Alight Contractors Pty Ltd (Migration)

[2020] AATA 2844

Alight Contractors Pty Ltd (Migration) [2020] AATA 2844 (21 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Alight Contractors Pty Ltd

CASE NUMBER:  1733079

DIBP REFERENCE(S):  BCC2017/2770357

MEMBER:De-Anne Kelly

DATE:21 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 21 April 2020 at 2:07pm

CATCHWORDS

MIGRATION – nomination of a position (employer nomination) – Direct Entry Nomination stream –position of Electrician – financial capacity – employed full-time for 2 years – terms and conditions of employment – genuine need for the position – employment of electrical apprentices – decision under review set aside 

LEGISLATION

Migration Act 1958, s 245
Migration Regulations 1994, 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 18 December 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 3 August 2017. 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 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 applicant did not provide sufficient evidence to indicate that the business would have the financial capacity to meet all employment obligations in respect of employing the nominee on a full-time basis for a period of at least the next two years

5. The applicant did not appear before the Tribunal on 17 March 2020 to give evidence and present arguments but sent an email via the registered migration agent stating that the Tribunal could make a decision based on the evidence already provided. This was a dual hearing of the employer nomination refusal review and the visa application refusal review. The Tribunal also received oral evidence from the nominee.

6. The applicant was represented in relation to the review by its registered migration agent who did not attend the hearing either in person or by telephone.

7. 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

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.

9. The applicant, Alight Contractors Pty Ltd ACN 612284161 was incorporated on 9 May, 2016 and has a sole director Mr Anthony Verhey who is also the owner through the Abb Verhey Family Trust. The business is located at 2/186 Magnesium Drive, Crestmead QLD 4132. The organisation Chart shows 24 staff including Mr Verhey as managing director and seven apprentices.

10. The tax returns for the 2019 and 2018 years show the following figures;

Tax Return	2019	2018
Income	8,843,917	9,681,968
Wages	1,535,223	1,436,953
Other expenses	3,683,976	3,910,086
Profit	3,624,718	4,334,929

1. On 3 August, 2017 the applicant lodged an employer nomination scheme visa subclass 186 application in the direct entry stream for the nominated position of electrician on salary of $59,280 per annum in favour of Mr Michael John Neal.

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

2. 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 an identified person as a paid employee to work in the position under their direct control.

3. An acknowledgement dated 3 August 2017 was sent by the Department of Home Affairs (the Department) to the applicant as evidence of a valid application. To be acknowledged by the Department as a valid application, it must be in the approved form and be accompanied by the prescribed fee. 

4. At the time the nomination application was lodged the applicant responded “yes” in the online form to the following: “The applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR(1) of the Migration Act 1958.”

5. The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee, and the applicant has included written certification stating the applicant has not engaged in conduct in relation to the nomination that contravenes s.245AR(1).

6. Regulation 5.19(4)(a)(ii) requires the applicant to identify a need for the applicant to employ a paid employee to work in the position under the applicant’s control. The assessment of the “need” for a paid employee comprises two parts: establishing the need for an employee, i.e. there exists a vacancy for the nominated position and ascertaining that the relationship between the applicant and nominee is that of employer and employee.

7. The nomination does not have to specify the nominee but needs to identify a nominee before, or at the time, the associated visa application is made. Mr Michael John Neal was identified as the nominee in the employer nomination lodged on 3 August 2017. At the hearing, the nominee advised that he had worked for the company for 3 years and explained that he installed wiring for new commercial buildings. He gave a detailed overview of the tasks he undertook as an electrician such as testing switchboards and ensuring electrical work is compliant. The Tribunal considers the company has shown a need for the position.

8. The employment contract dated 11 July 2017 shows that the applicant is the employer and the nominee is the employee therefore the relationship is that of employer and employee.

9. 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 provided tax returns for financial years 2019 and 2018. The ASIC company report dated 20 January, 2020 shows the next review date is 9 May, 2020. The Tribunal considers that the applicant is actively, lawfully and directly operating a business in Crestmead, Queensland Australia.

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

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

13. 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. 

14. The Tribunal has no evidence to suggest the nominators business activities include labour hire to unrelated businesses. The information provided by the nominee in the hearing supports this finding..

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

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

16. 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. 

17. Tax return for financial year 2019 shows the business is profitable in the nominee can be employed in the nominated position for at least 2 years full time. The employment contract between the applicant and the nominee dated 11 July, 2017 states “the minimum period for this contract is two (2) years” and the Tribunal considers that it does not expressly exclude the possibility of an extension

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

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

19. 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.

20. At the time of application, the applicant submitted an employment contract dated 22 September, 2016 for another electrician at the same workplace on $30 per hour or $59,280 per annum. The Tribunal finds the salary of $59,280 for the nominated position is no less favourable than the salary provided to an Australian citizen or permanent resident performing the work of an electrician at Alight Contractors Pty Ltd in Crestmead Queensland.

21. Accordingly the requirements of r.5.19(4)(e) are met.

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

22. 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. 

23. The Tribunal has checked on the Banned and Disqualified ASIC register and can find no reference to the director or anyone associated with the applicant. There is no evidence before the Tribunal to suggest that Immigration has any adverse information about the nominator.

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

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

25. 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.

26. The Tribunal has checked the Fair Work Ombudsman site and cannot find any reference to the company having any complaints against it relating to workplace relations. The Tribunal considers the applicant has a satisfactory record of compliance relating to workplace relations.

27. 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)

28. 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 (see legislative instrument IMMI 17/080 the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

29. The applicant can choose to meet either r.5.19(4)(h)(i) or r.5.19(4)(h)(ii). The position is located in Crestmead Qld 4132. The definition of “Regional Australia” is found in IMMI 16/045 and is determined by postcode. The postcode 4132 is not included in the list in IMMI16/045 for regional areas. Therefore, the position and business are not located in regional Australia. The applicant cannot meet r.5.19(4)(h)(ii) and must therefore meet r.5.19(4)(h)(i).

30. The Tribunal found the occupation “Electrician (General) ANZSCO 341111” is in IMMI 17/080, and thus the occupation is specified by the Minister.

31. The Tribunal notes that the ANZSCO lists the tasks of an Electrician (General) ANZSCO 341111 as follows;

    ELECTRICIANS design, assemble, install, test, commission, diagnose, maintain and repair electrical networks, systems, circuits, equipment, components, appliances and facilities for industrial, commercial and domestic purposes, and service and repair lifts, escalators and related equipment.

    Tasks Include:

    oexamining blueprints, wiring diagrams and specifications to determine sequences and methods of operation

    omeasuring and laying out installation reference points

    oselecting, cutting and connecting wire and cable to terminals and connectors

    ousing electrical and electronic test instruments to trace and diagnose faults

    orepairing and replacing faulty wiring and defective parts

    opositioning and installing electrical switchboards

    oconnecting electrical systems to power supply

    otesting continuity of circuit

    oinstalling, testing and adjusting electric and mechanical parts of lift.

32. The Tribunal notes that the employment contract dated 6 July 2017 and signed by both the nominee and the managing director states under “4. Duties”, “Duties involve all types of electrical installations as required with our type of business but within the skills you are competent with.” While this is the shortest job description the Tribunal has ever seen, it does correspond with the tasks of an electrician ANZSCO 341111 and furthermore the nominee gave a detailed description of his duties and they were also consistent with the ANZSCO tasks.

33. The Tribunal finds that r.5.19(4)(h)(i)(A) is met.

34. The applicant must demonstrate that there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control. The nominee at the hearing advised that he had been working for the applicant for three years. The Tribunal notes that the business has a high turnover and is very profitable. The position fits into the scope of operations of the business. The Tribunal considers that there is a genuine need for the nominator to employ the nominee as an electrician under his direct control.

35. The Tribunal finds that r.5.19(4)(h)(i)(AA) and (AAA) are met.

36. The nominator’s business has operated for at least 12 months, and the nominator must meet the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing namely IMMI 17/045 for this sub-sub-subparagraph and provides as follows;

    The training benchmarks for an established business are:

    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.

37. The applicant can choose to meet either Training Benchmark A or B and seeks to meet B. For the financial year ending 30 June 2019, the wages were $1,545,223 and superannuation $170,629 to make a total payroll of $1,715,852 of which 1% is $17,158.

38. The applicant provided “Employment agreements – Electrical apprentices”, signed by both parties, and pay slips for nine electrical apprentices for the past two financial years as shown below.

39. This amount is more than 48 times the amount required under benchmark B for one year and shows a significant and commendable commitment to training Australian citizens and permanent residents particularly in the electrical trade, which experiences significant workforce shortages in Australia. It is further noted that the applicant employs a mature aged apprentice which is another commendable commitment to training. The Tribunal finds that the applicant has met the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in IMMI 17/045.

40. The Tribunal finds that r.5.19(4)(h)(B) is met.

Apprentice pay from 26 Mar 2018 to 26 Mar 2020
Bailey Doyle	91,434
Harley Ngataki	124,094
Jayden Thew	68,447
Joshua Crombie	84,293
Keanu Lai	77,568
Matthew Downey	28,465
Sione Hola	98,694
Takai Hola	120,549
Taulanga Hola	133,352
$ 826,896

1. Accordingly the requirements of r.5.19(4)(h) are met.

2. 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

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

   De-Anne Kelly
   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)       all 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;

   (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

   (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 the person identified under subparagraph (a)(ii), as 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).