1503640 (Migration)

[2016] AATA 3395

1503640 (Migration) [2016] AATA 3395 (26 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  PreviousNext Pty Ltd

CASE NUMBER:  1503640

DIBP REFERENCE(S):  BCC2014/2447345

MEMBER:Rania Skaros

DATE:26 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 26 February 2016 at 11:29am

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 11 March 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 26 September 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)(f) of the Regulations because the delegate was not satisfied that the applicant demonstrated it met the requirements relating to training.

5. The applicant was represented in relation to the review by its registered migration agent.

6. In response to a request to provide further information demonstrating it meets the requirements in r.5.19(3), the Tribunal received various documents, which are relevantly referred to further below.

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 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)

9. 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.

10. The Tribunal is satisfied on the material contained in the Department’s file that the application was made in accordance with the approved form and accompanied by the fee prescribed in regulation 5.37. 

11. The application identified Ms Pamela Barone (the visa applicant) for the nominated position of Multimedia Specialist ANZSCO 261211. Departmental records indicate that Ms Barone was granted a subclass 457 visa on 5 March 2012 on the basis of satisfying cl.457.223(4) of Schedule 2. 

12. Given the above, the Tribunal finds that the requirement in r.5.19(3)(a) is met.

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

13. 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.

14. The applicant was most recently approved as a Standard Business Sponsor on 14 August 2015. The previous sponsorship approval was on 10 February 2012 for a period of 3 years.  Departmental records indicate that the applicant was the sponsor who last identified Ms Barone, who is the relevant 457 visa holder, in a nomination made under s.140GB..

15. The Tribunal is accordingly satisfied that that the requirement in r. 5.19(3)(b)(i) is met.

16. The applicant has provided to the Tribunal information evidencing its current operations, including business registration documents, activity statements, financial reports, company tax returns, organisational chart and wage records. The Tribunal is satisfied on the material before it that the applicant is actively and lawfully operating a business in Australia. Accordingly, the Tribunal finds that the requirement in r. 5.19(3)(b)(ii) is met.

17. Given the above, the Tribunal finds that the requirements in r.5.19(3)(b) are met.

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

18. 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.

19. The material before the Tribunal indicates that Ms Barone commenced employment with the applicant, as the holder of a 457 visa, since March 2012. The Tribunal is accordingly satisfied that the nominee has been employed full time in Australia in the position for which she holds a Subclass 457 visa for at least 2 of the 3 years immediately before the nomination application.

20. Given the above, the Tribunal finds that the requirement in r.5.19(3)(c) is met.

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

21. 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.

22. The Tribunal has had regard to Ms Barone’s employment history and to the terms and conditions of Ms Barone’s employment as set out in the employment contracts dated 23 February 2011 and 1 March 2015. The PAYG payment summaries provided for Ms Barone for the last four financial years indicate that Ms Barone has been employed by the applicant on a full time basis since 2011. The employment contract also indicates that the position is full time and ongoing. The Tribunal has also had regard to the applicant’s declaration in the nomination form indicating that it will provide full time employment to Ms Barone for a period of at least two years. The Tribunal is satisfied on the totality of the evidence that the applicant will employ Ms Barone for at least two years full-time and on terms that do not expressly preclude the possibility of an extension.

23. 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)

24. 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.

25. The employment contract for Ms Barone indicates that her current base salary is $115,000. The Tribunal has had regard to all the terms and conditions of employment as set out in the employment contract and had regard to the terms and conditions of employment set out in the contract for Mr Paul Wallace, a permanent resident who used to perform the same work at the same location and whose salary was $100,000. The Tribunal has considered the representative’s submissions and supporting documentation in relation to how Ms Barone’s salary was determined. The Tribunal is satisfied on the totality of the evidence that the terms and condition applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. Accordingly, the requirement in r.5.19(3)(e) is met.

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

26. 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.

27. The applicant was most recently approved as a standard business sponsor on 14 August 2015. It was previously approved as a sponsor on 10 February 2012 for a period of 3 years. 

28. Departmental records indicate that the applicant was approved as a standard business sponsor on the basis of meeting training benchmark B (IMMI 13/030), which required the applicant to demonstrate 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.

29. The applicant claims to have fulfilled the training commitment made in relation to meeting the training requirement and has provided documents, including a detailed transaction history of the costs incurred on training and conference attendance by staff for the period from February 2015 to December 2015. The information indicates that the expenditure on training for that period was $30,874. The Tribunal also has before it a large volume of receipts, invoices, bookings and correspondence relating to courses delivered and conferences attended by staff.

30. The business’ financial reports and activity statements consistently indicate that the applicant’s gross annual payroll is about $1.1 million. The expenditure on training in the 11 months period from February 2015 to December 2015 was $30,874, which the Tribunal is satisfied is more than the equivalent of 1% of the applicant’s payroll.

31. On the evidence, the Tribunal is satisfied that the applicant fulfilled the commitments made relating to meeting the training requirements and complied with the applicable sponsorship obligations relating the training requirements during its most recent period of approval as a sponsor.

32. Given the above, the requirement in r.5.19(3)(f) is met.

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

33. 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. 

34. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with the immigration laws of Australia. The Tribunal is accordingly satisfied that the requirement in r.5.19(3)(g) is met.

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

35. 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.

36. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff. The Tribunal is accordingly satisfied that the requirement inr.5.19(3)(h) is met.

37. 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

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

    Rania Skaros
    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.