Aeon Technology Services Pty Ltd (Migration)

[2019] AATA 3555

Aeon Technology Services Pty Ltd (Migration) [2019] AATA 3555 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Aeon Technology Services Pty Ltd

CASE NUMBER:  1700569

DIBP REFERENCE(S):  BCC2016/1843223

MEMBER:Nicola Findson

DATE:26 June 2019

PLACE OF DECISION:  Perth

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

Statement made on 26 June 2019 at 10:09am

CATCHWORDS

MIGRATION – Nomination – Direct Entry Nomination stream – genuine position – niche industry – business growth – genuine need – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 360(2)
Migration Regulations 1994 (Cth), r 5.19

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 23 December 2016 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, Aeon Technology Services Pty Ltd, applied for approval on 25 May 2016. 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 the Direct Entry Nomination stream.

4. The applicant company is an asset management company that processes large quantities of IT and telecommunication equipment.  It is located in Landsdale, Western Australia, 6065.  The applicant has nominated the position of Personal Assistant (ANZSCO 521111) for approval.

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate found the business had not identified a need to employ a paid employee to work in the position under the nominator’s direct control.

6. The Tribunal received a review application on 11 January 2017.  A copy of the delegate’s decision record was provided to the Tribunal for the purpose of the review.

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

8. On 29 January 2019, the Tribunal wrote to the applicant, through their representative, to invite the applicant to provide updated and current information demonstrating how the applicant met all of the criteria in r.5.19(4), pursuant to s.359(2) of the Migration Act 1958 (the Act). The Tribunal noted that it was required to be satisfied that all of the requirements of r.5.19(4) were met, not simply the criterion that was found not to be satisfied by the delegate. The Tribunal provided a copy of r.5.19(4) for reference, and also provided examples of the kind of information that would assist it to assess the applicant against the r.5.19(4) criteria.

9. On 8 February 2019, the Tribunal received the following information:

   ·Extract from the ASIC website showing that the applicant is a currently registered company;

   ·Financial Statements for the years ended 2015, 2016, 2017 and 2018;

   ·Statement of the Mr Shan Patterson, Director and Chief Executive Officer of the applicant, explaining the need for the nominated position;

   ·Organisational Chart;

   ·Job Description for the nominated position;

   ·Evidence of advertising the nominated position;

   ·Employment Contract between the applicant and nominee dated 1 July 2016;

   ·Certification form dated 16 June 2016 from the relevant Regional Certifying Body;

   ·Payroll records in respect of the nominated employee;

   ·Copies of PAYG Payment Summaries for the nominated employee, for the years ended June 2017 and 2018.

10. On 20 June 2019, the Tribunal received additional information relevant to the application for review, including, but not limited to:

    ·Business activity statements (BAS) for periods October 2018 to March  2019 recording sales in each quarter of between $254,720 and $632,378, and wage expenditure of between $46,194 and $46,371.

    ·Updated Organisational Chart

    ·Amended contract of employment dated 19 July 2018 between the applicant and the nominated employee, recording that the base salary will be $70,000 and 9.5% superannuation.

    ·Statement of the applicant’s Human Resources Manager explaining the need for the applicant to employ a Personal Assistant

    ·Payslips of the nominated employee

    ·Evidence of examples of the tasks performed by the nominated employee.

11. The Tribunal also received detailed written submissions on behalf of the applicant.  The submissions address all aspects of the Regulation.  The submissions provide some background to the operation of the business and set out reasons why there is a genuine need for the nominated position. It is submitted that it was very difficult to find a suitable person from the local labour market who demonstrated the relevant qualifications and experience to be successful in the role.  

12. The submission also responds to the concerns set out by the delegate in the decision record.  As to the concern that the nomination did not provide substantive and quantifiable evidence (including loans or overdrafts or bank statements) to support its claim that the company was a growing business and rapidly expanding, and therefore it had a need for the position, it is submitted that, on the basis of all the other “numerous” documents lodged in support of the nomination, it was unreasonable for the delegate to refuse the nomination on this reasoning alone.  Further, it is submitted that the additional and updated financial information provided to the Tribunal shows that the applicant, since it lodged its nomination application, has continued to operate profitably and grow as planned.

13. The submission indicates that the nominee, Mr Sidney Lambach, has since 2015, been working in the nominated position and reporting to the company CEO, performing tasks which are fully aligned with the tasks prescribed in ANZSCO.  It is submitted that the nominee is integral and indispensable to the business.

14. Mr Patterson has provided a statement indicating that since the refusal of the nomination, he has increased his stake in the company.  He also occupies the position of Chief Executive Officer and is sole controller of the applicant’s business activities.  As such, he states that he is subject to enormous workload and, with increasing responsibilities and a more hectic schedule, having a professional dedicated to providing full time support to himself and the company’s’ senior management team is indispensable and paramount to the company’s’ operations and future growth. 

15. The applicant’s website, which the Tribunal has viewed, indicates that the business was established in 1996, and “offers a whole of IT life-cycle servicing capability Australia wide, providing end to end IT asset management solutions, incorporating financing, procurement, front end servicing and back-end decommissioning, as well as re-marketing”.  Information contained on the website indicates that the applicant is in the process of expanding its capability in the recovery sector to increase the rate of product recycling.  It also indicates that the applicant has a network of secure distribution and processing depots around Australia - in addition to its head office and production depot in Western Australia, it has a national distribution centre and high security production depot in Melbourne, as well as production depots in Canberra and Sydney.

16. The Tribunal has had regard to this additional evidence, and under s.360(2)(a) of the Act is satisfied it is able to decide the review in the applicant’s favour on the basis of the material before it. 

17. 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

18. 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)

19. 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.

20. The Tribunal has had regard to the information of the Department’s file as to the nomination, and is satisfied that these requirements are met.  The application for approval was made on the approved form and was accompanied by the prescribed fee.  The relevant s.245AR(1) certification was also provided in the application form.

21. For the purposes of subparagraph 5.19(4)(a)(ii), the Tribunal finds that the identified occupation in the application is Personal Assistant (ANZSCO 521111).

22. The applicant has provided evidence describing the need for the business to employ a paid employee to work in the position under the nominator’s direct control.  The Tribunal accepts that the business needs to employ a paid employee to work in the position under the nominator’s direct control.  The tasks that the business needs the position to undertake are discussed in more detail below.

23. 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)

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

25. Having considered the material before it, including the nominator’s financial statements and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.

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

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

27. 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.

28. There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities.  The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ. 

29. Accordingly, the Tribunal finds that the position is not related to labour-hire and that the requirement in r.5.19(4)(c) is met.

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

30. 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.

31. It is now over two years since the delegate’s decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position.  The Tribunal has also had regard to the terms and conditions of employment as set out in the employment contract (re-signed by the parties in July 2018).  The contract indicates that the nominee will be employed as a Personal Assistant on a full time basis for two years, renewable by agreement with a base salary of $70,000 plus 9.5% superannuation.  There is nothing in the contract that expressly excludes the possibility of extending the employment period. 

32. Having regard to the totality of the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.

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

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

34. 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.

35. Based on the written submissions and documents provided, the Tribunal is satisfied that there is no other Personal Assistant within the company besides the nominee, and that no Australian employee is performing equivalent work in the same workplace.  The nominee’s most recent employment contract provides that he receives a base salary of $70,000 per year plus 9.5% superannuation.

36. Accordingly, the Tribunal must be satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

37. There is no evidence before the Tribunal that the remuneration for the occupation of Personal Assistant is set by a Federal or State employment award or agreement. Accordingly, the Tribunal has consulted the following sources on the remuneration for a similar position based in Perth and notes the following:

    • the Payscale website (Australia) indicates that the average salary for a Personal Assistant in Perth is $62,069, with the salary range being $44,000 to $79,000 (accessed 25 June 2019): and
    • the Australian Government’s Job Outlook website (accessed 25 June 2019) indicates that the median weekly earnings for a Personal Assistant are $1,256 (or $65,312 per year – or approximately $51,233 after tax), based on ABS Labour Force Survey, 2017: >

      The Tribunal has also had regard to the opinion of the regional certifying body to the effect that the terms and conditions of the 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.

    • On evidence before it, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be 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)

    • 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 evidence before the Tribunal to suggest that there is adverse information known to the Department about the nominator or a person associated with the nominator.

    • Accordingly the requirements of r.5.19(4)(f) are met.

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

    • 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 no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws.

    • Accordingly the requirements of r.5.19(4)(g) are met.

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

    • Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:

      ·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 specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

      Location of the position and the business

    • The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument.

    • The Tribunal has considered the current legislative instrument (IMMI18/037), however, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 8 March 2018[1].  The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059)[2].

      [1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states:  “(1)  This instrument applies in relation to the following: (a) an application for approval of a nomination in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”

      [2] See Schedule 4 of IMMI 18/037

    • When IMMI17/059 commenced on 17 November 2017, it did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated.  The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applied to nomination applications made on or after 17 November 2017.

    • Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application.  That legislative instrument is IMMI 13/049.

    • In this case, the position is located in Landsdale, Western Australia, 6065, and at the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 13/049.  Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.

      Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident

    • Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.

    • In considering this issue, the Tribunal has taken into account the information provided to the Tribunal regarding the nature of the business and the explanation as to why there is a genuine need for a paid Personal Assistant in the business.  The Tribunal accepts the evidence regarding the applicant’s efforts to find a suitably qualified and experienced Personal Assistant to fill the nominated position, on a long-term basis. The evidence before the Tribunal indicates that the role was advertised before Mr Lambach was offered the position. The Tribunal also takes into account the opinion of the regional certifying body, which it notes to be the Government of Western Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.

1. The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C ) are met.

   Tasks of the position

2. The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument.  The applicable instrument specified for this purpose is IMMI 15/083.  The application is for a Personal Assistant, ANZSCO 521111.  This occupation is listed in Schedule A of the instrument.

3. The ANZSCO dictionary outlines that the tasks of the occupation of Personal Assistant include :

   ·liaising with other staff on matters relating to the organisation's operations

   ·researching and preparing reports, briefing notes, memoranda, correspondence and other routine documents

   ·maintaining confidential files and documents

   ·attending meetings and acting as secretary as required

   ·maintaining appointment diaries and making travel arrangements

   ·processing incoming and outgoing mail, filing correspondence and maintaining records

   ·screening telephone calls and answering inquiries

   ·taking and transcribing dictation of letters and other documents

   ·may supervise other secretarial and clerical staff

4. On the basis of the evidence before it, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Personal Assistant, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s business correspond to the tasks of a Personal Assistant at ANZSCO Skill Level 3.

5. Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.

   Regional Certification

6. The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 18 February 2016 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.

7. The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 13/049.

8. On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e ) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:

   ·There is a need for a paid employee in the nominated position within the business activities of the nominating employer;

   ·The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and

   ·The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.

9. Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.

10. Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.

11. It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.

12. 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

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

    Nicola Findson
    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

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; 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;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (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 specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (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).