Ausia Holdings Pty Ltd (Migration)

Ausia Holdings Pty Ltd (Migration) [2020] AATA 3962 (1 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ausia Holdings Pty Ltd
CASE NUMBER:  1727695
DIBP REFERENCE(S):  BCC2016/1854488
MEMBER:Cathrine Burnett-Wake
DATE:1 September 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 1 September 2020 at 10:10am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Marketing Specialist – training commitments and obligations – Training Benchmark B – evidence of training expenditure – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), 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 19 October 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 26 May 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(i)(B)(I) of the Regulations because no evidence was provided to substantiate claims pertaining to training expenditure.
It should be noted that the Tribunal has received a substantial amount of information that was not before the delegate at the time they made their decision.
The applicant appeared before the Tribunal on 3 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Changrong Zhu for Ausia Holdings Pty Ltd and Dr Chooi Beh, who is the applicant's accountant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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.
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 identified occupation in the application is Marketing Specialist (ANZSCO 225113).
The Tribunal notes that the nominee has previously been granted a subclass 457 for a 48-month period with the nominator in the position of Marketing Specialist and the nominee has been undertaking the role since 2014 under the direct control of the nominator. Evidence has been given to the Tribunal both documentary and verbally at hearing how the position was needed and the fact the nominee was and has been employed in the role since 2014 is sufficient to demonstrate the need for them to employ a paid employee to work in the position under their direct control. The Tribunal accepts this.
Accordingly, the requirement in r.5.19(4)(a) 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 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 applicant is actively and lawfully operating a business in Australia, being a Travel Agency specialising in inbound travel to Australia from Asia.
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.
The applicant is not 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 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has had regard to the employment contract between the parties. The contract confirms the nominee will be employed on a full-time basis for at least two years, and that the employment contract does not expressly exclude the possibility of extending the period of employment.
The Tribunal has had regard to the documents provided on review, including current financial statements and BAS. The Tribunal notes that the applicant’s business is profitable and financially viable.
On balance, the Tribunal is satisfied on the totality of the evidence that the applicant has the financial capacity to maintain the nominee's salary as they have been doing since 2014.
The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period 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 evidence before the Tribunal indicates that the nominee's base salary is $210,000. It was noted in the application form and organisational chart that there is no Australian performing equivalent work as a Marketing Specialist at the same location.
The representative provided detailed submissions regarding the nominee’s salary and how they were no less favourable than those that would apply to an Australian citizen or an Australian permanent resident performing equivalent work. The submission contained reference to Salary surveys and other salary data, including from Payscale.com and Jobsoutlook.gov.au. The Tribunal accepts the submission made by the representative on behalf of the nominator.
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 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 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 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, that Fair Work or any other government agency has taken action against the applicant in relation to workplace relation laws. As such, the Tribunal is satisfied that the applicant has satisfactorily complied with workplace relations laws.
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 16/060 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.
The Tribunal has reviewed the position description provided as part of the application as well as further supplementary evidence supplied to the Tribunal regarding the position and has considered the oral evidence given at hearing. Based on the position description that was provided and the further evidence, the Tribunal is satisfied that the tasks to be performed in the nominated position correspond with those listed within the relevant instrument for the occupation of Marketing Specialist and will be performed in Australia. Further, and as already noted earlier in the decision, the applicant was previously granted a subclass 457 for a 48-month period in the nominated occupation of Marketing Specialist and has been undertaking the role with the nominator since 2014.
As noted at the beginning of this decision, the delegate refused the nomination application on the basis they were not satisfied the applicant met the training requirements pertaining to 5.19(4)(h). Evidence has subsequently been provided to the Tribunal of the applicant’s ability to meet training requirements, which was not before the delegate at the time of primary decision.
Relevantly for this application, as the applicant had been in operation for at least 12-months prior to the application having been lodged, evidence in regard to training expenditure must be provided to demonstrate that the required expenditure for training, as prescribed in IMMI 13/030,[1] was incurred in the 12 month period immediately before the lodging of the nomination. This applies regardless of the benchmark (A or B) the nominator seeks to satisfy in accordance with the instrument.
[1]IMMI 13/030 <
The applicant made claims that they had met ‘training benchmark B’ in accordance with IMMI 13/030 and had spent the equivalent of 1% of their payroll on the training of Australian citizens or permanent residents in the 12 months immediately before lodging the nomination application.
This nomination application under review was lodged on 26 May 2016. The Tribunal has reviewed the financial statements of the applicant for the 2016 financial year to determine the required expenditure in the 12 months immediately before lodging the nomination. The financial statements demonstrate that salaries, wages, and superannuation contributions combined, total $269,672. As such, 1% of the applicant’s payroll equates to $2,696, which is the minimum amount the applicant must demonstrate they had spent to meet ‘training benchmark B’.
The nominator has provided evidence to the Tribunal that they spent $3,200 in the relevant period. Training receipts have been provided. The Tribunal is satisfied that the training expenditure is in accordance with IMMI 13/030, and can be claimed towards meeting ‘training benchmark B’. As such, the Tribunal is satisfied that the applicant has met and exceeded the required expenditure for training, as prescribed in IMMI 13/030, and that this expenditure was incurred in the 12-month period immediately before the nomination application was lodged.
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.
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.
…
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).

[2020] AATA 3962

1 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal