1504304 (Migration)

[2016] AATA 3039

1504304 (Migration) [2016] AATA 3039 (11 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TAXI TRUCK WA 2014 PTY LTD

CASE NUMBER:  1504304

DIBP REFERENCE(S):  BCC2014/2785828

MEMBER:Kate Millar

DATE:11 January 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 11 January 2016 at 12:01pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    Taxi Trucks 2014 WA Pty Ltd (Taxi Trucks) operates a truck business that primarily delivers furniture for retail furniture stores.  Taxi Trucks wants to employ Ms Navdeep Kaur as a transport company manager, and applied for approval of a nomination of this position on 21 October 2014.  A delegate of the Minister for Immigration and Border Protection refused to approve the nomination, as the delegate found that it did not meet the requirement to provide terms and conditions that are no less favourable than would be provided to an Australian citizen or permanent resident.  In coming to this conclusion, the delegate found the employment contract between Ms Kaur and Taxi Truck provides for 9% superannuation when the superannuation guarantee levy is 9.5% for Australian citizens and permanent residents.

2.    Taxi Trucks applied to this tribunal for a review of this decision.  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 and of these Taxi Truck applied in the 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.    Mr Peter Piggott appeared before the tribunal on 3 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence Ms Navdeep Kaur.  Mr Pigott said the director of Taxi Trucks, Ms Elle McPherson is his wife but he runs the business and had the authority to speak on behalf of Taxi Trucks. 

4.    Taxi Trucks was represented in relation to the review by its registered migration agent. The representative attended the tribunal hearing.

5.    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

6.    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.

7.    It is useful to set out some of the background to the company.  Mr Piggott said he originally operated the business as a sole trader.  At that time he had one truck doing deliveries for Fantastic Furniture and another operator had three trucks.  He took over hire purchase of all of the other operator’s trucks.  At that time Fantastic Furniture put their delivery service out for tender and the other operator agreed he would not tender.  Ms McPherson, as the director of Taxi Trucks,  took over the leases of the truck and then bought the trucks from him. 

8.    Ms McPherson’s failed to attend the hearing, and Taxi Trucks failed to provide some of the information that I requested, such as a tax returns, annual PAYG payment summary for all employees, and Business Activity Statements.  The financial statements are not signed and do not include any information on the nature of the expenses of the company.  The PAYG payment summary for Ms Kaur is not dated.  Taxi Trucks did provide other evidence such as an Australian Taxation Office statement that shows regular payments including payment of PAYG withholdings and for GST.

1. Mr Piggott gave evidence to the best of his ability, and did not appear to embellish or seek to obscure the business arrangements for the company. He provided detailed information about he tasks of running the business that was consistent with the evidence provided by the visa applicant Ms Kaur. 

2. As a result, while I am concerned about the documents that were not provided, I am satisfied Mr Piggott’s evidence is accurate and that I can rely on his evidence.

The application is compliant: r.5.19(4)(a)

1. 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. 

2. Taxi Trucks runs the business of delivering furniture, and Mr Piggott said another company owns the trucks.  The labour for the trucks is casual.  Taxi Truck submitted a complying application which identified the need for a paid employee to work in the position under Taxi Truck’s direct control.   

3. 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)

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

2. Mr Piggott said he owned and operated Taxi Trucks as a sole trader until he wife Ms McPherson took over.  The certificate of incorporation shows Taxi Trucks was incorporated on 6 August 2013.  He said Ms McPherson owns the business because she injected the capital, but he was running the business. He said he was behind with tax returns and had not prepared one for Taxi Trucks.  He provided financial statements but these are not signed.  He did not provide Business Activity Statements as requested, or the annual PAYG payment summary for the business.  He did provide Ms Kaur’s PAYG payment summary.

3. Taxi Trucks provided its certificate of registration as a company.  Taxi Trucks has an Australian Business Number and provided a Australian Taxation Office statement from February 2015 to October 2015 showing payments, credits and PAYG tax withheld and paid to the Australian Taxation Office.

4. Taxi truck also provided remittance advices from its main customers, Furniture Bazaar., Super Amart and Fantastic Furniture.  This was consistent with Mr Piggott’s oral evidence about his main customers at hearing. 

5. While some of the evidence is not satisfactory, such as the unsigned financial statements, lack of a tax return and failure to provide business activity statements, on balance I am satisfied Taxi Truck is lawfully and actively operating a business in Australia and directly operates the business

6. Accordingly, the requirement in r.5.19(4)(b) is met.

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

1. 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.  Taxi Truck’s business activities do not include labour hire, and this requirement does not apply.

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

1. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude extension of the employment.

2. Taxi Trucks provided an employment contract dated 26 October 2015.  This does not expressly exclude extension of employment.  The employment contract also does not state that the employment is for at least two years full time. 

3. Ms Kaur has worked for the company for approximately 18 months, and Mr Piggott says she does her job well and is diligent.  As a result, I have no reason to doubt she would be employed for at least two years full time.    

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

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

1. 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.

2. Taxi Trucks provided an updated contact that includes superannuation at the rate set by legislation and annual leave entitlements consistent with the National Employment Standards. 

3. The salary is $52,000 per annum.  This is at the lower end but within the band on Payscale[1] for Fleet Managers or Transportation Managers. 

   [1] Accessed 29 December 2015

4. I am satisfied that the terms and conditions of the position 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 location, and the requirements of r.5.19(4)(e) are met.

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

1. 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 me to show adverse information is known to Immigration.

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

1. 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 me to show Taxi Trucks does not have a satisfactory record of compliance with laws relating to workplace relations.

Tasks of the position genuine need for the position and training benchmarks r.5.19(4)(h)

1. 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:

   ·     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.

2. The position and business are located in Western Australia, all of which is classified as regional Australia (IMMI 11/058).  There is a genuine need for a paid position as a transport company manager under the nominator’s direct control as Ms McPherson does not work in the business and Mr Piggott wants to work less and he also works for Harvey Norman.  The position of Transport Services Manager has an ANZSCO skill level 2.  Taxi Trucks provided a certificate from the regional certifying body, Skilled Migration WA.  Accordingly the requirements of r.5.19(4)(h) are met.

3. 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

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

Kate Millar
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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).