1418673 (Migration)

1418673 (Migration) [2016] AATA 3700 (13 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  VIC Investments Management Group
CASE NUMBER:  1418673
DIBP REFERENCE(S):  BCC2014/1761881
MEMBER:Mary-Ann Cooper
DATE:13 April 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 13 April 2016 at 9:09am

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 November 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 18 July 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 Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d) of the Regulations because he/she was not satisfied that the applicant had the financial capacity to offer fulltime employment for two years to the nominee.
The applicant’s CEO appeared before the Tribunal on 17 March 2016 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent who did not attend the hearing.
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 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 must identify a need for the nominator to employ a paid employee to work in the position under their direct control.
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.
At the hearing, the applicant’s CEO explained the applicant business of property development, the importance of the role and the difficulties it has had in finding a suitable candidate. He said they had outsourced the role but this was unsatisfactory in many respects and has come at a large financial cost.
Based on the above, the Tribunal is satisfied that the applicant has identified its need for a paid employee to work in the position under the nominator’s direct control.
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.
Based on the ASIC, ABN and BAS documents provided prior to and after the hearing, the Tribunal is satisfied that the applicant directly operates the business, which is actively and lawfully operating in Australia in Melbourne and Sydney.
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 applicant’s CEO confirmed at the hearing that the applicant’s business activities do not involve labour hire.
Therefore 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 extension of the employment.
The employment contract provided for the nominated position does not expressly exclude an extension of the employment. The CEO advised the Tribunal that the salary has been increased to $210,000 per year plus superannuation.
On the information before the delegate, s/he was not satisfied that the business had the financial capacity to sustain the position fulltime for 2 years. The Tribunal has the advantage of signficantly more financial information than was before the delegate. As also explained by the CEO, the applicant business of property development will have varying cash flows depending on the stage of the particular property development. He provided documentation demonstrating the three large new projects under development. In addition, the financial statements for the year ended 30 June 2015 demonstrate that the company has a net profit of over $1 million. The Tribunal queried the apparent inconsistency between the 2014/15 wages figure of $432,571.71 and the organisation structure provided which indicated that the applicant had 13 employees. Later correspondence received from the applicant’s representative explained that its labour costs are distributed across 5 other entities and therefore their wages are not all funded from this applicant’s finances. It confirmed that the nominee’s wages would be paid by the applicant business. On this basis, the Tribunal is satisfied that the business has the financial capacity to sustain the employment for 2 years.
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.
As confirmed by the applicant’s CEO at the hearing, there is no Australian citizen or permanent resident undertaking equivalent work in the same location. Documents were provided which demonstrated that the position’s salary is well in excess of market salary rates and that appropriate levels of superannuation will be paid. The Tribunal also notes that the relevant industrial instruments are appropriately referenced. In the circumstances, the Tribunal is satisfied that the nominee’s terms and conditions of employment meet and exceed those terms and conditions that would be provided to an Australian citizen or permanent resident performing the same work in the same location. It follows that the Tribunal accepts that the terms and conditions of employment applicable to the nominated position are no less favourable.
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 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 nothing before the Tribunal to indicate that there is any adverse information (as defined) known to Immigration about the applicant or any person associated with the applicant.
Accordingly the requirements of r.5.19(4)(f) are met.
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.
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 locations in which it operates a business and employs staff. The CEO confirmed at the hearing that it has had no instances of non-compliance with Commonwealth or State workplace relations laws.
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)
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 15/091, 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 ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.
As the position and the nominator’s business are located in Melbourne, not in regional Australia, the second alternative does not apply.
In relation to the first alternative, the tasks to be performed in the nominated position will be undertaken in Melbourne and do correspond to the tasks of a Sales and Marketing Manager, ANZSCO 131112, as specified in IMMI 15/091.
The other relevant requirement is that the nominator meets 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 2011. 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. 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.
At the hearing, the Tribunal noted that there was insufficient evidence before it to enable it to accurately determine the applicant’s payroll. Following the hearing the applicant forwarded various financial documents which indicated a payroll (including superannuation) of $474,162.98.
A receipt had been provided of a payment made in September 2014 to Sydney Institute of TAFE for an amount of $800 in respect of Training Benchmark A. As this is not at least 2% of the payroll for the business in the financial year 2014/15 Training Benchmark A is therefore not met.
In respect of Training Benchmark B the applicant provided receipts demonstrating recent expenditure totalling $12,511.20 (the $800 relevant to Training Benchmark A having been deducted.) This amount is in excess of 1% of the applicant’s payroll. The Tribunal therefore finds that the applicant meets the requirements of Training Benchmark B.
Accordingly the requirements of r.5.19(4)(h)(i) are met. It follows that r.5.19(4) as a whole is also met.
CONCLUSION
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.
Mary-Ann Cooper
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
(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).

[2016] AATA 3700

13 April 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction