1508694 (Migration)

[2015] AATA 3742

1508694 (Migration) [2015] AATA 3742 (26 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Virginia United Football Club Inc

CASE NUMBER:  1508694

DIBP REFERENCE(S):  BCC2015/145126

MEMBER:Glen Cranwell

DATE:26 November 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 26 November 2015 at 1:43pm

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 June 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 14 January 2015. 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)(d)(i) of the Regulations.

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

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.

   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 must identify a relevant person and occupation.

9. The Tribunal finds that the application was made in accordance with the approved form and was accompanied by the fee mentioned in r.5.37.  The application identified the occupation of Sports Development Officer and identified the relevant nominated person as Mr Daniel Medhurst.  The Tribunal is satisfied from evidence available to it, that Mr Medhurst was the holder of a relevant Subclass 457, granted 3 January 2013 on the basis he met cl.457.223(4) and for the nominated occupation of Sports Development Officer.   

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

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

11. 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, as part on the most recent sponsorship approval.

12. Based on Departmental approvals noted by the Tribunal in the ICSE records available to it, the Tribunal is satisfied the applicant was the relevant standard business sponsor who last identified Mr Medhurst in a nomination.  Current financial information provided by the applicant has satisfied the Tribunal that the business continues to actively and lawfully operate in Australia.  

13. 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 in the 3 years immediately before the application.

15. Evidence provided by the applicant demonstrates the nominee has been employed full-time in the nominated occupation for at least the last 2 years whilst holding a 457 visa. 

16. Given the above findings, the requirement in r.5.19(3)(c) is met.

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

17. 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.

18. The Tribunal has had regard to the employment history of Mr Medhurst with the applicant, and the financial capacity of the applicant. The applicant also provided the Tribunal with a revised contract of employment dated 29 May 2015, indicating that the position is ongoing and not limited by any duration. The Tribunal is satisfied the applicant intends to employ Mr Medhurst for at least two years full-time and that there are no terms that expressly preclude the possibility of an extension.

19. 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)

20. 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.

21. The applicant provided a copy of the most recent employment contract for the nominee, which detailed the terms and conditions of employment including duties, payment of salary, leave entitlements and superannuation payments. The applicant also provided a copy of an employment contract for an equivalent Australian worker.  The Tribunal is satisfied the contract for Mr Medhurst provided for terms and conditions that are no less favourable that those provided to an Australian citizen performing equivalent work at the same location.

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

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

23. 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 reasonable to do so.

24. The relevant training benchmarks for an established business were either: recent expenditure to the equivalent of at least 2% of the payroll of the business in payments allocated to an industry training fund that operated in the same industry as the business (Benchmark A); OR recent expenditure to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business (Benchmark B).

25. The applicant’s most recent sponsorship approval occurred on the basis they met Benchmark B.  The applicant has provided a letter from the Club President confirming the amount spent on training, and the Tribunal has satisfied itself the expenditure on the apprentices is greater than 1% of the payroll of the business.

26. On the basis that the delegate who approved the application was satisfied that the applicant met the requirements of r.2.59(d) at the time the application was approved, and in reliance on the evidence provided in relation to continuing expenditure, the Tribunal is satisfied that the training requirements have been met.   

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 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).

29. There is nothing before the Tribunal to indicate there is any adverse information known to Immigration about the nominator or persons associated with the nominator.

30. Accordingly, the requirement in r.5.19(3)(g) is met.

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

31. 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.

32. There is nothing before the Tribunal to indicate the applicant does not have a satisfactory record of compliance with the relevant workplace relations laws.

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

34. 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

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

    Glen Cranwell
    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.