1501459 (Migration)

[2015] AATA 3450

1501459 (Migration) [2015] AATA 3450 (6 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SPRINGLAND INVESTMENTS PTY LTD ATF SPRINGLAND INVESTMENTS UNIT TRUST

CASE NUMBER:  1501459

DIBP REFERENCE(S):  BCC2014/1921997

MEMBER:Lesley Hunt

DATE:6 October 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 06 October 2015 at 5:00pm

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 12 January 2015 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 6 August 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(3) or r.5.19(4) of the Regulations because insufficient claims and evidence were submitted with the application.

5. The applicant appeared before the Tribunal on 29 September 2015 to give evidence and present arguments.

6. 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. 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. The applicant’s claims and evidence are found in the departmental file No. BCC2014/1921997 and the Tribunal file.  The Tribunal has had regard to the material referred to in the delegate’s decision, the material submitted by the applicant, and other material available to it from a range of sources.

   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 departmental file contains a copy of the application for approval of a Nomination under the Employer Nomination Scheme by Springland Investments Pty Ltd ATF Springland Investments Unit Trust, trading as Burleigh Heads Carpet Court.  The Tribunal is satisfied the application was submitted on the approved form and the prescribed fee was paid on 6 August 2014. 

12. In assessing the need for a paid employee, the Tribunal has had regard to departmental policy that states that the assessment of “the need for a paid employee” involves two steps.  The first step is to establish the need for an employee, in terms of a genuine vacancy for the nominated position.  The second step is to ascertain whether the relationship between the nominator and the nominee is that of employer and employee. 

13. The nominator, trading as Burleigh Heads Carpet Court, has provided information indicating that it is a flooring centre specialising in vinyl and carpet installation.  At the hearing, Bruce Dickinson, the Director of Burleigh Heads Carpet Court, representing the nominating business, clarified that the business had a genuine vacancy for the nominated position and provided reasons indicating that the position is critical to the work of the business.  Mr Dickinson clarified that he had no relationship with the nominated employee, Mr Allport, prior to employing him in the nominated position.  The Tribunal found Mr Dickinson to be a credible witness and there is no evidence before it to indicate that the relationship between Mr Dickinson and Mr Allport is anything other than that of employer and employee.  After assessing all the evidence the Tribunal is satisfied that that the nominating business has a need for a paid employee in the nominated position of flooring finisher.

14. The information before the Tribunal indicates that the nominating business has employed the visa applicant, Jonathon Ramond Allport, as a floor finisher at least since 28 January 2013.  The letter of engagement indicates that the nominated employee will be working under the Director, Brendon Dickinson. At the hearing, Mr Dickinson clarified that all employees of the business are directly accountable to him.  The Tribunal is satisfied that the application identified a need for the nominator to employ a paid employee, Jonathon Raymond Allport, to work in the nominated position of Flooring Technician (ANZSCO Occupation Floor Finisher) under the nominator’s direct control.

15. 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)

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

17. The nominator has provided a number of Business Activity Statements, from April 2013 through to March 2015; various PAYG summary sheets for employees; Profit and Loss Statements through to August 2015; and evidence of an ongoing ABN for the Springland Investments Unit Trust commencing in October 2005. 

18. At the hearing Mr Dickinson told the Tribunal that he purchased into the business in 2007 with a business partner and subsequently he purchased the business outright in 2010.  The documentary evidence submitted to the Tribunal indicates that the business is an ongoing, growing concern with an annual turnover increasing each year.  There is no information before the Tribunal to indicate that any unlawful activity is associated with the business.

19. The Tribunal is satisfied on the evidence before it that the nominator is actively and lawfully operating a business in Australia and is directly operating the business. 

20. The Tribunal finds that the requirement in r.5.19(4)(b) is met.

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

21. 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. 

22. The Tribunal notes the letters on file from Burleigh Heads Carpet Court Floor Centre, the trading name for Springland Investments Pty Ltd, the letter of engagement and other documents on file.  There is no information before the Tribunal to indicate that the nominator is involved in hiring labour to other unrelated businesses.  Mr Dickinson confirmed this at the hearing. The Tribunal is satisfied that the nominated position is within the business activities of the nominator and is not for hire to other unrelated businesses. 

23. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

24. 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.

25. The evidence before the Tribunal includes two employment contracts for the nominee in relation to the nominated position.  The first contract covered the period from 28 January 2013 for two years. The second contract is dated 18 March 2015 and is for a further two-year period.  In addition, the nominator submitted a number of payroll advice statements and business activity statements that indicate that the business is a growing and viable concern. At the hearing, Mr Dickinson stated that the nominee is a valued and experienced employee and that he is willing to continue his employment for as long as the nominee wishes to remain in the position. The Tribunal is satisfied on the evidence that the nominee is employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude an extension of the employment beyond a two-year full time period.

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

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

27. 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.

28. A letter from the Director indicates that currently the nominating business does not directly employ other Floor Finishers; however, other Floor Finishers are engaged as sub-contractors.  Mr Dickinson stated at the hearing that sub-contractors are paid on a piece rate.  For example, a sub-contracting carpet layer would be paid $22 per metre and taxes and other costs are deducted from that.  An average sub-contractor works a 12-hour day and is paid approximately $500 to $600 for the day.  This works out at $45 to $50 an hour; however, the sub-contractor provides his own tools, transport, and meets all other costs involved in the work except for the materials provided by the business i.e. the carpet or vinyl to be laid.  The sub-contractor is not paid sick leave or holiday leave, pays his or her own superannuation and other expenses related to their business.  Mr Dickinson stated that the nominee employed as the floor finisher is paid $59,280 per annum for a 38-hour week.  This equates to $30 per hour. However, the nominee has no material costs to pay himself, he has a car provided that he has for personal use as well as work purposes and a mobile phone and all his tools are provided by the business. 

29. Other information provided by the nominator includes Job Outlook data, Job advertisements, and Career Advice from Open Universities. The Australian Government Job Outlook information indicates that floor finishers’ weekly gross earnings are between $900 and $1152; that is between $46,800 and $59,904 gross annual income; the job advertisements indicate a salary of $60,000 per annum. The employment contract for the nominated employee in the nominated position indicates an annual salary of $59,280 for a 38-hour week and sets out standard terms and conditions of employment consistent with those in the Fair Work Act 2009. Information provided in payroll advice statements for the nominated position is consistent with this salary level.

30. After assessing the evidence, the Tribunal is satisfied that the nominated employee is engaged to work as a Floor Finisher on an employment contract under terms and conditions that are 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.

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

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

32. 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).

33. There is no information before the Tribunal about the nominator or a person associated with the nominator that is adverse as that term is defined in the legislation. 

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

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

35. 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.

36. The term “satisfactory compliance” is not defined in the legislation and are given their dictionary meaning.  There is no information before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with workplace relation laws in the locations in which it operates a business and employs staff. 

37. Accordingly the Tribunal is satisfied that 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)

38. 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 14/048), 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.

39. In this case, the nominated business, operating from postcode area 4220, is not located in regional Australia. 

40. The nominated occupation, Floor Finisher, is defined in ANZSCO Dictionary (332111).  The ANZSCO dictionary indicates that the tasks of a floor finisher  are:

    a.measuring areas to be covered and consulting plans to estimate quantities of floor covering materials required

    b.preparing surfaces for covering and removing baseboard trims

    c.measuring, cutting and fixing underlay materials

    d.laying coverings, such as carpets, linoleum, parquetry blocks, cork tiles and other resilient flooring materials, over floors, matching patterns, cutting shapes around fixtures and trimming edges

    e.securing floor coverings and fitting edge trims in doorways

    f.sanding, staining and applying finishing coatings to timber floors

    g.may install wall, ceiling, counter and bench coverings

41. The Tribunal finds that these tasks are consistent with the tasks outlined in the offer of employment for the nominated position submitted with the nomination application.  In addition, the Tribunal notes that the nominator submitted a letter from Trades Recognition Australia (TRA) with respect to the nominee and the letter states that the nomine has been assessed as qualified for the occupation of Floor Finisher following the assessment process.

42. The Tribunal is satisfied that the tasks to be performed in the nominated position, by the nominee, will be performed in Australia and correspond to the tasks specified in the relevant instrument (IMMI 15/091) for the occupation of Floor Finisher (ANZSCO 332111): r.5.19(4)(h)(i)(A).

43. Sub-regulation 5.19(4)(h)(i)(B)(I) requires that the nominator’s business has operated for at least 12 months, and the nominator meets the training requirements in respect of Australian citizens and Australian permanent residents that are specified in the relevant Instrument (IMMI 13/030).   

44. The documents submitted in support of the nomination application indicate that the business has been established longer than 12 months.  At the hearing, Mr Dickinson stated that he purchased the business initially with a partner in 2007 and later he purchased it outright in 2010.  The Tribunal is satisfied that that the nominating business has operated for at least 12 months. 

45. With respect to the training requirements, the relevant legislative instrument (IMMI 13/030) specifies that the nominating business is required to show that training has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents and is related to the purpose of the business.  The training benchmarks for an established business include 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. Expenditure that can count towards this benchmark includes, but is not limited to: paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy; and employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business. 

46. The nominator told the Tribunal that the business has 15 employees, including administrative staff, sales people and tradesmen.  He stated that the business currently has two apprentices and that both are Australian born, Australian citizens.  He stated that the apprenticeship includes TAFE studies in the Certificate III in Flooring Technology.  As evidence in this regard he submitted two current Apprenticeship / Traineeship Training Plans for the Certificate III in Flooring Technology TAFE course completed and signed by the relevant parties in April 2015.  Mr Dickinson stated at the hearing that the business covers the course fees and receives reimbursement from government that covers the fuel costs.  He clarified that the two apprentices are in full-time study for six weeks of the year and during this time they are not working.  PAYG payment summaries for both apprentices were submitted as evidence of their ongoing employment and salary levels. Profit and Loss statements for the financial year 2014-2015 show a total payroll, including sub-contractors, of $722,084, 1% of which is $7221.  Information from the website of TAFE Queensland indicates that the cost of the TAFE course for the two apprentices is greater than 1% of the total payroll of the nominating business.  The Tribunal is satisfied on the evidence that the costs of training the two Australian citizen apprentices runs to at least 1% of the payroll of the business.   

47. The Tribunal is satisfied that the requirements of r.5.19(4)(h) are met.

48. 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

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

    Lesley Hunt
    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).