1512731 (Migration)

1512731 (Migration) [2016] AATA 3947 (31 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sahib Transport Pty Ltd
CASE NUMBER:  1512731
DIBP REFERENCE(S):  BCC2015/1973388
MEMBER:Kate Millar
DATE:31 May 2016
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.

Statement made on 31 May 2016 at 9:41am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Sahib Transport Pty Ltd (Sahib Transport) provides transport services across Australia. It has a turnover approaching $14M in the 2015 financial year. It applied for approval of a nomination of Mr Jagroop Gill as a Transport Company Manager on 9 July 2015.
This application was refused by a delegate of the Minister for Immigration and Border Protection on 31 August 2015 because the delegate was not satisfied it that the position was genuinely required within the business.
This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 August 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
Mr Gurpreet Singh, a director of Sahib Transport, appeared before the Tribunal 15 March 2016 to give evidence and present arguments.
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
The applicant applied for approval on 9 July 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For visa applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The issue in the present case is whether Sahib Transport meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The nomination must comply with the prescribed process
Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73.
Sahib Transport made the nomination in accordance with the process in r.2.72, specifically that:
· The person is nominating an occupation under s.140GB(1)(b): r.2.73(1A)(a);
·     It identifies in the nomination a holder of, or an applicant or a proposed applicant for, a Subclass 457 visa as the person who will work in the occupation: r.2.73(1A)(b);
·     The nomination was made using the approved form and fee;
· Sahib Transport identified the nominee in the nomination: r.2.73(4)/(4A) and r.2.72(5);
·     It has provided the certification as to whether or not the person has engaged in conduct that constitutes a contravention of s.245AR(1) of the Act: r.2.73(4B); and
·     The nomination includes the location at which the occupation will be carried out, and the name and 6 digit ASCO/ANZSCO code if the applicant is a standard business sponsor, or the name of the occupation in the work agreement if applicant is a party to the work agreement: r.2.73(4)/(4A).
For these reasons the requirements of r.2.72(3) are met.
Nominator is a standard business sponsor or party to a work agreement
Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement other than a Minister. Sahib Transport was approved as a standard business sponsor on 28 June 2013 and r.2.72(4) is met.
Identification of the nominee
Regulation 2.72(5) requires that the applicant identify in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. The nomination identifies Mr Gill.
Requirements for existing Subclass 457 visa holders
The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position.
As the nominee is not the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) do not apply.
Information about the nominated occupation
Regulation 2.72(8A) requires the applicant to provide the following information as part of the nomination m(among other alternatives):
·the name of the occupation and the corresponding 6-digit ANZSCO code if there is one;
·the location at which the nominated occupation is to be carried out.
Sahib Transport provided the job title Transport Company Manager. They did not provide the ANZSCO code, but this position exists in ANZSCO with the code 149413. The application specified the location as Bibra Lake Western Australia.
For these reasons the requirements of r.2.72(8A) are met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard 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 the tribunal about Sahib Transport or a person associated with Sahib Transport.
Specified occupation
Subclause 2.72(10)(aa) as it applies in this case, requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in instrument IMMI 09/125. In certain circumstances this instrument may also require the nomination of an occupation to be supported in writing to the Minister, by a specified organisation before the nomination can be approved: r.2.72(10)(b).
The position of Transport Company Manager appears in this instrument, and the requirements of r.2.72(10)(aa) are met. The requirement to be supported by a specified organisation does not apply.
Terms and conditions of employment
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
A set of terms and conditions of employment is less favourable than another set if the earnings provided for in the first set are less than those in the other set and there is no substantial contrary evidence that the first set is not less favourable than the other set: r.2.57(3A). ‘Earnings’ is defined in r.2.57A and includes the person’s wages; amounts applied or dealt with in any way on the person’s behalf or as the person directs; and the agreed money value of non-monetary benefits. Non-monetary benefits are benefits other than an entitlement to a payment of money to which the employee is entitled in return for the performance of work and for which a reasonable money value has been agreed by the employee and the employer. Reimbursements are specifically excluded, as are payments the amount of which cannot be determined in advance, and certain contributions to a superannuation fund.
In circumstances where there are no Australian citizens or permanent residents performing equivalent work at the same location, the person must determine the terms and conditions of employment that would otherwise be provided by a method specified in instrument IMMI 09/113: r.2.72(10AA).
These requirements do not apply if the annual earnings of the nominee are equal to or greater than those specified in the written instrument IMMI 13/028: r.2.72(10)(AB). This is $250,000 and does not apply this case.
In the application, Sahib Transport stated there are no Australian employees in the organisation performing equivalent work to the nominated person because this is a new position in Western Australia. However the organisation chart showed transport manager positions in New South Wales and South Australia. The New South Wales position is held by Kuldeep Dhillon. I do not have any information before me to show whether Mr Dhillon is an Australian citizen or permanent resident. Sahib Transport was asked to provide PAYG payment summary and payslips for Mr Dhillon. The PAYG payment summary for Mr Dhillon shows gross payments of $50,769. The base rate of pay specified in the application for the nominee is $55,000. I asked for payslips for the nominee, however was advised that as the nominee is a contractor these are not available. The submissions of the representative are that the terms and conditions for the nominee and the existing transport company manager are the same.
As I am not satisfied Mr Dhillon is an Australian citizen, and does not work in the same location, I also looked at the method provided by IMMI 09/113. This requires an examination of whether there are any fair work or state industrial instruments or transition instruments that apply. The relevant fair work instruments such as the Road Transport and Distribution Award 2010 [MA000038] relate to drivers and not necessarily to managers in the driving industry. Likewise the state instruments, such as the Transport Workers (General) Award No. 10 of 1961 relate to those who drive the vehicles and not the managers.
As result, the IMMI 09/113 requires an examination of “relevant information” which includes information from employer organisations and unions, labour market data included on for, example, Job Outlook, the Australian Bureau of Statistics and job advertisements.
Jobs Outlook provided a median gross weekly income for a transport service manger of $1,300 per week ($67,600 per annum).
Sahib Transport provided a report in which it is stated that a transport company manager position in Sydney is advertised at $5,000 to $60,000, and another in Perth advertised for $65,000. In Brisbane it is advertised with a salary of $60,000 to $70,000. Sahib Transport argues the higher end of the pay scale relates to positions at large logistics companies who have experience in other management roles. It submits the salary of $55,000 is reasonable given the size of the business and the level of responsibility of the position.
On balance, I accept that this is the case and that the amount of $55,000 per annum is equivalent to what an Australian citizen or permanent resident would earn in this position.
The contract for the nominee contains terms and conditions including hours of work, leave, termination and redundancy consistent with the National Employment Standards. On balance I consider the terms and conditions of employment are no less favourable than those that would be provide to an Australian citizen or permanent resident.
For these reasons the requirements of r.2.72(10)(c) are met.
Base rate of pay
Regulation 2.72(10)(cc) requires the base rate of pay under the terms and conditions of employment that are, or would be, provided to an Australian citizen or permanent resident will be greater than the temporary skilled migration income threshold (TSMIT) specified in the instrument IMMI 13/038. The TSMIT as specified in IMMI 13/028 is $53,900. The base rate of the position is $55,000 and as this is greater than the TSMIT the requirements of r.2.72(10)(cc) do not apply.
Certification under r.2.72(10)(e)
As part of the nomination, Sahib Transport must certify various matters in writing: r.2.72(10)(e). As it applies to this application, these include that:
·the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO;
·the nominated occupation is with a business, or an associated entity, of the applicant; and
·the qualifications and experience of the nominee are commensurate with those specified for the occupation in the ANZSCO.
Sahib Transport certified these matters as a part of its application, and the requirements of r.2.72(10)(e) are met.
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The delegate was not satisfied this requirement was met because she was not satisfied the business was sufficiently established in Western Australia to warrant this position in Western Australia.
Mr Singh gave evidence as the director of the business. He provided financial statements showing Sahib Transport had a turnover of over $13M in 2015 and over $11M in 2014. He expects his turnover in 2016 will be over $20M. Mr Singh said the company provides services across Australia, with their biggest leg being between Melbourne and Perth. He said there are complex compliance issues in this leg as, for example, on the leg from Melbourne to Adelaide they can only have two trailer on the truck but form Adelaide they can have three. The trailers then need to be split again outside Perth, and compliance with driving hours checked as well as the trucks being inspected. Mr Singh said he needs the position in Perth because he cannot handle this by himself. They have a depot in Perth, and he provided a copy of a license to use the depot from the head lessee. He said this is difficult to run over the phone, due to the need to check drivers log books and checking the maintenance of the vehicles.
Mr Singh said the other need for a position in Perth is for a person to liaise with customers about estimated times of arrival and to try to get back load for the truck on the return leg. The other requirements are to secure the yard and to arrange maintenance for the trucks. Mr Singh said he also wants the position to check loads on truck to ensure they are properly secured. After the hearing Mr Singh provided a list of his clients in Perth consistent with his oral evidence, with some additions as he said he could not remember all of the names of the customer.
I accept the position is genuine in light of the size of the business, the regulatory environment, the license to use a property in Western Australia and the number of clients in Western Australia.
For these reasons the requirements of r.2.72(10)(f) are met.
Employment under contract
Regulation 2.72(10)(h) requires that the applicant will engage the nominee only as an employee under a written contract of employment and give a copy of that to the Minister.
Sahib Transport has given a copy of the employment contract for the nominee to the Minister, and the requirements of r.2.72(10)(h) are met.
Labour Market Testing
Section 140GBA requires a standard business sponsor who nominates an occupation and associated position, to fulfil the ‘labour market testing condition’ unless the major disaster or skill and occupational exemptions in s.140GBB-140GBC apply, or the Minister has determined it would be inconsistent with a specified international trade obligation.
The exemption in s140GBC applies if the nominated position requires (among other things) a diploma or at least 3 years of relevant experience and is specified by the Minister. IMMI13/137 specifies all positions that are a skill level 2. The position of Transport Company Manager requires an associate degree, advanced diploma or diploma or at least 3 years relevant experience and is a skill level 2.
As a result the labour market testing provisions do not apply.
For the reasons given above, the applicant meets all the applicable criteria for the nomination to be approved.
DECISION
The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Kate Millar
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2016] AATA 3947

31 May 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction