BAJABOARD INTERNATIONAL PTY LTD (Migration)

[2020] AATA 1595

BAJABOARD INTERNATIONAL PTY LTD (Migration) [2020] AATA 1595 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  BAJABOARD INTERNATIONAL PTY LTD

CASE NUMBER:  1728490

DIBP REFERENCE(S):  BCC2017/1839099

MEMBER:Sheridan Lee

DATE:13 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 13 February 2020 at 10:01am

CATCHWORDS

MIGRATION – nomination approval of a position – Temporary Residence Transition nomination stream – position of Electrical Engineering Technician – sustaining the position for at least two years – standard business sponsor – nominee previously employed in the position – back payment of the training benchmark – decision under review set aside        

LEGISLATION

Migration Act 1958, s 140
Migration Regulations 1994, 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 27 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).

2. Bajaboard International Pty Ltd applied for approval to nominate Alessandro Noccioli to work in the occupation of Electrical Engineering Technician on 24 May 2017. 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 as she was not satisfied that the company could afford to sustain the position on a full-time basis for at least two years, as required under r.5.19(3)(d)(i).

5. Mr George Li appeared before the Tribunal to give evidence and present arguments on behalf of Bajaboard International on 19 December 2019. The Tribunal also received oral evidence from the nominee, Mr Noccioli

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.

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

9. 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.

10. 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.

11. The application for approval identifies Alessandro Noccioli as the nominee. Departmental records show that Mr Noccioli held a Subclass 457 visa from 23 June 2016 that was granted based on satisfying cl.457.223(4) of Schedule 2 (his second Subclass 457 visa).

12. The occupation identified in the application is that of Electronic Engineering Technician (ANZSCO 312412). 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 (2412) as the occupation carried out by the nominee whilst he held the Subclass 457 visa.

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

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

14. 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.

15. Departmental records confirm that Bajaboard International was the standard business sponsor who last identified Mr Noccioli 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).

16. At the Tribunal hearing, Mr Li gave evidence that the company manufactures and distributes electric skateboards. Parts are sourced offshore, and the product is assembled and distributed from the company premises in Australia.

17. The Tribunal has before it an Australian Securities and Investments Commission extract showing that Bajaboard International has been registered as an Australian Proprietary Company since 26 May 2014. The company has also supplied Business Activity Statements (BAS) lodged with the Australian Taxation Office (ATO) for the period January 2018 to June 2019 and company financials for the year ended 30 June 2019. The company operates Twitter, LinkedIN and Facebook accounts and has an active website at bajaboard.com.au.

18. Given the above, the Tribunal is satisfied that the requirement in r.5.19(3)(b) is met.

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

19. 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.

20. In this case, r.5.19(3)(c)(i) is the relevant provision. The applicant submitted the nomination application on 24 May 2017.

21. At the hearing, Mr Li gave evidence that he first employed the nominee as an Electrical Engineering Technician in early 2015, but was unable to recall the exact date. He has worked full-time in the position since that time.

22. On his Subclass 186 visa application, the nominee listed his commencement date as 7 February 2015 and the Tribunal accepts this to be true. A PAYG for Mr Noccioli the financial year ended 30 June 2015 was provided, supporting an early 2015 commencement.

23. The Tribunal has before it a notification of the grant of a Subclass 457 visa to the nominee for the position of Electrical Engineering Technician, sponsored by Bajaboard International, issued on 23 June 2016.

24. As such, the Tribunal finds that the nominee had been employed full time in Australia in the position for which he holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application. The requirement in r.5.19(3)(c) is met.

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

25. 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.

26. The Tribunal has before it a contract of employment between Bajaboard International and Mr Nocciolo commencing from 1 January 2020. The contract of employment provides for a minimum of two years full-time employment.

27. Having reviewed the company financials and BAS, the Tribunal is satisfied that the company can afford to sustain the position on a full time basis. The Tribunal further notes that the company has demonstrated its ability to support the position for the last five years.

28. 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)

29. 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.

30. The most recent contract of employment provides for an annual salary of $68,000. At the hearing, Mr Li gave evidence that he does not employ any other staff in the same position.

31. The Tribunal has considered that Payscale lists the average pay for an Electrical Engineering Technician in Melbourne as $67,193 and Indeed lists the average salary for an Engineering Technician as $66,980.

32. 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.

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

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

34. 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.

35. The most recent approval of Bajaboard International as a standard business sponsor commenced on 11 February 2016.

36. The company supplied two receipts as evidence of training expenditure:

    ·     Receipt issued by Sydney Institute of TAFE on 9 May 2017 for a payment of $2,539.

    ·     Receipt issued by TAFE NSW on 29 October 2019 for a payment of $3,264.

37. In submissions dated 7 January 2020, the applicant conceded that it had originally overlooked the payment of the training benchmark from April 2017 onwards. However, the company incurred $146,020 in payroll expenses from the period April 2017 until March 2019 and made a back payment on 29 October 2019 to cover that period. The Tribunal is satisfied that the payment covers the training contribution that was required and it is reasonable to disregard the requirement to have complied during the relevant period.

38. In addition to fulfilling the commitment relating to training, the Tribunal is also satisfied that the applicant has also kept the required records showing that they have complied with their sponsorship obligation relating to the training requirement. Accordingly, the requirement in r.5.19(3)(f) is met.

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

39. 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. 

40. 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.

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

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

42. 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.

43. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws. Further, the applicant has provided evidence of currency with workers compensation legislation and a copy of the nominee’s employment contract that provides the minimum terms and conditions of employment set out in workplace relations legislation.

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

45. 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

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

    Sheridan Lee
    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.