1502904 (Migration)

[2016] AATA 3249

1502904 (Migration) [2016] AATA 3249 (17 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Williams Electrical Service Pty Ltd

CASE NUMBER:  1502904

DIBP REFERENCE(S):  BCC2014/3231071

MEMBER:Christopher Smolicz

DATE:17 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 17 February 2016 at 10:17am

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 10 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 27 November 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) of the Regulations.

5. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

   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.

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

8. 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.

9. The Tribunal has had regard to the departmental file and finds that the application was made in accordance with the approved form (1395) 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). The application for approval nominated Mr Eugene Francis Fitzpatrick (the visa applicant) for the nominated position of Electrician (General) ANZSCO 3411111. According to departmental records Mr Fitzpatrick was granted a subclass 457 visa on 1 November 2012 on the basis of satisfying subclause 457.223(4) of schedule 2.  The Tribunal finds that the requirements of sub-paragraph 5.19(3)(a) are met.

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

10. 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.

11. Williams Electrical was most recently approved as a Standard Business Sponsor on 7 January 2016 in relation to the Subclass 457 visa application lodged by Mr Fitzpatrick. Mr Fitzpatrick commenced employment with the nominator on 26 September 2012. Accordingly, based upon this evidence the Tribunal finds that the applicant, Williams Electrical, was the Standard Business Sponsor who last identified Mr Fitzpatrick as the relevant Subclass 457 visa holder in a nomination under s.140GB.  As a result, the Tribunal finds that the requirements of sub-paragraph 5.19(3)(b)(i) have been met.

12. The Tribunal has had regard to various business and financial records provided in support of the application. By way of background Mr Peter Beveridge is the Managing Director of Williams Electrical a privately owned electrical contractor servicing the Western Australian commercial and industrial sectors. Currently, the company employs about 98 full time employees who are Australian citizens. The company also employs about three full time foreign employees. In the 2014 financial year the gross profit from trading was $6,743,231. In the 2015 financial year the gross profit from trading was $6,852,293.

13. The Tribunal has had regard to written submissions made by Mr Beveridge and various business and financial records which include ASIC certificate of company registration, ATO Goods and Services Tax (GST) Notification of Registration, Certificate Membership (NECA), current Business Activity Statements and the 2014 and 2015 profit and loss statements. The Tribunal is satisfied that the applicant 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. Given the above, the requirement in r.5.19(3)(b) is met.

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

14. 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.

15. This application was lodged on 27 November 2014. According to the nominees’ employment contract dated 20 September 2012, he commenced employment with Williams Electrical on 26 September 2012. The Tribunal is satisfied that the nominee as a 457 visa holder, has been employed full time in Australia in the position for which he holds a Subclass 457 visa for at least two out of the three years immediately before the nomination application. Given the above findings, the requirement in r.5.19(3)(c) met.

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

16. 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.

17. The Tribunal has had regard to the nominee’s employment history and the signed offers of employment dated 20 September 2012 and 28 October 2013 which provide for a 5 year period of employment. The Tribunal has also had regard to that most recent employment agreement dated 17 September 2015 which refers to Williams Electrical Services “Enterprise Agreement 2013” and is satisfied that the applicant will employ Mr Fitzpatrick for at least two years full-time and that there are no terms that expressly preclude the possibility of an extension. 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)

18. 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.

19. It was submitted that Williams Electrical employs a number of Australian citizens as electricians under the Williams Electrical Services Pty Ltd Enterprise Agreement 2013. The current base hourly rate for an electrician is under the agreement is $36.55 per hour.

20. The Tribunal has had regard to Mr Fitzpatrick’s most recent employment contract dated 17 September 2015 which details the terms and conditions of employment including, position duties, salary, leave entitlements and superannuation. The Tribunal has also had regard to the visa applicant’s payslips and PAYG payment summary statements for the 2013, 2014 and 2015 financial years.

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

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

22. 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.

23. The Tribunal notes that the evidence indicates that Williams Electrical has been approved as a standard business sponsor for some time. The Tribunal has been provided with evidence of an earlier approval as a standard business sponsor on 1 November 2012.  As stated above the applicant’s most recent standard business sponsorship was approved on 7 January 2016.

24. As the nominating company has traded in Australia for 12 months or more, the requirements of r.2.59(d) are relevant in the present case. These require that the company meet the benchmarks for the training of Australian citizens and permanent residents specified in the relevant instrument. The relevant instrument (IMMI 13/030) specifies the training benchmarks for an established business, as follows:

    A) 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.

    OR

    B) 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.

25. The applicant claims to meet Benchmark B through providing training to employees of the business. The Tribunal notes that expenditure that can count towards the training benchmark includes employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business. In support of this evidence the Tribunal was provided Williams Electrical training summary, apprentices contracts and payment summaries for the 2014 and 2015 financial years. According to the 2015 profit and loss statement gross payroll expenditure was $7,606,512 with $720,730 superannuation contributions totalling $8,327,242. The total expenditure on apprentices was $126,305.

26. Having considered the profit and loss statements referred to above, the Tribunal is satisfied that the payments to the nominated apprentices alone accounts for more than the equivalent of 1% of the payroll. The applicant has also provided additional apprentice registers which establish that the nominator is heavily committed to the training of apprentices since 2013.

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

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

28. 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly, the requirement in r.5.19(3)(g) is met.

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

29. 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. The Tribunal is satisfied with the applicant’s record of compliance with workplace relation laws in Australia. Accordingly the requirements of r.5.19(3)(h) are met.

30. 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

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

    Christopher Smolicz
    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.