1415378 (Migration)

1415378 (Migration) [2015] AATA 3627 (11 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ROCK FORM GROUP PTY LTD
CASE NUMBER:  1415378
DIBP REFERENCE(S):  BCC2014/935475
MEMBER:John Cipolla
DATE:11 November 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 November 2015 at 9:42am

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 5 September 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).
The applicant applied for approval on 7 April 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Temporary Residence Transition Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(e) of the Regulations. The reason for this was that in the employment contract lodged with the Department the applicant’s sick leave was less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident performing equivalent work.
The applicant company was represented in relation to the review by a registered migration agent.
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
In this case the nominator has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition Stream. The requirements for approval of a temporary residence transition nomination are set out in sub-regulation 5.19(3) as follows:
Temporary Residence Transition nomination
(3)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 person who holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Business (Long Stay)) visa; and
(b)the nominator:
(i)is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Business (Long Stay)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)is actively and lawfully operating a business in Australia; and
(c)either:
(i)
(A)the holder of the Subclass 457 (Business (Long Stay)) visa identified in subparagraph (a)(ii) has been employed in the position in respect of which the person holds a Subclass 457 (Business (Long Stay)) visa for a total period of at least 2 years (not including any period of unpaid leave) in the period of 3 years immediately before the nominator made the application; and
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)all of the following apply:
(A)the person holds the Subclass 457 (Business (Long Stay)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Business (Long Stay)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)the terms and conditions of the person’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)the nominator has met the training requirements that the nominator was required to meet under:
(i)paragraph 2.59(d) or (e); or
(ii)paragraph 1.20D(2)(c);
for the purpose of approval as a standard business sponsor; and
(g)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
(h)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.
The Requirements for a Temporary Residence Transition Nomination – Sub-regulation 5.19(3):
(a)The application is made in accordance with the approved form, accompanies by the prescribed fee and identifies a person and occupation:
5.19(3)(a)
Based upon the application on the Departmental file the Tribunal finds that the application was made in accordance with the approved form and accompanied by the fee prescribed in regulation 5.37. Accordingly, the Tribunal finds that the application for approval was made in accordance with sub-regulation 5.19(2) and, therefore, the requirements of sub-paragraph 5.19(3)(a) have been met.
The application for approval nominated Mr Michel Geagea for the nominated position of Construction Manager (Building Supervisor). According to Departmental records Mr Geagea holds a subclass 457 visa granted to him on the basis of satisfying subclause 457.223(4) of schedule 2. As a result, the Tribunal finds that the application for approval meets the requirements of sub-paragraph 5.19(3)(a)(ii).
Sub-paragraph 5.19(3)(a)(iii) requires the application for approval to identify an occupation in relation to the position that is listed in ANZSCO and has the same four digit code as the occupation carried out by the Subclass 457 visa holder.
The evidence in this case indicates that Rock Form Group Pty Ltd’s most recent Subclass 457 nomination with respect to Mr Geagea’s position of Construction Manager (Building Supervisor) was approved as Building Supervisor (ANZSCO 312112) and was used in connection with Mr Geagea’s 457 visa that Mr Geagea held at the time of lodgement of the nomination application under review. Rock Form Group Pty Ltd’s nomination application that is the subject of this review with regard to Mr Geagea’s position has also nominated as Construction Manager (Building Supervisor) (ANZSCO 312112).
The Tribunal thus accepts that the occupation carried out by Mr Geagea as the holder of a Subclass 457 visa corresponds with the nominated position. As the nominated position is listed in ANZSCO under the occupational unit group code 3121 Construction Manager (Building Supervisor), the Tribunal finds that the requirements of sub-paragraph 5.19(3)(a)(iii) are met.
Therefore, given its findings in respects of sub-paragraph 5.19(3)(a)(i),(ii) and (iii), the Tribunal finds that the requirements of paragraph 5.19(3)(a) are met in the present matter.
(b )Nominator is/was standard business sponsor and is actively and lawfully operating a business in Australia:
5.19(3)(b)
According to Departmental records Rock Form Group was last approved as a Standard Business Sponsor on 21 August 2015 under regulation 1.20D in relation to the Subclass 457 visa application lodged by Mr Geagea.
Accordingly, based upon this evidence the Tribunal finds that the applicant, Rock Form Group Pty Ltd was the Standard Business Sponsor who last identified Mr Geagea as the relevant Subclass 457 visa holder in a nomination made under regulation 1.20G, as in force immediately before 14 September 2009. As a result, the Tribunal finds that the requirements of sub-paragraph 5.19(3)(b)(i) have been met.
In relation to sub-paragraph 5.19(3)(b)(ii), based on the records available from ASIC and the Australian Business Register, the Tribunal finds that the applicant business, Rock Form Group Pty Ltd is actively and lawfully operating a business in Australia. Consequently, the Tribunal finds that the requirements of sub-paragraph 5.19(3)(b)(ii) have been met.
Therefore, the Tribunal finds that the requirements of 5.19(3)(b) are met in this case.
(c)Previous Employment of the Visa Holder:
5.19(3)(c)
Paragraph 5.19(3)(c) requires the applicant to satisfy either sub-paragraph 5.19(3)(c)(i) or (ii).
In this case, Mr Geagea as the Subclass 457 visa holder has been employed as a Building Supervisor. The evidence indicates that the employment was also undertaken at Rock Form Groups contracted sites in NSW on a full time basis.
The requirements of sub-paragraph 5.19(3)(c)(i) are such that in the period of three years immediately before the nominator made the application, the holder of the Subclass 457 (Business) (Long Stay) visa identified in Sub-paragraph (a)(ii) must have:
(I) Held one or more Subclass 457 visas for a total period of at least two years; and
(II) Been employed in the position in respect to which the person holds the subclass 457 (Business) (Long Stay) for a total period of at least two years (not including any period of unpaid leave.
Reference in this sub-paragraph is to the position. As noted the Tribunal has been provided with a copy of the position description Construction Manager (Building Supervisor) lodged with Rock Form Pty Ltd’s 457 nomination application in 2011 and 2015. This evidence indicates that the applicant has been performing the tasks of the nominated position evidenced from the duty statements/position descriptions provided over the period he has held 457 visas.
Sub-paragraph 5.19(3)(c)(i)(d) requires that, in the period of three years immediately before the nomination application was made, that the holder of the Subclass 457 visa has been employed in the position in respect to which the person held the Subclass 457 visa for a total period of at least two years on a full time basis for work undertaken in Australia.

(d) Having regard to the evidence before it, the Tribunal finds that the requirements of sub-paragraph 5.19(3)(c)(i)(d) and paragraph 5.19(3)(c) have been met.
(a)Future employment of the visa holder:

5.19(3)(d)

As Mr Geagea is a person to whom sub-paragraph 5.19(3)(c)(i) applies, in order to meet the requirements of paragraph 5.19(3)(d) he must be employed in the nominated position on a full-time basis for at least two years on terms and conditions of employment that will not expressly exclude the possibility of extending the period of his employment.
The Tribunal notes that the employment agreement between Rock Form Group Pty Ltd and Mr Geagea is for a two year minimum period with the possibility of an extension at the end of the fixed term.
The Tribunal accordingly finds that the requirements of paragraph 5.19(3)(d) have been met.
(e)No less favourable terms and conditions of employment:
5.19(3)(e)
The employment agreement between Rock Form Group and Mr Geagea sets out the terms and conditions in respect of his employment. In particular the agreement sets out the commencement date for the agreement, the position to be filled, working hours and annual salary, including superannuation and allowances. The employment contract provided at review indicates that the applicant will be entitled to 10 sick days per year and that his sick leave is cumulative. It also sets out the duties and responsibilities of the nominated position, including issues relating to OH&S, confidentiality and intellectual property.
The evidence before the Tribunal is such that the terms and conditions of employment applicable to the nominated position would be no less favourable than the terms and conditions that are/would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the applicant’s business premises.
The Tribunal accordingly finds that the requirements of sub-paragraphs 5.19(3)(e)(i) and (ii), and therefore paragraph 5.19(3)(e) have been met.
(b)Training Requirements:
5.19(3)(f)
There is no evidence before the Tribunal to indicate that the applicant business Rock Form Group Pty Ltd has not met the training requirements it was required to meet under paragraph 1.20D(2)(c) for the purposes of approval as a standard business sponsor. The Tribunal finds that the requirements of sub-paragraph 5.19(3)(f)(ii) and paragraph 5.19(3)(f) have been met.
(c)Nothing adverse about compliance with immigration laws:
5.19(3)(g)
There are no records on the Departmental file to indicate that there is any adverse information as defined in regulation 2.57(3), known to immigration about the applicant business, Resmed Limited or any person associated with it. Nor has any such adverse information become known to the Tribunal since the lodgement of the review application. Accordingly, the Tribunal finds that the requirements of paragraph 5.19(3)(g) have been met.
(d)Satisfactory compliance with workplace relations laws:
5.19(3)(h)
There is no evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with workplace relations laws in NSW where it operates. Therefore the Tribunal finds that the requirements of paragraph 5.19(h) have been met.
CONCLUSIONS
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of regulation 5.19 for approval of the nomination of the position in Australia of Construction Manager (Building Supervisor).
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
John Cipolla
Senior 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.
Temporary Residence Transition nomination
(3)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 person who holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Business (Long Stay)) visa; and
(b)the nominator:
(i)is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Business (Long Stay)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)is actively and lawfully operating a business in Australia; and
(c)either:
(i)
(A)the holder of the Subclass 457 (Business (Long Stay)) visa identified in subparagraph (a)(ii) has been employed in the position in respect of which the person holds a Subclass 457 (Business (Long Stay)) visa for a total period of at least 2 years (not including any period of unpaid leave) in the period of 3 years immediately before the nominator made the application; and
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)all of the following apply:
(A)the person holds the Subclass 457 (Business (Long Stay)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Business (Long Stay)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)the terms and conditions of the person’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)the nominator has met the training requirements that the nominator was required to .meet under:
(i)paragraph 2.59(d) or (e); or
(ii)paragraph 1.20D(2)(c);
for the purpose of approval as a standard business sponsor; and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)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
(h)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.

[2015] AATA 3627

11 November 2015

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Immigration

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Judicial Review

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