ASIL TRADING PTY LTD ATF ASIL TRADING UNIT TRUST (Migration)

ASIL TRADING PTY LTD ATF ASIL TRADING UNIT TRUST (Migration) [2019] AATA 6278 (11 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  ASIL TRADING PTY LTD ATF ASIL TRADING UNIT TRUST
CASE NUMBER:  1732704
DIBP REFERENCE(S):  BCC2017/2284911
MEMBER:Phoebe Dunn
DATE:11 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 October 2019 at 12:30pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry stream –training requirements – evidence of expenditure on training – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(i)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 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).
The applicant applied for approval on 28 June 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(i) of the Regulations because the applicant failed to provide sufficient evidence to demonstrate it had met its training benchmark obligations and commitments under either Training Benchmark A or B.
The applicant, represented by Mr Ilyas Mohammad, appeared before the Tribunal on 18 September 2019 to give evidence and present arguments. The hearing was conducted as a combined hearing with the review of the decision to refuse the related Subclass 186 visa application for the nominee, Mr Syed Hashmini, in Tribunal File Number 1802346.
The Tribunal also heard a related review application for the same applicant in Tribunal file number 1711417, on the same day but as a separate hearing. The Tribunal confirmed with the applicant that oral and written submissions made in respect of that review application could be used in the context of this review application, and vice-versa, where relevant.
The applicant was represented in relation to the review by its registered migration agent, Mr Rick Gunn.
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 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.
At the hearing, the Tribunal received evidence from one of the Directors of the business, Mr Ilyas Mohammad. Mr Mohammad described in some detail the nature of the three businesses currently operated under the umbrella of ASIL Trading Pty Ltd; namely a restaurant, Hyderabad Darbar in Dandenong, Victoria; a Convenience store in Geelong, Victoria; and an IT business, Opticon, in Preston, Victoria, where the nominee works. Mr Mohammed was working as a computer science engineer for Telstra before starting the convenience store business in 2009, originally operating three stores in Southbank, St Kilda Road and Moorabbin as a franchisee. He subsequently sold these businesses in 2011 and 2012, then purchased a store in Geelong in 2013. In 2015, he commenced a restaurant business, originally in Shepparton, but now located in Dandenong. In 2016, he started the IT business Opticon, which Mr Mohammed described as his true passion. Mr Mohammed explained that his business partner spends a lot of time in India, and is not involved in the day-to-day running of the businesses.
At the hearing, Mr Mohammed explained his current key focus is on growing the IT business, with the support of the nominee. Mr Mohammed found the nominee when he advertised for the position on Gumtree in late 2015, and decided that the nominee was the best candidate for the role following an interview. At the time, the nominee was working for another employer under a Subclass 457 visa approved on 29 June 2015. The Tribunal notes oral evidence of the applicant and the nominee that the nominee has appropriate qualifications and over ten years’ experience in a similar role in Pakistan before coming to Australia in 2011.
Mr Mohammed outlined in detail the current clients of the business, and the work performed for those clients by the nominee, including:
a.logging all calls;
b.IT support, including investigating and diagnosing issues and providing solutions;
c.attending client premises;
d.managing hardware and software installations and upgrades; maintaining data back-ups and back-up retrievals; and
e.providing strategic advice to clients on IT needs and solutions.
At present, the business operates Monday to Friday, and the nominee’s hours are 9.00am to 5.00pm, with any after hours and emergency calls managed by the applicant. The applicant attested that he has a genuine need for the nominee, because he wishes to grow the business and plans to have a proper call-centre and a twenty-four hour support service for clients. The applicant currently has six key clients and requires the support of the nominee to both service existing clients and help grow the business, so that the applicant can focus on business growth across each of the businesses within the applicant’s portfolio. The applicant noted that the nominee is a trusted employee with a reputation for excellent customer service. Post hearing, the applicant has provided the Tribunal with written customer testimonials in support of this evidence.
The application is compliant: r.5.19(4)(a)
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 Migration Act 1958 (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.
Based on the information on the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee and written certification.
The application for approval identifies Mr Syed Hashmini, the nominee, and the occupation identified is that of ‘ICT Support Engineer’ (ANZSCO 263212). The Tribunal notes that on 29 February 2016 the Department approved a Subclass 457 visa nomination lodged by the applicant identifying the nominee to work in the role of ICT Support Engineer, and the nominee has been working for the applicant in that role since March 2016. The Tribunal further notes that the applicant originally worked for a different sponsor in the same role under a Subclass 457 visa, and that the applicant lodged a nomination under the Direct Entry scheme as he wanted to secure the nominee straight away rather than waiting for a further two years under the Temporary Residence Transition Scheme.
Regulation 5.19(4)(a)(ii) requires that the application for approval ‘identifies a need for the nominator to employ a paid employee to work in the position under the nominee’s direct control’. The Tribunal notes, in particular, oral and written submissions about the diverse nature of the applicant’s business, which includes a restaurant, convenience store and the IT business Opticon, where the nominee currently works. The applicant has advised that the applicant wishes to focus on growing the IT business, and needs the support of the nominee to do so, as it has grown too large for him to manage on his own. The Tribunal has had regard to the evidence before it, and is satisfied that the applicant has identified a need to employ a paid employee in the position of ICT Support Engineer, 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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has received current information evidencing that the applicant is actively, lawfully and directly operating a business in Australia, including an ASIC current and historic search, financial statements for the financial years ending 2015 to 2019, including profit and loss and balance sheets, and company tax returns from 2016 to 2019, the most recent business activity statements, payroll information and the current WorkCover Certificate of Currency.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
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 no evidence or claim before the Tribunal that the applicant is involved in labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
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.
The applicant has provided the nominee’s current contract of employment dated 18 January 2017, together with copies of the financial statements for the business and PAYG summaries for all employees for the financial years 2015 to 2019. The applicant has also provided a further contract dated 19 September 2019 that will come into effect on the grant of a Subclass 186 visa, for a period of at least two years, with the possibility of extension beyond that time at a salary of $60,000 plus superannuation at the current legislated rate.
The Tribunal has considered oral and written submissions regarding the financial stability of the business and the capacity for the business to employ the nominee in the position for at least two years. The Tribunal notes that the nominee has been employed by the business since early 2016 at an annual salary of $56,000. On the basis of the material before it, the Tribunal is satisfied that the nominee will be employed in the nominated position for at least two years and that there is no express exclusion of an extension of that employment.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
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.
There is no equivalent Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. Accordingly, the Tribunal must examine market salary testing, and the terms and conditions that would be applicable to such an Australian citizen or permanent resident.
The Tribunal has considered the nominee’s current and future contracts of employment and is satisfied that the terms and conditions applying to the employment of the nominee meet the minimum employment entitlements in the National Employment Standards under the Fair Work Act 2009 (Cth). The Tribunal has also considered evidence provided of commensurate salaries for ICT Support Engineers in Melbourne, and is satisfied that the applicant’s current salary of $56,000 is within the range of $50,000 to $65,000, noting also that it is set to increase to $60,000 on the grant of the Subclass 186 visa.
Accordingly, the Tribunal is satisfied that the applicant is providing and will continue to provide the nominee with terms and conditions of employment that are no less favourable than those that would be provided to an Australia citizen or permanent resident performing equivalent work 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 of the Regulations.
There is no evidence before the Tribunal to suggest there is any adverse information known about the applicant or its business.
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 indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations where it operates a business.
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 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 16/059 as amended by IMMI 17/040), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; 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 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.
In the context of this application, the relevant provisions are those considered below and the Tribunal notes that all of them are required to be met.
Tasks will be performed in Australia
The evidence before the Tribunal establishes that the business is located in Preston, Victoria and that the nominee has been working from that location since commencing his employment with the applicant. The nominee is required to travel within Victoria to premises of clients of the business, where required.
Tasks correspond to those of an occupation specified by the Minister in an instrument in writing designated for this regulation
The nominated occupation is included on the Short-term Skilled Occupation List in Schedule 2 of IMMI 17/040, and the applicant has provided the Tribunal with evidence of the nominee’s qualifications and experience to perform that role. The Tribunal has also had regard to the nominee’s current contract of employment and position description, together with oral evidence at the hearing, which demonstrate that the tasks being performed by the nominee accord with the tasks of an ICT Support Engineer as outlined in ANZSCO 263212.
Accordingly, the requirements of r.5.19(4)(h)(i)(A) are met.
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 regulation
In this case, the nomination application was lodged on 28 June 2017, and the requirements of IMMI13/030 apply. The financial documents before the Tribunal indicate that the applicant has been operating its business since 2009, and registered the business name for the IT business, Opticon, on 12 November 2014.
Under IMMI 13/30, the applicant is required to show that training has been, and continues to be provided to Australian citizens and permanent residents, by either expending a minimum of 1% of the total payroll of the business in the provision of training employees of the business who are Australian citizens and permanent residents, or a minimum of 2% to an industry training fund that operates in the same industry as the business.
In oral and written submissions to the Tribunal in this case and a related case of Tribunal File number 1711417, the Tribunal has identified the following expenditure on training:
a.the applicant has spent the following amounts on training Australian citizens and permanent residents in compliance with Training Benchmark B:
i.Receipt from Tristar Training dated 13 June 2016 for $1,320 for provision of an employee development program, together with evidence of employment and citizenship of the employee who received the training;
ii.Receipt from DV Training Solutions dated 8 September 2017 for $2,700 relating to customer service, team building and management, together with evidence of employment and citizenship of the employee who received the training; and
b.the applicant paid the following amounts into an approved scheme under Training Benchmark A:
i.$5,300 to Kangan Institute (receipt dated 5 August 2018); and
ii.$4,202 to Kangan Institute (receipt dated 8 August 2019).
The financial reports and payroll documents before the Tribunal indicate that the nominator’s payroll for the financial year (FY) ending 2016 was $131,971. This equates to a requirement to spend at least $1,320 under Training Benchmark B on training Australian citizens and permanent residents. In FY2017, the payroll was $251,273, equating to a requirement to spend at least $2,513.00 under Training Benchmark B. In FY2018, the payroll was $264,572, equating to a requirement to spend at least $5,292.00 under Training Benchmark A to an approved scheme. In FY2019, the payroll was approximately $210,089 equating to a requirement to spend at least $4,202 to an approved scheme under Training Benchmark A. Based on the evidence before it, the Tribunal is satisfied that the applicant has met the training benchmark requirements.
Accordingly, the Tribunal is satisfied that the applicant has met the requirements for the training of Australian citizens and permanent residents, and that the requirements of r.5.19(4)(h)(B)(I) are met.
Accordingly, the requirements of r.5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Phoebe Dunn
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).

[2019] AATA 6278

11 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies