AUSTRAL AIR CONDITIONING SERVICES PTY LTD (Migration)

[2019] AATA 2825

AUSTRAL AIR CONDITIONING SERVICES PTY LTD (Migration) [2019] AATA 2825 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AUSTRAL AIR CONDITIONING SERVICES PTY LTD

CASE NUMBER:  1710137

DIBP REFERENCE(S):  BCC2016/3430791

MEMBER:Karen McNamara

DATE:28 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 May 2019 at 9:29am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination – Mechanical Engineer – term of employment – extension of contract not expressly excluded – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), 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 10 May 2017 to reject the application by Austral Air Conditioning Services Pty Ltd (the applicant) 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 16 October 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (3)(d) of the Regulations because they were not satisfied that the applicant demonstrated that the terms and conditions of the nominee’s employment will not include an express exclusion of the possibility of extending the period of employment under regulation 5.19 (3)(d)(ii).

5. Ms Venessa Dib appeared before the Tribunal on behalf of the applicant on 14 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee Mr Paul Azadian.  

6. The applicant was represented in relation to the review by its registered migration agent.

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 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

9. The applicant operates an air conditioning installation, maintenance and repair business with focus on commercial design and installation.

10. The applicant sponsored the nominee, Mr Paul Azadian for his Subclass 457 visa, which Department records confirm that he held at the time of the nomination application.  When making the application the applicant provided information confirming the business is lawfully operating. Information before the Tribunal includes a contract of employment between the applicant and the nominee, signed on 20 April 2018, stating the base rate of pay will be $59,238 per year plus 9.5% superannuation, the total salary being $64,865.  The applicant also provided various documents demonstrating training expenditure during the applicant’s 457-sponsorship period of 24 December 2014 to 24 December 2017.

11. On 10 May 2017, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (3)(d) of the Regulations because they were not satisfied that the applicant demonstrated that the terms and conditions of the nominee’s employment will not include an express exclusion of the possibility of extending the period of employment under regulation 5.19 (3)(d)(ii). The delegate made the decision on the basis of information before them being an Offer of Appointment and Employment Conditions dated 14 October 2016.

12. The applicant has provided submissions as to why the business relies on the ongoing sponsorship of the nominee. The business was registered on ASIC in 1995 and operates out of Mona Vale, Sydney NSW, providing air conditioning installation, maintenance and repair services in commercial buildings. The business currently employs 55 employees. The majority of the employees are Australian citizens/permanent residents.

13. The nominee, Mr Paul Azadian, has occupied the position of Mechanical Engineer since the granting of his 457 Visa in October 2014 and continues to work in this position. The applicant told the Tribunal that Mr Azadian is a valued employee and that his ongoing employment is valuable to the ongoing operations of the business. 

14. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant.  While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

15. At the hearing the Tribunal discussed with the applicant the requirements of r.19(3). The following is a summary of the oral and written evidence provided to the Tribunal during and following the hearing.

    The application must be compliant: r.5.19(3)(a)

16. 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.

17. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly the requirements of r.5.19(3)(a)(i) are met.

18. The application for approval identifies Mr Paul Azadian, who according to Department records, has held a subclass 457 Visa since 16 October 2014 that was granted on the basis of satisfying cl.457.223(4) of Schedule 2. Accordingly the requirements of r.5.19(3)(a)(ii) are met.

19. The occupation identified in the application is Mechanical Engineer (ANZSCO 233512). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee, the nominee’s contract of employment, payroll records and Department records, that the occupation identified is the same occupation as that carried out by the nominee as the holder of a subclass 457 Visa. The Tribunal is also satisfied that this occupation carries the same four- digit code as the occupation carried out by the nominee whilst he held the Subclass 457 Visa. Accordingly the requirements of r.5.19(3)(a)(iii) are met.

20. Given the above findings, the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

21. 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.

22. The Department’s records confirm the applicant was an approved standard business sponsor in the period 24 December 2014 to 24 December 2017. The applicant has provided to the Tribunal copies of business activity statements and financial records recording the business has income from sales and has paid wages and withheld tax. The business’s financial statements confirm that the business derives income from the ongoing provision of air conditioning installation and associated services. The applicant has also provided ASIC records confirming that the business name is registered.

23. Based on the ASIC information, financial documents and the applicant’s oral evidence, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and did not, meet regulation 1.20DA or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor.

24. Given the above, the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

25. 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.

26. The applicant told the Tribunal that the nominee has been employed in the position since August 2014. In October 2014, the nominee was granted a subclass 457 Visa sponsored by the applicant and has continued to be employed by the applicant since. The applicant has provided copies of the nominee’s ATO PAYG and Notice of Assessments confirming that the nominee, during the term of his employment with the applicant, has been paid in excess of the full time salary of $58,240 per annum i.e. the amount stated on the nomination application form dated 16 October 2016. The nominee has also provided a contract of employment dated 20 April 2018.

27. The applicant told the Tribunal that the nominee has not taken any unpaid leave during his employment and has worked in a full time capacity in the position of Mechanical Engineer for a period of two years whilst holding a subclass 457 visa. Evidence before the Tribunal including a letter from the business’s Managing Director, company payroll records and Mr Azadian’s ATO Notice of Assessment’s confirm Mr Azadian’ s period of full time employment with the applicant.

28. Based on this evidence Tribunal is satisfied the nominee has been employed in a full time capacity by the applicant as a Mechanical Engineer since 19 August 2014. The Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 Visa for at least two years in the three-year period immediately before this nomination application was made. The requirements in r.5.19(3)( c)(i) have therefore been met.

29. 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)

30. 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.

31. The Tribunal has had regard to the contract for employment for the nominee dated 20 April 2018. The contract, which sets out the terms and conditions of employment, indicate that the period of employment is two years upon the granting of a subclass 187 visa. At the hearing, the nominee advised the Tribunal that the business would employ the nominee indefinitely for as long as the nominee wished to stay in their employ. The contract stipulates the base salary is $59,238 per annum plus $5,627 superannuation with hours of work 9am to 5:30 pm Monday to Friday. The nominee is to be paid superannuation in accordance with legislative requirements. His leave entitlements include annual, sick and personal leave. There is no term excluding an extension of the contract. The Tribunal has had regard to the business’ financial documentation and ATO BAS statements and the nominees ATO Notices of Assessments. Based on this material, the Tribunal is satisfied that the nominator has the financial capacity to maintain the nominee’s full time employment as they have done since August 2014.

32. The Tribunal is satisfied based on the employment contract dated 20 April 2018 and other 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.

33. 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)

34. 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.

35. The contract of employment dated 20 April 2018 sets out the terms and conditions of employment and indicates that the nominee’s salary is $59,238 per annum excluding superannuation. The Tribunal has received payroll records, payslips and ATO Notices of Assessment’s confirming that Mr Azadian in the 2017 financial year was paid a taxable income of $60,051 and for the 2018 financial year paid $67,067. The Tribunal is satisfied the nominee will be paid in accordance with the terms of employment.

36. The Tribunal is satisfied on the totality of the evidence before it that the terms and condition applicable to the 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.

37. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

38. 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.

39. The Tribunal finds the period of the applicant’s most recent sponsorship approval was          24 December 2014 to 24 December 2017.

40. The Tribunal has considered the financial material before it and is satisfied the payroll expenditure for 24 December 2016 to 23 December 2017 was $4,582,602 and 24 December 2017 to 23 December 2018 is $5,304,590.

41. Recent expenditure on training for the sponsorship period immediately before lodgement     (16 October 2016) was $88,440 which exceeded 1% of the total payroll (Financial statements provided by the applicant for the 2016 Financial Year reported wages expense of $3,808,723).

42. The Tribunal has considered information presented by the applicant and oral evidence at the hearing and is satisfied that during the approved sponsorship period 24 December 2014 to 24 December 2017, training expenditure was (2015) $152,779, (2016) $88,440 and (2017) $187,820. This expenditure included the employment of apprentices. The applicant has provided apprenticeship agreements, payroll records and PAYG summaries for the apprentices employed during the sponsorship period, which support the expenditure amounts claimed by the applicant.

43. The Tribunal is satisfied that the applicant’s expenditure over the approved sponsorship period was at least 1% of the payroll expenditure. The Tribunal notes that the expenditure exceeded the 1% requirement.

44. The Tribunal is therefore satisfied that the applicant has spent well over 1% of the payroll expenditure in the three-year period of the standard business sponsorship approval and that the applicant has satisfied Training Benchmark B requirements. 

45. Accordingly, the requirement in r.5.19(3)(f) is met.

    No adverse information known to Immigration: r.5.19(3)(g)

46. 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. 

47. There is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.

48. Accordingly, the requirement in r.5.19(3)(g) is met.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

49. 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.

50. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.

51. Accordingly, the requirement in r.5.19(3)(h) is met.

    Conclusion

52. 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

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

    Karen McNamara
    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.