AUS Fertilizer Pty Ltd (Migration)

AUS Fertilizer Pty Ltd (Migration) [2017] AATA 749 (12 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  AUS Fertilizer Pty Ltd
CASE NUMBER:  1512365
DIBP REFERENCE(S):  BCC2015/994059
MEMBER:Brook Hely
DATE:12 May 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 May 2017 at 1:51pm
CATCHWORDS

Migration – Approval of nominated positions (employer nomination) – 2 years full time – Direct Entry Nomination stream – Sufficient financial capacity – Training benchmarks – Expanding workforce
LEGISLATION
Migration Regulations 1994, Schedule 2, r 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 20 August 2015 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 31 March 2015. 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 Direct Entry Nomination stream.
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 that the applicant had demonstrated sufficient financial capacity to employee the nominated worker for at least two years.
The applicant appeared before the Tribunal on 12 May 2017, with Ms Sulan Yang giving oral evidence on the applicant’s behalf. The applicant was represented in relation to the review by its registered migration agent.
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.
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). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The nomination was made on the approved form and was accompanied by the appropriate fee. The Tribunal is also satisfied from the evidence relating to the ongoing operations of the business (as discussed below) that the application has identified a need for the nominator to employ a paid employee under its direct control.
As the application was made prior to 14 December 2015, the requirement to provide written certification relating to conduct that contravenes s.245AR(1) does not arise.
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.
In response to the Tribunal’s s.359(2) letter requesting evidence to show that it meets all the requirements of r.5.19(4), the applicant has provided several documents to show that the applicant is actively, lawfully and directly operating the relevant business in Australia. The Tribunal has also had regard to the original documents submitted to the Department as part of the application. Specifically, the applicant has provided an ASIC company search, recent Business Activity Statements and financial statements for the company, as well as PAYG summaries and payslips for the nominated worker. The Tribunal also received oral evidence at the hearing regarding the ongoing operations of business. The Tribunal is satisfied from this evidence that 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.
In the present case the nominator’s business activities do not include labour hire. 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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant has provided a copy of the relevant employment contract which states explicitly that the position is a full-time position and will be available for at least 2 years. The Tribunal is satisfied from this document that the nominated position will remain open to the nominated worker for at least two years full-time without any express exclusion of the possibility of an extension thereafter.
The Tribunal has also considered the financial capacity of the applicant to ensure its ability to meet this commitment to providing two years of full-time employment to the nominated worker. The Tribunal acknowledges the concerns of the delegate in relation to the financial capacity of the applicant to meet its wage obligations to the nominated worker for at least two years. Specifically, the delegate was concerned about the significant increase in the nominated worker’s salary from $69,174 to $185,000, according to the documents submitted. The delegate was also concerned that the financial documents submitted to the Department did not indicate a sufficient scale of operation and financial viability to meet its wage obligations.
As part of the review application, the applicant’s agent has provided a detailed written submission outlining the applicant’s financial position and highlighting flaws in the reasoning of the delegate. Relevantly, it was noted that the nominated worker has been receiving her annual salary of $185,000, although most of this remuneration was provided by the applicant’s parent company and was therefore not recorded in the financial statement as wages. The agent explained at the hearing that the payments were structured this way to comply with the overseas business sponsorship obligations of the Chinese parent company, namely the requirement that the overseas business sponsor directly employ Ms Yang (as it’s sponsored subclass 457 visa holder). The agent also explained that the applicant’s liabilities recorded on its balance sheet was comprised of primarily trade debts to its parent company for which no payment date was set, as well as a management fee to its parent company to cover the wage paid to the nominated worker. As such, it was submitted, the applicant had no immediately repayable liabilities and held assets of over $800,000, leaving it in a very strong financial position to meet its wage obligations to the nominated worker. The agent also provided to the Tribunal financial statements for the year ending 31 December 2016, as well as a profit and loss statement for 1 January 2017 – 31 March 2017, which showed a healthy net profit and continuing growth in the applicant’s profit and net assets. The documents submitted also show a significant increase in the applicant’s workforce, as well as its ability to meet this expanding wage expenditure.
Having regard to the additional documents submitted to the Tribunal, as well as the detailed explanation provided by the applicant’s agent, the Tribunal is prepared to accept that the applicant possesses sufficient financial capacity to provide two years of full-time employment to the nominated worker in accordance with the proposed terms and conditions of 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.
The applicant does not employ any Australian citizen or permanent resident to perform equivalent work as the nominated worker. Nevertheless, the terms and conditions in the employment contract for the nominated worker are consistent with the National Employment Standards. The Tribunal also accepts from the JobOutlook data submitted by the applicant’s agent that the proposed salary for the position of $185,000 is no less favourable than average market rates.
Having regard to the above, the Tribunal is satisfied that the terms and conditions of 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 Tribunal is satisfied from the above that the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is nothing before the Tribunal to show any adverse information known about the relevant business or anyone associated with it. The Tribunal also received oral evidence from Ms Yang confirming that neither the nominator nor any person associated with it has ever been the subject of any warnings, sanctions, investigations or any other problems with the Department or any other government agency, either in relation to this application or for any other reason.
The Tribunal is satisfied from the above that 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 nothing before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with laws relating to industrial relations. The Tribunal also received oral evidence from Ms Yang confirming that the applicant had never been the subject of any warnings, sanctions, investigations or any other problems with any State, Territory or Commonwealth government agency involved with workplace relations. She also confirmed that the applicant has never had legal proceedings brought or threatened against it by any of its employees.
The Tribunal is satisfied from the above that the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training benchmarks 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:
·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 15/059), and certain specified training benchmarks will be 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 at the ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied that the tasks to be performed in the position correspond the tasks of an occupation specified in the relevant instrument, noting that the nominated occupation of Corporate General Manager appears in Column A of Schedule 2 to IMMI 15/059 as provided by paragraph 4 of that instrument.
It is not in dispute that the applicant’s business has been operating for more than 12 months. The relevant training benchmarks are set out in legislative instrument IMMI 13/030. Relevantly, the training benchmarks require 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 the business. In terms of calculating the overall payroll of the business, the Tribunal notes that there has been a significant expansion of the applicant’s workforce over the past 12 months. The Tribunal accepts the figure provided by the applicant’s accountant dated 17 February 2017, according to which the applicant has incurred salary expenditure of $334,973 over the 12 month period ending 31 January 2017. The Tribunal also accepts from the invoices supplied that the applicant has incurred a total of $3600 in training expenses for its employees over this 12 month period, which the Tribunal accepts to be equivalent to more than 1% of its payroll. The Tribunal also accepts the evidence given at the hearing that these training sessions were attended by employees of the applicant and that the training related to the purposes of the business. The Tribunal also accepts the evidence given that the applicant’s financial forecast has made an allowance for an increase in training expenditure relevant to the recent increase in the size of its workforce.
Having regard to the above, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(i) are met and, accordingly, that r.5.19(4)(h) is met in its entirety.
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.
Brook Hely
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
(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;
(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 at a skill level of ANZSCO skill level 1, 2 or 3;
(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).

[2017] AATA 749

12 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Standing