AINSBURY HOLDINGS PTY LTD (Migration)

[2019] AATA 722

AINSBURY HOLDINGS PTY LTD (Migration) [2019] AATA 722 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AINSBURY HOLDINGS PTY LTD

CASE NUMBER:  1709130

DIBP REFERENCE(S):  BCC2016/3072437

MEMBER:Antonio Dronjic

DATE:10 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 10 April 2019 at 12:14pm

CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Regional Sponsored Migration Scheme – Mechanical Engineering Draftsperson – financial capacity to employ nominee full-time for two years – evidence of financial capacity provided – decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR (1), 359, 360
Migration Regulations 1994, Schedule 2, rr 5.19, 5.37

CASES
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902

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 April 2017 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 15 September 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). In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

3. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because the delegate was not satisfied on the evidence that the applicant has a financial capacity to provide a minimum of two years’ full-time employment to the nominee.

4. The applicant applied to the Tribunal on 26 April 2017 for review of the delegate’s decision and with the application submitted a copy of the primary decision.

5. On 21 March 2019, the Tribunal wrote to the applicant inviting it to provide information in writing under s.359(2) of the Act. The Tribunal sought information about whether the applicant meets the requirements of r.5.19 (4). A copy of the relevant regulation was attached to the letter.

6. On 2 April 2019, the applicant’s representative submitted the following documents to the Tribunal:

   ·Profit and Loss for the year ended 30 June 2016;

   ·Profit and Loss for the year ended 30 June 2017;

   ·Profit and Loss for the year ended 30 June 2018;

   ·Nominee’s Payslips from 8 October 2016 to 8 March 2019;

   ·Company’s Updated Organisational Chart;

   ·Nominee’s Job Description Statement;

   ·Nominee’s Statement and Work Samples;

   ·Company’s Business Activity Statement (February 2019);

   ·Director’s Statement;

   ·Nominee’s Employment Contract; and

   ·Form 1404 RCB advice.

7. Under s.360 (2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)

9. 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) of the Act. The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.

10. Having regard to documentation in the file of the Department of Immigration and Border Protection[1] (the Department), the Tribunal is satisfied that the application was made on the relevant form. The application relates to a visa in a Direct Entry stream seeking to meet the requirements in the Regional Sponsored Migration Scheme and consequently no fee is payable (r.5.37(3)(b)). The applicant provided the relevant s.245AR(1) certification signed and dated 3 August 2016.[2] The requirements of r.5.19(2) and consequentially r.5.19(4)(a)(i) are therefore satisfied.

    [1] Now the Department of Home Affairs

    [2] Page 144 of Department file

11. It is unclear whether the requirement in r.5.19 (4)(a)(ii) is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; attest or prove to be as claimed or asserted.’[3] On that view, which is consistent with that reflected in Departmental policy,[4] a decision maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[5] However, it could alternatively be argued that r.5.19(4)(a) as a whole is directed towards requirements for the application form/process of a more administrative nature, such that r.5.19(4)(a)(ii) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of r.5.19(4)(a)(ii) and, for example, r.5.19(4)(h)(ii)(B) (for applications relating to positions in regional Australia), which requires that there be a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s control – clearly requiring a qualitative assessment, and r.5.19(4)(d)(i), which requires satisfaction that the employee will be employed on a full-time basis in the position for at least two years. Given the uncertain scope of r.5.19(4)(a)(ii), and the requirement in relation to this application to also consider r.5.19(4)(h)(ii)(B), the Tribunal considers this issue is more appropriately considered under r.5.19(4)(h)(ii)(B) later in these Reasons.

    [3] Macquarie Dictionary online

    [4] PAM3: Migration Regulations – Divisions – Div 5.3 – General > Approval of nominated positions (employer nomination) > Part C - Criteria applicable to Direct Entry stream nominations > Need for a paid employee > Applicability and overview (reissued 12 May 2017 – last reissue prior to 1 July 2017).

    [5] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. “the employer nomination is made by an employer in respect of a need for a paid employee”. Whilst on the one hand r.5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre1 July 2012 version of r.5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal therefore exercise caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

12. For the purposes of r.5.19(4)(a)(ii), the Tribunal considers that r.5.19(4)(a)(ii) is more directed to the administrative process, consistent with the requirements of r.5.19(4)(a) as a whole. The nomination application was accompanied by the letter from Mr Turner, operations manager of the nominating business, dated 18 August 2016, identifying a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.[6]

    [6] Page 138 of Department file

13. The Tribunal is satisfied based upon this statement provided with the nomination application that the application for approval identifies a need to employ a nominated employee in the position of Mechanical Engineering Draftsperson under the applicant’s control. Regulation 5.19(4)(a)(ii) is therefore satisfied.

14. Given the above findings that subparagraphs (i) and (ii) are met, the requirements in r.5.19(4)(a) overall are therefore met.

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

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

16. The Tribunal is satisfied from the detailed documents provided to it, including the applicant’s recent financial statements, Business Activity Statements (BAS) and its current ASIC and ABN registration, that it is actively, lawfully and directly operating a business in Australia.

17. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(b) is met.

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

18. 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.

19. There is no evidence before the Tribunal to suggest that the applicant is involved in labour hire activities.

20. Accordingly, the requirement in r.5.19(4)(c) does not apply.

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

21. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension of the period of employment.

22. The applicant provided the Department with a copy of an offer of employment between the applicant and the nominee dated 15 September 2016, which states, among other things, that the employment was offered for a period of no less than two years from the date of commencement with duties and responsibilities as listed in an attachment to the employment offer. The annual salary was set to be $70,000 excluding the superannuation.

23. It is now 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 and paid the agreed salary by the applicant.

24. The Financial Statements of the applicant over recent years in evidence before the Tribunal include the following information:

Year ended 30 June 2016	Year ended 30 June 2017
Gross Profit on trading	$1,048,464	$3,711,285
Total wages	$1,436,392	$2,417,852
Sales	$4,703,801	$16,688,542

1. The BAS for February 2019 provided to the Tribunal show that the business is continuing to enjoy significant sales.

2. Further, a letter dated 19 August 2016 from the applicant’s accountant, Gooding Partners, opine that the applicant has financial capacity to meet all employment obligations in relation to the nominee for a minimum period of two years.

3. Having had regard to the totality of the evidence and the matters discussed above, the Tribunal is satisfied that the applicant possesses sufficient financial capacity to provide two years’ full-time employment to the nominee in accordance with the proposed terms and conditions of employment and that the nominee will be employed on a full-time basis in the position for at least two years. Regulation 5.19(4)(d)(i) is therefore satisfied.

4. The Tribunal is further satisfied, based on the offer of employment referred to, that the terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment further (with, notably, the nominee’s employment still now continuing with the applicant over two years after the nomination application). Regulation 5.19(4)(d)(ii) is therefore satisfied.

5. Given the above findings that subparagraphs (i) and (ii) are met, the requirements in r.5.19(4)(d) overall are therefore met.

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

6. 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.

7. Information from suggests an average salary of $61,827 per annum for Mechanical Engineering Draftsperson/Technician within the range between $51,204 and $122,261. The nominee’s overall salary is within the range suggested by >

   Based on the evidence before it, the Tribunal is satisfied that the salary provided to the nominee is 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.

8. Accordingly, the requirement in r.5.19(4)(e) is met.

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

9. 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.

10. There is no evidence before the Tribunal to indicate that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or an ‘associated person’.

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

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

12. 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.

13. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with the relevant workplace relations laws.

14. Accordingly, the requirement in r.5.19(4)(g) is met.

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

15. 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 that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant written instrument, and certain specified training benchmarks will be met (r.5.19(4)(h)(i)); or

    ·the position and nominator’s business are 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 a regional certifying body has advised the Minister about certain matters relating to the position (r.5.19(4)(h)(ii)).

16. The Tribunal is satisfied that the position and the nominator’s business are located in regional Australia, as the postcode of Canning Vale in Western Australia (6155) was specified as regional Australia in the relevant written instrument. The applicant must therefore meet the requirements of the second dot point above. As the position and the applicant are located in regional Australia, the Tribunal is satisfied that r.5.19(4)(h)(ii)(A) and (E) are met.

17. The Tribunal is further satisfied that the applicant has a genuine need for the paid position, and that it is under the nominator’s direct control. The Tribunal accepts that Mr Hamid Taheri, the nominee, was recruited in December 2016 and has been employed by the applicant as a Mechanical Engineering Draftsperson for more than two years.

18. Overall, having regard to the available evidence, the Tribunal is satisfied that the applicant business has a genuine need for the nominated role, and is therefore satisfied that r.5.19(4)(h)(ii)(B) is met.

19. The Tribunal finds that the Skilled Migration WA, Department of Training and Workforce Development (an approved Regional Certifying Body specified in the relevant instrument) certified on 12 October 2016 that there was a need for a paid employee in the nominated position within the business activities of the nominating employer, that it could not be filled by an Australian living in the same local area, and that its terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee. It is therefore satisfied that r.5.19(4)(h)(ii)(F) is met.

20. Based on the certification above, and the documentary evidence provided by the applicant in relation to its recruitment exercise that led to the hiring of the nominee, the Tribunal accepts that the position cannot be filled by a locally resident Australian citizen or permanent resident. It is therefore satisfied that r.5.19(4)(h)(ii)(C) is met.

21. Based on the evidence before it, and in particular detailed job description, the nominee’s statement and work samples and statement from Mr Barclay of 29 March 2019, the Tribunal is satisfied that the majority of the tasks of the nominated position correspond with those of the ANZSCO occupation of a Mechanical Engineering Draftsperson. This occupation is specified by the Minister in an instrument in writing for this sub-subparagraph, in Schedule 1 of IMMI 17/058,[7] which is, as required, an occupation listed in ANZSCO with a skill level of one, two or three, being a skill level of two for this occupation.

    [7] The Tribunal notes that IMMI 17/058 specifically states that it applies to applications made before 1 July 2017 but not finally determined and the latter IMMI 18/045 only applies to applications made after 18 March 2018.

22. The Tribunal is therefore satisfied that r.5.19(4)(h)(ii)(D) is met.

23. 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

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

    Antonio Dronjic
    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).