Aveva Pty Ltd (Migration)

[2019] AATA 3290

Aveva Pty Ltd (Migration) [2019] AATA 3290 (22 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Aveva Pty Ltd

CASE NUMBER:  1704297

DIBP REFERENCE(S):  BCC2016/2590630

MEMBER:Karen McNamara

DATE:22 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 22 July 2019 at 12:04pm

CATCHWORDS

MIGRATION – nomination – Temporary Residence Transition nomination stream – training requirements – evidence provided – nominee position made redundant – decision under review affirmed

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 17 February 2017 to reject the application by AVEVA Australia 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 5 August 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 Tribunal has received a copy of the delegate’s decision record with the application for review.

5. On 17 February 2017, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) (f) of the Regulations. The delegate was not satisfied the applicant had provided sufficient evidence to demonstrate they had fulfilled commitments made related to meeting their training requirements during the period of their most recent approval as a Standard Business Sponsor.

6. The applicant lodged an application for review with the Tribunal on 9 March 2017. Provided with the application were numerous documents, including evidence in support of the applicant’s training expenditure. This evidence was in the form of receipts for flight and accommodation for employees attending offshore training for the period August 2015 to September 2017. 

7. The applicant was represented in relation to the review by its registered migration agent       (the representative).

8. On 10 May 2019, the applicant was invited to provide updated and current information regarding the criteria in r.5.19(3) for approval of the nomination. In response, the applicant provided a submission dated 24 May 2019, a job description for the position Account Manager and AVEVA Group 2018 Annual Report.

9. On 13 June 2019, the Tribunal invited the applicant and nominee to attend a hearing scheduled for 16 July 2019.

10. In response to the hearing invitation, the applicants’ authorised representative advised the Tribunal by email on 13 June 2019 that he wished to have a discussion with the Tribunal and that the nominee was no longer employed by AVEVA.

11. The Tribunal contacted the representative on 17 June 2019. The representative enquired that given the nominee was no longer employed by AVEVA Pty Ltd could the review still proceed and if successful would his client be able to obtain a refund of the application fee. The Representative was advised that the review could still proceed and pending the outcome his client may be entitled to a refund.  The representative advised that he would bring this to his client’s attention and noted that the person initially authorised on behalf of AVEVA Pty Ltd to look after this matter was no longer dealing with this application

12. On 10 July 2019, the Tribunal wrote to the applicant seeking their advice as whether they intended to continue with their application having regard for advice received by the Tribunal that the nominee was no longer in their employ.

13. On 11 July 2019 the representative advised the Tribunal by email that representatives on behalf of the applicant were unavailable to attend the hearing on 16 July 2019 and that the representative wished to have a short conversation with the Tribunal in regard to whether findings could be made by the Tribunal in relation to other matters which are relevant to the nomination refusal. The representative advised that he wished to connect with the hearing and whether he required formal authorisation from the applicant to speak on their behalf.

14. The Tribunal contacted the representative on 12 July 2019 to confirm arrangements for the hearing as to who would be attending and logistical arrangements to be made in so far as attendance of the representative via telephone from Melbourne and whether his clients would be attending via video link from Perth. The representative confirmed that he would attend via telephone and that the video hearing in Perth was no longer required.

15. Hearing arrangements were confirmed and communicated to the representative on 12 July 2019.

16. On 15 July 2019, the Tribunal contacted  the representative via email seeking confirmation as to whether the representative intended to submit any new evidence or make further submissions on behalf of his clients, of whom the Tribunal noted would not be attending the hearing. The Tribunal advised the representative that if he intended to provide evidence on behalf of his clients he would require their formal authorisation.

17. The representative appeared before the Tribunal on 16 July 2019. The Tribunal was told that the representative would be providing evidence on behalf of his clients and that his clients would not be attending because the nominee was no longer in the employ of the nominator.  The representative told the Tribunal that he had not invited the nominee Mr Lamb to attend. The Tribunal noted that the representative did not have nor provided the Tribunal with formal authorisation from his clients to provide evidence on their behalf.

18. In consideration of no formal authorisation before the Tribunal for the representative to provide evidence on behalf of the applicant and nominee, the Tribunal invited the representative to make submissions on behalf of his clients.

19. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    BACKGROUND

20. The applicant is an associated entity of the British company AVEVA Group operating in Australia. The business provides engineering and industrial software. AVEVA Group was recently acquired by Schneider Electric but continues to operate independently.  The Australian arm of the business was registered on ASIC in February 2004 and operates out of Perth, Western Australia.

21. The Tribunal notes that Department records show that the applicant’s most recent approval as a Standard Business Sponsor is 9 September 2015 until 9 September 2020. The applicant sponsored Mr Robert Lamb (the nominee), 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 including evidence to support the applicant had met their training obligations as a Standard Business Sponsor. This evidence included numerous invoices for flights and accommodation for employees to attend offshore training in addition to the respective training agendas and programs.

22. On 17 February 2017, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) (f) of the Regulations because they were not satisfied the applicant had provided sufficient evidence to demonstrate they had fulfilled commitments made related to meeting their training requirements during the period of their most recent approval as a standard business sponsor. Specifically the delegate found inter alia that the information provided by the applicant in regard to meeting their training obligations indicated on the job training and as such the information provided by the applicant, did not satisfy the criteria to be demonstrated by the applicant  specified under IMMI 13/030 relating to on the job training.

23. The nominee, was employed by the applicant in the occupation of ICT Sales Representative (ANSCO 225213) from the granting of his 457 Visa on 26 September 2013 and worked with the nominator until 17 May 2019.

24. 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.

25. The Tribunal notes the submissions made by the representative in regard to the applicant’s claims they met their training obligations as a Standard Business Sponsor through the payment of flights and accommodation for their Australian employees to attend offshore training courses. The Tribunal notes it is not uncommon for multinational employers to conduct training offshore and in this instance, the applicant demonstrated that the nominated  training courses attended by their Australian employees, was related to the purpose of the business.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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.

27. Having carefully considered the evidence before it, the Tribunal was unable to be satisfied that the requirements in r.5.19(3)(d) had been met. The Tribunal’s reasons follow;

    Future employment of the visa holder: r.5.19(3)(d)

28. 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.

29. The nominator has indicated in the application form that the nominee was employed fulltime in Australia in the position for which he held the Subclass 457 visa for at least 2 of the 3 years preceding the nomination application. On this basis the Tribunal considers that the nominee is a person to whom r.5.19(3) (c ) (i) applies and as such must satisfy the requirement in r.5.19(3)(d).

30. The Tribunal notes that the occupation for which the nominee held the Subclass 457 visa, as indicated on the material submitted, was that of ICT Sales Representative (ANZSCO 225213). As the occupation is not one of those specified in the relevant instrument for the purposes of r.5.19(3) (c )(ii), the nominee is not a person described in r.5.19(3) (c )(ii) and the applicant is therefore not exempt from having to satisfy the requirement in r.5.19(3)(d).

31. As r.5.19(3)(d) applies in this case, the Tribunal now turns to consider whether the nominee will be employed on a full time basis in the position for at least two years.

32. Written submissions to the Tribunal dated 24 May 2019, state “ AVEVA PTY LTD in Australia continued to employ Mr Lamb in the role of Account Manager until May 17, 2019.  That employment relationship has now ceased.” The submission further stated “ AVEVA PTY LTD continued to support Mr Lamb’s application for a permanent visa – he was an important member of their team for well over 4 years.  Unfortunately, owing to no fault of his own his position became redundant.”  

33. At the hearing on 16 July 2019, the representative confirmed that Mr Lamb was no longer in the employ of the nominator and confirmed that Mr Lamb had recently been made redundant.

34. The Tribunal has had regard to the information before it, that the nominee is no longer in the employ of the applicant and therefore is not satisfied that the applicant will provide the nominee with two years of fulltime employment. Therefore the Tribunal finds that the requirements of r.19(3)(d)(i) are not met.

35. Accordingly the requirement in r.5.19(3)(d) is not met.

36. The Tribunal notes the representative’s submission that had his clients not experienced delays in the processing of the review application, the representative believed that the applicant would have succeeded with the nomination application and hence the nominee would have been successful with his visa application. The Tribunal acknowledges that the delay in having the matter heard is unfortunate and may have impacted on the nominator and nominee, however this does not overcome the fact that the nominee was made redundant and has ceased to work for the nominator.

37. As the Tribunal has found that a mandatory requirement for approval of the nomination has not been met, it is not necessary for the Tribunal to consider any other requirement for approval of the nomination.

38. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

39. The Tribunal affirms the decision under review to refuse 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.