Aumax Group Pty Ltd (Migration)

Aumax Group Pty Ltd (Migration) [2019] AATA 3049 (28 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Aumax Group Pty Ltd
CASE NUMBER:  1713792
DIBP REFERENCE(S):  BCC2016/4241013
MEMBER:Cathrine Burnett-Wake
DATE:28 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 28 March 2019 at 12:49pm
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – nomination does not satisfy – not satisfied that the business will have financial capacity – nominator has the financial capacity to maintain the nominee's employment – change of company structure – nominee should not be affected because of the restructure – occupation identified is the same occupation as that carried out – decision under review set aside

LEGISLATION
Corporations Act 2001 (Cth) s 50AAA
Migration Act 1958 (Cth), ss 140GB, 245AR(1)
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223(4), rr 1.13A, 1.13B, 1.20DA, 2.59, 2.68, 2.72, 5.19

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 9 June 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 15 December 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 Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the they were not satisfied that the business will have the financial capacity to be able to pay the full-time salary for the nominated position for at least two years.
Ms Nan Hu, the director of Aumax Group Pty Ltd (Aumax), the applicant, appeared before the Tribunal on 13 March 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent, Ms Traci Chen.
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 Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
Background
The nominee was first nominated and sponsored for a 457 visa by a related entity of the applicant. On 28 June 2013, PSN Partners Pty Ltd (ACN 163 230 573) (ABN 99 163 230 573) (‘PSN’) simultaneously lodged a standard business sponsorship application and a (r.2.72) nomination application to the former Department of Immigration and Border Protection (‘the Department’). The nomination application identified Mr Bin Wen as the nominee and nominated the position of a Real Estate Representative (ANZSCO 612115).
On 10 September 2013, PSN was approved as a standard business sponsor and the nomination application was also granted, both applications were valid until 10 September 2014.
On 28 June 2013, the nominee applied for a UC-457 visa, which was granted on 21 October 2013, valid until 21 October 2017 (4 years).
On 1 July 2015, all PSN business operations moved to Aumax due to an internal company restructure. The Tribunal has viewed ASIC company extracts for both Aumax and PSN and is satisfied they are associated entities as defined under section 50AAA of the Corporations Act 2001 (Cth).
The applicant’s business is situated at Shop 1, 413 to 415 Elizabeth Street, Melbourne Victoria 3000 and operates under the business name of Fletcher Projects Melbourne, a Real Estate Agency and is a franchise of the Fletchers chain of real-estate agencies.
On 1 July 2015, the nominee’s employment was moved to Aumax following the internal company restructure and is currently employed by Aumax.
On 26 July 2016, Aumax simultaneously lodged a standard business sponsorship application and a (r.2.72) nomination application to Department. The nomination application identified Mr Bin Wen as the nominee and nominated the position of a Real Estate Representative (ANZSCO 612115).
On 3 October 2016, Aumax was approved as a standard business sponsor, valid until 3 October 2021 (5 years). The nominee’s 457 visa was official transferred to Aumax on 11 November 2016, when the r.2.72 nomination application was approved.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(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 relevant person and occupation.
On the basis of the information in the Department's file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.
The application for approval identifies, Mr Bin Wen, the nominee who, according to Departmental records, held a Subclass 457 visa from 21 October 2013 through to 21 October 2017 that was granted on the basis of satisfying subclause 457.223(4) of Schedule 2.
The occupation identified in the application is a Real Estate Representative (ANZSCO 612115). The Tribunal is satisfied, based on the employment documents for the nominee, that the occupation identified is the same occupation as that carried out by him as the holder of a Subclass 457 visa. The Tribunal is accordingly satisfied that this occupation carries the same 4-digit code (6121) as the occupation carried out by the nominee whilst he held the Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
Departmental records confirm that the nominator was the standard business sponsor who last identified, Mr Bin Wen, the nominee, in a nomination made under s.140GB of the Act. The nominator was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).
During the hearing, Ms Hu described the nature of the business and its operations in general. She outlined that the business operates as a Real estate agency and is located in the Melbourne CBD, as well as a branch in Surrey Hills.
The Tribunal is satisfied on the basis of the material before it, including the business' registration documents, activity statements, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating a real-estate agency business, trading as Fletchers.
Given the above findings, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
In this case, r.5.19(3)(c)(i) is the relevant provision. The nomination was lodged on 15 December 2016. The nominee was granted the Subclass 457 visa to work in the nominated occupation of a Real Estate Representative (ANZSCO 612115) for related entity PSN on 21 October 2013, then with Aumax, the applicant, on 11 November 2016.
As already discussed, a change of company structure has occurred during the period the nominee was the holder of his 457 visa. The nominee was first granted a 457 visa on 21 October 2013. This visa was granted on the basis of his employment with PSN. At hearing Ms Hu gave evidence regarding the restructure to Aumax and that this entity applied to become an approved standard business sponsor and applied for new nominations for their workers on 457 visas, thus taking over employment and standard business sponsorship obligations.
Although the nominee has not exclusively worked for Aumax for 2 of the 3 years preceding this nomination application, policy takes into consideration that entities do at times change structure. Moreover, policy considers that in such circumstances the employment across the two entities may still be assessed as the same employer for the 457-visa holder, provided the circumstances fall under certain parameters.
Policy provides:
There may be applications for the Temporary Residence Transition stream where the nominator has not been the nominee’s sole standard business sponsor during the whole required 2 year period. In these cases, work undertaken with an entity other than the most recent standard business sponsor may still be considered towards the 2 year requirement if the nominator can demonstrate that the nominee has actively performed the duties of the position for the required 2 years despite a change of their employer. This may occur in situations where the current standard business sponsor has undergone business restructure/takeover/sale/closure and may have changed their ABN/ACN/name, which required a new standard business sponsorship approval. That is, there must be some connection between the most recent standard business sponsor and any previous standard business sponsor/s of the nominee to be counted towards the 2 year requirement.
When assessing this criterion for cases where there has been more than one standard business sponsor, delegates should consider the following three questions and, if they consider the answers to the three questions to be generally ‘yes’, may consider this criterion to be met:
•Is the nominee still working in the same position, performs the same duties and has the same working conditions in the required 2 year period, regardless of the change of sponsor?
•Does the nominee report to the same management structures?
•Has the nominator retained the same business name and/or operations, but is considered to be a new legal entity?
The policy intent is to accommodate for UC-457 visa holders that apply for Temporary Residence Transition stream that have been affected by circumstances outside of their control, such as their employer undergoing a business restructure, takeover, sale or closure.
Although the nominee went from working for PSN to Aumax, yes could be answered to the three questions as set out in policy as described. Evidence at hearing was provided that:
i.The nominee is still working in the same position, at the same location, as a Real Estate Representative and he performs the same duties and his working conditions have not changed;
ii.The nominee reports to the same management structure; and
iii.The nominator retained the same trading name ‘Fletchers’ through the course of the restructure, and the operations have remained the same.
The Tribunal is satisfied, taking into consideration the circumstances, and given the intent of the policy, that the nominee should not be affected because of the restructure the business and has been employed in his occupation of Real Estate Representative for at least 2 years in the 3 years immediately before the application. The Tribunal has also had regard to payslips along with the payroll activity information on file, which confirms the nominee's employment with the nominator.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
The Tribunal has had regard to the signed contract of employment dated 12 July 2016, confirming the nominee will be employed on a full-time basis for at least 4 years from the date his 186 visa is approved; and that his employment contract does not expressly exclude the possibility of extending the period of employment.
The applicant’s 2016 financial statements were provided to the Tribunal, along with the ATO tax return; both reflect a net profit after tax of $95,913.
The applicant’s 2017 financial statements were provided to the Tribunal along with the ATO tax return; both reflect a net profit after tax of $269,494.
Ms Hu gave verbal evidence, that although the 2018 financial statements had not been prepared, the business turned a profit, which will be higher than the 2017 financial year. BAS for the 2018 financial year have been provided to the Tribunal to demonstrate continued activity.
The Tribunal has had regard to the documents provided on review, including the nominator's financial statements, BAS and company tax returns.
The Tribunal is satisfied on the totality of the evidence that the nominator has the financial capacity to maintain the nominee's employment as they have done since his 457 was granted in 2013 and since 2016 whilst he has been with Aumax.
The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending the period of employment.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
Regulation 5.19(3)(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.
The evidence on file indicates the nominee's base salary is $54,600 plus superannuation. At hearing Ms Hu, outlined that there were no equivalent workers within the organization.
The Tribunal has reviewed external sources relating to salary and what is ‘market rate’. Payescale indicates that the salary range for a real-estate agent ranges between $32,885 and AU$80,274, with the average being $48,674.
The Tribunal was supplied a submission regarding ‘market rate’ for real estate representatives. The Tribunal has considered the submission along with details about the relevant award, the Real-estate Industry Award 2010. The representative also provided a submission that the declared income of the nominee is within the appropriate rate of that normally paid to a real-estate representative with comparable experience as the nominee and is consistent with the market rate for the same occupation, backing up these claims with job advertisements of similar roles. The Tribunal accepts the representative’s submissions.
Based on the 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 requirement in r.5.19(3)(e) is met
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The applicant’s most recent sponsorship approval was granted on 3 October 2016 and is valid until 3 October 2021; this is the relevant period the Tribunal must assess to ascertain if the applicant has complied with the applicable obligations relating to training requirements.
Written submissions have been provided to the Tribunal that in 2017 the applicant did not meet the required 1% spend on training and a request has been made that in the circumstances it would be reasonable for the Tribunal to disregard the training requirements.
The applicant’s representative has put forward that it is reasonable to disregard the training requirements because although the applicant paid $3945.26 towards training in 2017 and the amount spent should have equated to $6628.32, the applicant has overall, in the relevant period, paid an aggregated expenditure on training of 1% for their Australian staff members. The submission state’s the following:
First by in 2016, our client paid a total of $7,480 towards the benchmark when in fact our client only needed to pay $2488.06 in training fees on the top of this; the client continuously pays $150k in franchise fees annually, which includes yearly training courses specifically tailored for their Australian staff members. These facts have in turn qualified Aumax’s specific circumstances to be presented as ’reasonable’ to be disregarded in line with regulation 5.19(11)(h)(sic). These circumstances are also reaffirmed in the instructions byPAM3 which reiterates: ‘it may be considered reasonable to disregard the requirement if the aggregated expenditure of the sponsor over a three-year period is commensurate with a total training commitment for that period’. This policy again emphasises the Minister’s right to disregard specific circumstances, especially as our client has had aggregated expenditure on a three-year period. This further affirmed in the letter from the client’s director who confirms that Aumax pays a large expenditure towards in-house staff training courses annually.
The Tribunal is satisfied that although the applicant did not meet the required 1% spend on training in the 2017 period, when the training receipts are added together, the aggregated spend on training is at least 1% during the relevant period. In the submissions provided by the applicant, a table has been provided to show the calculations for the aggregation. Training receipts to support the calculations have also been provided to the Tribunal.
Additionally, the Tribunal notes a letter provided by the director and chief executive officer of Fletcher’s the franchisor, which states that Fletcher’s head office provide regular training throughout the year which all their franchisees participate in. Further, the cost of this training is covered as part of the franchise fees paid. Although the letter from Fletcher’s chief executive officer does not specify the value of the training provided, as part of the franchise agreement, and has not been included in the aggregated calculations. The tribunal is satisfied this should be considered towards the applicant’s commitment towards maintaining training expenditure of Australians.

On balance, considering the applicant has spent at least 1% during the relevant period on an aggregated basis and given policy outlines that in such a circumstance it may be considered reasonable to disregard the training requirements, the Tribunal is satisfied that on this occasion it is reasonable to do so.
Although the applicant did not spend the required 1% in 2017, overall the Tribunal is satisfied the applicant has maintained a strong commitment to maintain expenditure towards training Australians.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) 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 information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have 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 information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws. Additionally, the applicant has provided their latest Allianz Certificate of Currency for workers compensation insurance valid from 1 July 2018 to 30 June 2019.
Accordingly, the requirement in r.5.19(3)(h) is 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.
Cathrine Burnett-Wake
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.
Temporary Residence Transition nomination
(3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(b)the nominator:
(i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)      is actively and lawfully operating a business in Australia; and
(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i)       both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)      all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)       the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)      the terms and conditions of the person’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)       the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)      it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)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
(h)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.

[2019] AATA 3049

28 March 2019

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Immigration

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Judicial Review

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