as noted above, including additional Profit & Loss information, BAS statements and Invoices for training. Based on this evidence, in relation to the financial year 2013/14, the Tribunal is satisfied that the applicant’s payroll was $939,931.00 and its training expenditure was at least $13,625.00. As this amount exceeds 1% of its payroll for the relevant period the Tribunal is satisfied that it had met Training Benchmark B for this period.

42. In relation to the 2014/15 financial year, the Tribunal queried the nature of some of the invoices provided and indicated that it did not consider all of the information was appropriately characterised as training within the meaning of IMMI 13/030. After some discussion, it was revealed that the applicant had incurred further items of training expenditure the details of which it had failed to provide. Following the hearing documentation was provided  demonstrating total training expenditure in the recent period of $19,710.00. The applicant also provided its payroll figure for 2014/15, which, including wages and superannuation, amounted to $1,357,988.28. On this basis, the Tribunal is satisfied that the applicant’s recent expenditure on training (i.e. for the 2014/15 financial year), at $19,710.00, is in excess of 1% of its total payroll for the equivalent period.

43. The Tribunal therefore finds that the applicant meets the requirements of Training Benchmark B.

44. Accordingly, the requirements of r.5.19(4)(h) are met.

    CONCLUSION

45. 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

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

    Mary-Ann Cooper
    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).