1508356 (Migration)

[2016] AATA 3416

1508356 (Migration) [2016] AATA 3416 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  FIPT PTY. LTD

CASE NUMBER:  1508356

DIBP REFERENCE(S):  BCC2015/551056

MEMBER:Kate Millar

DATE:9 March 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 09 March 2016 at 1:33pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Stares and his partner Ms Jenna Cordiner are the directors of FIPT Pty Ltd (FIPT).  FIPT provides recreational services to people living in a psychiatric hostel, people living in a retirement village and to elderly people in the community.  FIPT has applied for approval of the nomination of a position of Recreation Officer so it can employ Mr Stares in this position.  A delegate of the Minister for Immigration and Border Protection refused to approve the nomination because the delegate was not satisfied that FIPT could employ Mr Stares on a full time basis for at least two years, which is one of the requirements to approve a nomination.

2. FIPT has applied to this tribunal for a review of that decision.  

3. Mr Stares as the director of FIPT appeared before the Tribunal on 9 February 2016 to give evidence and present arguments.  FIPT was represented by its registered migration agent.

4. 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

5. 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 it must meet all of the requirements in r.5.19(4).

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

6. 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, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.   The application was in the approved form, identifies a need for a paid employee to work under the nominator’s direct control and there is nothing to indicate it was not accompanied by the prescribed fee. 

   Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

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

8. FIPT registered for GST on 1 July 2015.  It has an ABN and is incorporated under Australian law.  It has provided business activity statements for the two quarters in which it has been registered for GST and a tax return for the 2015 financial year.  It has provided bank account statements showing business related transactions.  As a result, I find it is actively and lawfully operating a business in Australia and the requirement in r.5.19(4)(b) is met.

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

9. 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.

10. There is nothing to indicate the position is labour hire, and this does not apply.    

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

11. 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 the possibility of an extension.

12. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations which 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 the possibility of an extension. 

13. Of particular concern in this case is the ability of FIPT to meet the wages of the nominee.  The nomination states that the base rate of pay for Mr Stares will be $62,000 per year.  This is also the reported salary in the employment contract provide by FIPT to the tribunal. 

14. The delegate was not satisfied FIPT could employ Mr Stares full time for at least two years because while it commenced trading on 18 July 2014, it was not registered for Goods and Services Tax (GST).  In the absence of other information, the delegate concluded that the business was either not actively operating or operating at a low turnover.

15. A business is required to register for GST purposes once its turnover exceeds $75,000 in a twelve month period, or the income of the business is projected to be above $75,000 in a twelve month period.[1]  FIPT was registered for GST on 1 July 2015.

    [1] >

    In 2015, FIPT had a loss of $1,111.12 after paying Mr Stares wages of $17,000.  Mr Stares says that once he is granted permanent residency his current employer, Mediwest Pty Ltd trading as Romily House Psychiatric Hostel, will pay FIPT for his services instead of employing him directly as a day supervisor.  His income from this employment was $20,565 in the 2015 financial year according to his personal tax return.  I asked Mr Stares why his FIPT was not invoicing Romily House for his work now, and he said he had thought this was happening over the last two years, but his accountant told him as he was an employee of Romily House this could not be part of the business income.  Mr Stares says he has struggled with the accounting requirements, and he had not realised this was not was not income of the business.

16. While I cannot see why Romily House would not make arrangements with FIPT now if this is what they intended to do, Mr Stares provided a letter from the Managing Director of Romily House stating that FIPT will be the main supplier of recreation and wellness for clients of Romily House.  He also provided a letter from the Chief Executive Officer provided a letter stating that Mediwest Pty Ltd will engage with FIPT directly once Mr Stares residency is resolved.   I have no reason to doubt tis will occur.  On the basis of these documents, I am satisfied this will result in approximately $20,000 in revenue for FIPT. 

17. I have considered whether Mr Stares would be employed full time by FIPT when he currently works approximately 16 hours a week as a direct employee of Romily House, but again have no material that would contradict Mr Stares’ assertion and the letter from Romily House stating that FIPT will be engaged instead of Mr Stares in the future.

18. There is also a purported contact from Beaumont Retirement Village regarding continuing to engage FIPT in providing services however this does not have the usual hallmarks of a contract, including the legal entity with FIPT is contracting with and the ACN or ABN of Beaumont Retirement Village.  Mr Stares said he runs wellness classes at Beaumont Retirement Village and is paid in cash according to the number of people who attend. 

19. Mr Stares said the other sources of income for FIPT are running program for Romily House, income for individual clients and running programs for Beaumont Retirement Village.  He provided a great deal of other material relating to other ventures, however these were generally speculative at this stage and I was not assisted by the volume of material that relate to potential areas of work.  He says he has plans to do classes at Claremont Community centre as there are clients who would like to attend sessions but his current class is only for residents of Beaumont Retirement Village.  He provided a copy of his enquiry about hiring the Tuart Community Hall.

20. The other source of income for the business is delivering an existing fitness program for the Volunteer Taskforce.  The Volunteer Taskforce determines the location.  He says this year he has been contracted to deliver two separate ten week programs, and this pays $120 to the instructor delivering the program per week. 

21. In both of the Business Activity Statements provided by FIPT, the sales were less than the amount paid in wages.   In the quarter 1 July 2015 to 30 September 2015, the income of the business was $13,380 and the amount paid in wages was $15,000.  In the quarter 1 October 2015 to 31 December 2015, the income was $14,100 and the salary was $15,000.   On being asked how the business will afford to pay him, he said that he had spent money on accounting and marketing. 

22. Mr Stares said that FIPT has been bringing in more individual clients and has a total income of $96,800.  He said individual clients from Romily House result in an income of $43,200, the Romily House wellness course provides an income of  $15,600 and the Beaumont Retirement Village course provides an income of $15,600.

23. Mr Stares provided documents for a business loan with the ANZ Bank, and at said hearing that the grant of this loan, expected that day, would support the viability of the business.  He was asked to provide information showing the approval of the loan, however this has not been provided. 

24. I am satisfied that FIPT has income from individual clients, Romily House and Beaumont Retirement Village and that income is reflected in the financial statements and tax return of FIPT as approximately $65,960.  This does not include income from Mr Stares’ employment with Romily House of approximately $20,000.  I am satisfied the loss incurred in the 2015 financial year resulted from the payment of director fees and wages of $54,000 and with the addition of the salary from Romily House would meet these costs. 

25. Mr Stares has been working in this area since 2011, and has built an increasing amount of private client work. This is supported by payments appearing in the business bank account for individual clients.   FIPT has low overhead costs, with the majority of expenses other than director’s fees and wages being for Mr Stares’ car and accounting costs.

26. While this is a marginal case, with many unsatisfactory aspects to the documents before me, I am satisfied that FIPT will employ the nominee Mr Stares for at least two years on a full time basis. 

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

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

28. 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. Mr Stares gave evidence that he will be paid in excess of the required salary for a recreation officer.  The employment contract states terms and conditions are in accordance with the National Employment Standards in the Fair Work Act 2009, and as a result the requirements of r.5.19(4)(e) are met.

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

29. 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 such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.  There is no adverse information before me about FIPT or a person associated with FIPT. 

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

30. 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.

31. Mr Stares provided payslips to himself from the company.  The dates of payment and the amounts did not match payments made from the company bank accounts.  He said he had been taking his car payment and cash form the company bank account payments.  He said he has discovered the error of his ways though discussing this with his accountant, and in the last two months his payslips will reflect actual payments.  He said the previous payslips were an attempt to reconcile his previous cash withdrawals.

32. I said I was concerned he had provided misleading documents as the amount on the payslips had not been deducted from the company bank account.  In response to whether the payslips were accurate or false, he said they were accurate.  On being asked to show how the amounts on the payslips corresponded to a withdrawal from the company bank accounts, he said the last two months these payments would correspond.

33. There are obligations in the Fair Work Act 2009 for an employer to keep records (s.535) and for payslips to be provided to employees with prescribed information (s.536). Regulation 3.44 of the Fair Work Regulations 2009 requires an employer to keep records that are not false or misleading, and this is a civil remedy provision. Regulation 3.33 of the Fair Work Regulations 2009 sets out what records must be kept for payslips.

34. I asked Mr Stares how providing payslips for salary that was not, in fact, paid would comply with workplace relations laws.  In a written submission provided after the hearing, his representative states that these payslips were sent to the tribunal in error after the new accounting software used by FIPT automatically generated these payslips.  The representative said the payslips were forwarded to him by his client, who had omitted to say not all the documents were to be provided to the tribunal.

35. While this explanation tests credulity, it is not for me to conduct an investigation into compliance with workplace relations laws, and I have concluded that unless there was information before me to show that there has been a recorded lack of compliance with workplace relations laws, this criteria will be met.

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

36. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision, and as they apply to FIPT require:

    ·     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

    ·     The position 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

    ·     A regional certifying body has advised the Minister about certain matters relating to the position.

37. All of Western Australia is regional Australia (IMMI 13/049), and both the position and business are located in regional Australia. The required regional certification was provided to the Department.  I am satisfied that in order to operate FIPT requires a paid employee under its direct control. 

38. The work is with people with a mental illness and the elderly, and I accept this is a niche market where few people have the skills necessary for the position.  Much of the business is personal to Mr Stares, and I accept the position could not be filled by a locally resident Australian citizen or permanent resident. 

39. Given Mr Stares currently works as a day supervisor at Romily House and runs fitness and wellness classes, I carefully considered whether the position was for a recreation officer or a fitness instructor.   I have considered the tasks involved in these roles listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).  On balance I am satisfied he undertakes a recreation officer role with the community comprised of Romily House residents as he is involved in identifying the needs of this community, organising recreational events and activities, and providing support and recreational activities for individual clients.  He does not have the level of qualifications, being a bachelor degree, generally required for the position of recreation officer as listed in ANZSCO.  He has a certificate of Higher Education in health related exercise and fitness in 2006 from Leeds Metropolitan University, a Diploma in Allied Science (Sports Studies) in 2003 from Grimsby College.  In looking at other positions such as fitness instructor, welfare support worker or aged and disabled carer, the tasks Mr Stares undertakes do not readily fit in these alternative roles.  On balance, I am satisfied the tasks of the position correspond to a recreation officer which is a skill level 1. 

40. While there are many unsatisfactory aspects to this application, there is no one factor that has not been met.  Therefore on the findings above, FIPT meets the requirements of r.5.19(4) for approval of the nomination of the position in Australia.

    DECISION

41. 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)

    …

    (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).