1502456 (Migration)

[2016] AATA 4207

1502456 (Migration) [2016] AATA 4207 (8 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  OMEGA CERAMICS DENTAL LABORATORY PTY LTD ATF THE OMEGA UNIT TRUST

CASE NUMBER:  1502456

DIBP REFERENCE(S):  BCC2014/2662507

MEMBER:Brook Hely

DATE:8 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2016 at 3:42pm

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 17 February 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 10 October 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(a)(iii)(B) of the Regulations because the occupation identified in the application did not have the same 4-digit ANZSCO unit group code as the occupation carried out by the relevant holder of the subclass 457 Visa.

5. The applicant appeared before the Tribunal on 1 April 2016 to give evidence and present arguments, with Ms Amy Hazelman giving evidence on the applicant’s behalf.

6. 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

7. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Preliminary comments

8. The present application was refused by the Department due to an incorrect occupation being identified in the application. Upon becoming aware of this error, the applicant resubmitted a further nomination application. This application was granted by the Department on 27 October 2015. As such, the outcome of the present application would seem to be of no real consequence. The Tribunal was informed at the hearing by Ms Hazelman that the applicant and the Department are currently in dispute as to who was at fault in causing that error, and who should be responsible for the additional cost arising from the need to re-submit the application for approval. The Tribunal makes no findings on these matters.

9. However, in circumstances where the Tribunal is reviewing refusal of a nomination and a subsequent nomination of the same position has been approved, the Tribunal must still carry out a review of the nomination refusal decision (assuming a valid application for review has been made) and exercise its powers to either affirm the refusal decision or set it aside and substitute a new decision that the nomination is approved. At least as far as the criteria under r.5.19(3) are concerned, there is no express prohibition in the Regulations on multiple nominations of a particular position, and no specific criterion for approval relating to previous nomination approvals.

   The application must be compliant: r.5.19(3)(a)

10. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.

11. The nomination was made on the approved form and there is nothing on the Department file to indicate that the fee payable for this application was not paid. As the application was made prior to 14 December 2015, the requirement to provide written certification relating to conduct that contravenes s.245AR(1) does not arise.

12. At the Tribunal hearing, Ms Hazelman gave evidence that the delegate refused the nomination on the basis that the application had not listed an occupation of the same ANZSCO unit group code as the occupation being carried out by the nominated worker. Specifically, the delegate had found that the nominated occupation was Human Resources Manager, but Mr Z’s subclass 457 visa had been granted on the basis of his occupation of dental technician. Ms Hazelman submitted that the reference in the application to human resource manager was an error by the Department, and that the applicant had always only ever wanted to nominate a dental technician.

13. Whether the application for approval identifies a relevant occupation is a question of fact. Although arguably the language of this provision may suggest that these requirements must be met at the time of application (particularly the requirement that the person identified ‘holds’ a Subclass 457 visa), there is no express requirement to this effect. The terms of the provision do not prevent these requirements being met at some point after the application date. There is nothing in the terms of r.5.19(3)(a) which prevents the visa holder or occupation being changed during the processing of the nomination application, providing the other requirements of r.5.19(3) are met.[1]

    [1] Departmental policy (PAM3) doesn’t specifically address this issue: PAM3: Migration Regulations – Schedules > Sch 2 Visa 186 – Employment Nomination Scheme > About the Employer Nomination scheme > EN-186 Direct Entry (DE) stream (reissued on 1/01/2016) and; PAM3: Migration Regulations – Divisions – Div 5.3 – General > Reg 5.19 – Approval of nominated positions (employer nomination) > Criteria applicable to Temporary Residence Transition stream nominations > Nominated Occupation (reissued on 1/01/2016).

14. While the purpose of the Temporary Residence Transition nomination stream, which is to provide a visa pathway for Subclass 457 visa holders who have worked for their employer for at least the last 2 years and whose employer wants to offer them a permanent position in the same occupation,[2] suggests such changes may in practice be infrequent, they would not necessarily be inconsistent with that purpose provided other requirements of r.5.19(3) (e.g. requirements in r.5.19(3)(c) concerning prior employment) are satisfied.

    [2] PAM3: Migration Regulations – Schedules > Sch 2 Visa 186 – Employment Nomination Scheme > About the Employer Nomination scheme > The Employer Nomination Scheme (reissued on 1/01/2016) and; PAM3: Migration Regulations – Divisions – Div 5.3 – General > Reg 5.19 – Approval of nominated positions (employer nomination) > Part B - Criteria applicable to Temporary Residence Transition stream nominations > Nomination under the Temporary Residence Transition stream – Specific criteria > Applicability and overview (reissued on 1/01/2016).

15. In the present case, the Department has provided to the Tribunal a copy of the original application as submitted to the Department. This clearly identifies the nominated occupation as being a human resources technician. However, without wishing to attribute blame for the cause of the error, the Tribunal accepts that this was indeed a genuine error. The Tribunal accepts on the additional documents submitted by the applicant to the Tribunal that the intended nominated occupation was indeed a dental technician, as explained in the applicant’s letter dated 12 May 2015 and as supported by the additional documents submitted to the Tribunal.

16. The Tribunal is also satisfied on the evidence before it that this occupation, dental technician, is listed in ANZSCO (411213) and has the same 4-digit occupation unit group as the occupation carried out by the relevant holder of the subclass 457 visa.

17. Given the above findings, the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

18. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

19. The Tribunal  is satisfied from relevant Department records that the nominator is the standard business sponsor who last identified the relevant holder of a subclass 457 visa in a nomination made under section 140GB of the Act.

20. In response to the Tribunal’s s.359(2) letter requesting evidence to show that it meets all the requirements of r.5.19(3), the applicant has provided several documents to show that the applicant is actively and lawfully operating the relevant business in Australia. Relevantly, the applicant has provided recent Business Activity Statements, financial statements, employment contract and payment summaries and payslips for the nominated worker. The Tribunal also received oral evidence from Ms Hazelman at the hearing regarding the ongoing operations of the business.

21. The Tribunal is also satisfied that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

22. Given the above, the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

23. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

    ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

24. According to Department movement records, the nominated worker was granted his relevant subclass 457 visa on 30 August 2011. The applicant provided to the Tribunal a copy of the relevant employment contracts signed by the nominated worker on 15 November 2011, as well as PAYG payment summaries in relation to the nominated worker for the 2014 and 2015 financial years, which are consistent with him having been paid his full-time wage throughout these periods. At the hearing, Ms Hazelman confirmed that the nominated worker has been employed on a full-time basis since commencing with the business and that none of the work was undertaken outside Australia. The Tribunal accepts this evidence, noting that it is consistent with the relevant employment contract submitted, as well as the PAYG payment summaries in respect of the nominated worker. The Tribunal also accepts that, throughout this period since the nominator was granted his subclass 457 visa, he has been employed in the relevant nominated occupation, dental technician.

25. Given the above findings, the Tribunal is satisfied that the nominated worker has employed full time in Australia in the position for which he holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application and, accordingly, the requirement in r.5.19(3)(c) is met.

    Future employment of the visa holder: r.5.19(3)(d)

26. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

27. The applicant has provided a copy of the relevant employment contract which confirms that the position is a full-time position and will be ongoing. These matters were also confirmed at the hearing in the oral evidence of Ms Hazelman. The Tribunal is satisfied from this evidence that the nominated position will remain open to the nominated worker for at least two years full-time without any express exclusion of the possibility of an extension thereafter.

28. The Tribunal has also considered the financial capacity of the applicant to ensure its ability to meet this commitment to providing two years of full-time employment to the nominated worker. The Tribunal accepts from the most recent financial statements that the relevant business has been profitable over the periods covered in those statements. The Tribunal also notes that the applicant has managed to meet its wage obligations in relation to the nominated worker for some time.

29. Having regard to these matters, the Tribunal is prepared to accept that the applicant possesses sufficient financial capacity to provide two years of full-time employment to the nominated worker in accordance with the proposed terms and conditions of employment.

30. Given the above findings, the requirement in r.5.19(3)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

31. Regulation 5.19(3)(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.

32. The terms and conditions in the employment contract for the nominated worker are consistent with the National Employment Standards. The contract is also stated as being subject to the relevant industry aware, being the Manufacturing and Associated Industries and Occupation Award 2010. The applicant has also provided a copy of of an employment contract for another dental technician that it employs on the same terms.

33. Having regard to the above evidence, the Tribunal is satisfied that the terms and conditions of 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.

34. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

35. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the  applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

36. The applicant has provided a table of relevant training expenses, together with associated receipts. The Tribunal is satisfied on this evidence that the applicant has fulfilled its commitments relating to training requirements.

37. Accordingly, the requirement in r.5.19(3)(f) is met.

    No adverse information known to Immigration: r.5.19(3)(g)

38. Regulation 5.19(3)(g) 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 such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

39. There is nothing before the Tribunal to show any adverse information known about the relevant business or anyone associated with it. As noted earlier, the Tribunal accepts that the Department has since approved the re-submitted application made by the applicant for approval of the nominated occupation of dental technician, indicating that the Department also did not have concerns with the relevant business or anyone associated with it.

40. Accordingly, the Tribunal on the evidence before it that the requirement in r.5.19(3)(g) is met.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

41. Regulation 5.19(3)(h) requires the applicant to have 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.

42. There is nothing before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with laws relating to industrial relations. As noted earlier, the Tribunal accepts that the Department has since approved the re-submitted application made by the applicant for approval of the nominated occupation of dental technician, indicating that the Department also did not have concerns with the applicant’s record of compliance with laws relating to industrial relations.

43. Accordingly, the requirement in r.5.19(3)(h) is met.

    Conclusion

44. 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

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

    Brook Hely
    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.

    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 … 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 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … 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

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:         

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (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 … 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 … 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)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); 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.