1515121 (Migration)

[2016] AATA 3732

1515121 (Migration) [2016] AATA 3732 (13 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sunshine Investments International Pty Ltd

CASE NUMBER:  1515121

DIBP REFERENCE(S):  BCC2015/1572524

MEMBER:Glen Cranwell

DATE:13 April 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 13 April 2016 at 12:48pm

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 4 November 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 2 June 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 Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations.

5. The applicant appeared before the Tribunal on 8 April 2016 to give evidence and present arguments.

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 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.

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

8. 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. The evidence before the Tribunal is that that the application for approval was made on the approved form and was accompanied by the prescribed fee.

9. The delegate was not satisfied that the applicant had a need for a paid employee to work in the position of Corporate General Manager (ANZSCO 1112-11). Yet the Department granted the nominee a Subclass 457 visa to work in the position, and the evidence before the Tribunal is that the nominee has in fact been working in the position since 9 March 2015. In these circumstances, the Tribunal accepts that the nominator has identified a need to employ a paid employee to work in the position under its direct control. 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)

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

11. The applicant’s accounts indicate that it is actively and lawfully operating a business in Australia and directly operates that business. The requirement in r.5.19(4)(b) is thus met.

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

12. 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. There is nothing before the Tribunal to indicate that the applicant is involved in hiring of labour to other unrelated businesses. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

13. 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 extension of the employment. The applicant provided the Tribunal with a revised contract of employment stating that the nominee’s employment will be for a period of 3 years on a full-time basis. The possibility of extension was not expressly excluded. Accordingly, the requirement in r.5.19(4)(d) is met.

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

14. 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.

15. The nominee’s base salary is $188,000. The Tribunal considers that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. Accordingly, the requirements of r.5.19(4)(e) are met.

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

16. 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).

17. In this case, there is no known adverse information relevant to the applicant or a person associated with the applicant within the meaning of r.2.57(2) or (3). Accordingly the requirements of r.5.19(4)(f) are met.

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

18. 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.

19. There is no evidence before the Tribunal to indicate 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. In the circumstances, the requirements of r.5.19(4)(g) are met.

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

20. 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 either:

    ·    the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 14/049), and certain specified training benchmarks will be met (specified in IMMI 13/020); or

    ·    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 ANZCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.

21. In this case, a regional certifying body has not advised the Minister about certain matters relating to the position. As a result, one of the requirements of r.5.19(4)(h)(ii) has not been met and the nomination must meet the requirements of r.5.19(4)(h)(i) to be approved.

    The position

22. The Tribunal has considered whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in the relevant instrument. The Minister has specified the occupation Corporate General Manager in the relevant instrument by identifying the ANZSCO code of that occupation, 1112-11.  The contract of employment describes the position as Deputy General Manager, and the Tribunal accepts that the tasks to be carried out in the position correspond to the ANZSCO description of the occupation of Corporate General Manager, which is an approved occupation.  The Tribunal also notes that the Department has previously found the position to be genuine in the context of the nominee’s Subclass 457 visa application.

    Training benchmarks

23. Under the ‘training benchmarks’ in the relevant instrument, an applicant is “not required to demonstrate that they are an industry leader in training”, but the applicant is “required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents and is related to the purpose of the business”: IMMI 13/030.

24. The following expenditure is specified:

    A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.

    OR

    B) 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.

25. At the Tribunal’s request, the applicant provided evidence of its total payroll and training contributions (in the form of contributions to TAFE NSW scholarship funds) for the following periods:

Financial year	Total payroll	Training contribution
1 July 2014 to 30 June 2015	$183,681.64	$4,000
1 July 2015 to 8 April 2016	$322,232.22	$9,000

1. As the training expenses are greater than 2% of the payroll, the Tribunal accepts that the applicant meets Benchmark B as set out in the relevant instrument. 

2. 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

4. 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.

   …

   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).