Balaram PTY LTD (Migration)

[2022] AATA 4893

Balaram PTY LTD (Migration) [2022] AATA 4893 (28 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Balaram PTY LTD

REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)

CASE NUMBER:  1917118

HOME AFFAIRS REFERENCE(S):          BCC2018/3104631

MEMBER:Namoi Dougall

DATE:28 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 28 November 2022 at 11:09am

CATCHWORDS  
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – ICT Project Manager – term of employment – financial capacity – annual market salary rate – profit and loss statements – balance sheets – BAS statements – 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 Home Affairs on 26 June 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 17 August 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(5) of the Regulations because on conflicting information as to the number of employees and wages reported and on the lack of documentation the delegate was not satisfied that the applicant had the financial capacity to employ the nominee on a salary of $90,000 plus the superannuation guarantee for at least 2 years.

5. The director of the applicant, Mr Vijay Kowtal appeared before the Tribunal on 3 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sharandev Singh, the nominee.

6. The applicant was represented in relation to the review.

   BACKGROUND

7. At the hearing Mr Kowtal stated that the business provides IT consulting services to the business’s clients. Currently CBA, Suncorp, Transport for NSW, ACT Department for Health are some of the business’s clients. The business was established in June 2001 and currently 7 staff are employed. The business provides project management for example for CBA the business is assisting clients with IT solutions to improve their ability to report to regulatory authorities such as AUSTRAC and ASIC. Currently, the business has four projects and with the current staff this is the maximum number of projects they can manage but if there is more work the business can still recruit more staff.

8. 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

1. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

Application requirements – reg 5.19(4)(a)

1. Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:

   ·            be made in accordance with approved form 1395 (Internet);

   ·            identify the position;

   ·            identify a person in relation to the position;

   ·            identify an occupation in relation to the position,

   ·            identify the subclass and stream to which the nomination relates;

   ·            be accompanied by the fee mentioned in reg 5.37; and

   ·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act).

2. Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.

3. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.

4. On the basis of information in the Department’s file, the Tribunal is satisfied that the application:

   ·     was made in accordance with the approved form;

   ·     identified the position of ICT Project Manager (ANZSCO 135112);

   ·     identified Ms Sharandev Singh (the nominee) as the person in relation to the position;

   ·     identified the occupation of in relation to the position;

   ·     identified the Subclass 186 and Temporary Residence Transition stream to which the nomination relates;

   ·     was accompanied by the fee mentioned in reg 5.37; and

   · included a written certification by the nominator stating that the nominator has not engaged in conduct, in relation to the nomination, that constitutes a contravention of s.245AR(1) of the Act.

5. Further, the application identified the annual business turnover of the applicant for the last financial year as being $761472.

6. Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.

No adverse information known to Immigration – reg 5.19(4)(b)

1. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.

2. There is no information on the Departmental or Tribunal files that indicates that adverse information is known to the Department. Therefore, the Tribunal is satisfied that reg 5.19(4)(b) is met.

Mandatory licencing, registration and memberships – reg 5.19(4)(c)

1. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

2. In this instance, the relevant State or Territory is New South Wales, the relevant occupation is ICT Project Manager, and the date of application is 18 August 2018.

3. There is no information or evidence before the Tribunal that the nominated position requires mandatory licencing, registration or membership. Therefore, the Tribunal is satisfied that reg 5.19(4)(c) is met. Satisfactory compliance with employment laws - reg 5.19(4)(d).

Satisfactory compliance with employment laws – reg 5.19(4)(d)

1. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

2. There is no information or evidence before the Tribunal that the applicant does not have a satisfactory record of compliance with employment laws, therefore, the Tribunal is satisfied that reg 5.19(4)(d) is met.

Training contribution debts – reg 5.19(4)(da)

1. Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.

2. There is no information or evidence that the applicant has any debt due as mentioned in s 140Z of the Act. Therefore, the Tribunal is satisfied that reg 5.19(4)(da) is met.

Visa held by identified person at time of application - reg 5.19(5)(a)

1. Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:

   ·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or

   ·a Subclass 482 visa in the Medium-term stream; or

   ·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or

   ·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.

2. According to Departmental records, the nominee has held one Subclass 457 visa granted on 17 March 2016 for 4 years on the basis of sponsorship by a standard business sponsor being the applicant. The Tribunal is, therefore, satisfied that the nominee held a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream when the application for approval of a nominated position was made on 17 August 2018.

3. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.

Occupation requirements – regs 5.19(5)(b), (c), (d)

1. A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is ICT Project Manager.

2. Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).

3. Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c). The relevant instrument specifying the occupation in this instance is IMMI 18/049.

4. Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).

5. The Tribunal is satisfied that:

   ·The nominated occupation of ICT Program Manager is listed in the ANZSCO dictionary and has the same 6-digit occupation code (135112) as the occupation in respect to the most recent Subclass 457 visa which was granted.

   ·The nominated occupation is not listed in IMMI 18/049 which was the legislative instrument in force at the time of nomination application so there are no applicable caveats or exemptions for the occupation set out in IMMI 18/049. However, the applicant is exempt from reg 5.19(5)(c) by the provisions of IMMI 22/038 as she held a Subclass 457 visa on 18 April 2017.

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

6. In considering whether there is any information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, the Tribunal has regard to the task listed for the occupation of the unit group which ICT Project Manager is an occupation. The tasks listed in the unit group ICT Managers under ANZSCO are as follows:

   • analysing information needs and specifying technology to meet those needs
   • formulating and directing information and communication technology (ICT) strategies, policies and plans
   • directing the selection and installation of ICT resources and the provision of user training
   • directing ICT operations and setting priorities between system developments, maintenance and operations
   • overseeing the security of ICT systems

7. ANZSCO also states for the occupation of ICT project Manager that the occupation:

   ‘Plans, organises, directs, controls and coordinates quality accredited ICT projects. Accountable for day-to-day operations of resourcing, scheduling, prioritisation and task coordination, and meeting project milestones, objectives and deliverables within agreed timeframes and budgets.’

8. Provided to the Department and the Tribunal was a position description for the nominee which stated that her duties were:

   Technical project manager needs to perform various functions; the job description below shows major tasks, duties, and responsibilities that make up the role

   ·Evaluate complex situations using diverse sources of information

   ·Lead, monitor, and motivate different teams across the company and interact with staff at all levels in the organization

   ·Create and manage methods of management, communication plans, and processes

   ·Analyze, plan, and develop procedures and other management and technical duties

   ·Define the scope of the project, roes, and responsibilities along with various stakeholders

   ·Participate in the allocation of budget, staff and any other resource(s) that are needed to accomplish or achieve set out goals (projects), and also monitor the performance of every project

   ·Maintain correct project time frames, estimates, and status reports

   ·Responsible for the management of complex problems and development of processes for scheduling and administration

   ·Make sure that all required projects are completed and reviewed

   ·Responsible for identifying, clarifying and communicating the vision(s) and/or objective(s) of projects and show how the fall in place with, enhance, or inhibits such vision(s) and/or objective(s)

   ·Provide process improvement recommendations that are based on best practices and industry standards.

9. At the hearing Mr Kowtal stated that the nominee is a Technical Project Manager which involves managing projects to ensure the scope is clearly defined; the duration of the project and cost and resourcing of the project; and to ensure project meets milestones. The nominee also: holds regular meetings with stake holders; regularly reporting on the progress of the project; highlights risks and issues with the project; handles staff movements; ensures the system development lifecycle from start to initiating scope; ensures the business analysis is done; and getting the technical specifications written out and completed by the developer. Sometimes, depending on the scale of the project, the resources are not the businesses but the clients, so the nominee has to manage the resources whether they are internal or external. The nominee manages the unit and system testing. Finally, after testing the nominee liaises with the client about the delivery usually from the developer and works with the production support team to bring the project into the client’s location.

10. At the hearing the nominee stated that she works with CBA in the financial crime area. There is a regulatory initiative for regulatory reporting to agencies such AUSTRAC, APRA and ASIC to highlight potential money laundering activities. The nominee works with a team from 10 to 20 people depending on which initiatives. She manages the team; ensures they remain on track with the schedule and budget; ensuring the project is within scope; liaising with multiple stakeholders including external vendors and if there are multiple internal stakeholders; ensuring working together and identifying and addressing risk. If there are any issues around scope or the budget schedule and resourcing. Sometimes new people are required for the team and the nominee sometimes sits on the interview panel and discusses what skills are required. The nominee stated that there is a lot of documentation required such as weekly status reports. The nominee also maintains the risk registers and financial tracking reports showing actual expenditure against budget.

11. On the evidence the Tribunal is satisfied that the nominee is genuinely performing the tasks of the occupation of an ICT Project Manager as specified in ANZSCO.

12. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.

Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)

1. Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).

2. Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made:

   ·            a Subclass 457 visa in the Standard Business Sponsorship stream, or

   ·            a Subclass 482 visa in the Medium-term stream, or

   ·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a Subclass 482 visa in the Short-term stream.

3. Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 3 years during the period of 4 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.

4. If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least 3 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made.

1. In this case, the nomination application was made on 17 August 2018. The relevant instrument made under reg 5.19(6) IMMI 22/038. Having regard to the terms of that instrument, the Tribunal finds that for persons (such as the nominee) who on 18 April 2017, held a Subclass 457 visa the qualifying period is 2 years.

2. The Tribunal notes that the nominee’s Subclass 457 visa was granted on 17 March 2016.

3. Based on the nominee’s PAYG summaries for the financial years 2016 to 2022; the nominee’s Notice of Assessment for the financial years 2016 to 2021; the nominee’s employment contract with the applicant dated 9 August 2018; and the nominee’s payslips for the months of June and July 2022, the Tribunal is satisfied that the nominee has been employed by the applicant in the nominated occupation since February 2015.  The Tribunal is also satisfied that such employment was undertaken on a full-time basis in Australia. Based on Departmental records, the Tribunal is further satisfied that the nominee’s Subclass 457 visa was granted in relation to the position of ICT Program Manager.

47.Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.

Status of the nominator – reg 5.19(5)(h)

1. Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.

2. Departmental records indicate that the applicant was the last standard business sponsor to identify the nominee in an approved reg 2.72 nomination.

3. Based on the financial documents including ABN details, ASIC current and historical extract, company registration certificate, business activity statements, payslips and PAYG summaries and financial statements and other financial information, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia.

4. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.

Genuine need for employment – regs 5.19(5)(j) and (k)

1. Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 18/035): reg 5.19(7). The Tribunal is satisfied that the nominated occupation of ICT Project Manager is not an exempt occupation.

2. The position description provided to the Tribunal

3. Mr Kowtal stated at the hearing that the client CBA has liked the quality of the nominee’s work and how she engages with them. The nominee stated that she joined CBA in July 2018

4. Having considered all of the available evidence and taking into account that the nominee has worked with the applicant in the position since early 2017, the Tribunal is satisfied that the applicant has identified a need for the nominee to be employed in the position.

5. In relation to whether the nominee is employed under the nominator’s direct control of the applicant the Tribunal has considered Departmental policy. The nominee is employed under a contract with the applicant and the applicant hired the nominee and can dismiss the applicant. Further, the applicant pays the nominee her annual salary and pays the superannuation guarantee. The arrangements for the nominee to work at CBA are part of contractual arrangements between the applicant and CBA. Therefore, the Tribunal is satisfied that the nominee is employed under the applicant’s direct control.

6. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.

Future employment – regs 5.19(5)(l), (m), (n)

1. Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.

2. Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 18/035): reg 5.19(7).

3. Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.

4. Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

5. The occupation of ICT Project Manager is not exempt from reg 5.19(5)(l), which means that the nominee must be employed full-time for at least 2 years.

6. The Department was provided with an offer of employment dated 9 August 2018 and the Tribunal was provided with an offer of employment dated 1 July 2022. Subsequently after the hearing the Tribunal was provided with an offer of employment dated 1 November 2022. The offers of employment are signed by a director of the applicant and the nominee. All three appear to reflect the same terms and conditions for the full-time position of Technical Project Manager. Although the salary has increased from $90,000 to $120,000 plus the superannuation guarantee. The 2018 offer stated the end date to be with an option to extend further. Similarly, the July 2022 offer stated that the end date is 30 June 2024 with an option to extend further. The November 2022 offer states that the end date is 30 December 2024 with an option to extend further.

7. Given the above, the Tribunal is satisfied that the nominee will 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.

8. Provided to the Tribunal were internal profit and loss statements and balance sheets for the financial years ending 30 June 2019, 2020, 2021 and 2022. The profit and loss statements indicate that the turnover for those financial years were: $418,070; $479,963; $677,399 and $913,047 respectively. The profit or loss for the same years were: $1,291; -$33,222; $5,847; and $82,440 respectively. The balance sheets for the same years showed accumulated losses of: $73,216; $106,438; 100,591; and $18,152. Mr Kowtal stated that the trend of business is profitable and will provide a comparison of the 6 months to now and the 6 months from the previous year.

9. Provided to the Tribunal after the hearing were BAS statements 1 January 2021 to 30 September 2022 together with a comparison of the sales and payments made to the ATO the periods January to September 2021 and January to September 2022. The comparison indicates that in the 2021 period the applicant’s sales were $621,501 and in the 2022 period the sales were $691,313. Also provided was a letter from the applicant’s accountant, Lindsay W Hay & Associates Pty Ltd dated 9 November 2022 which stated that the applicant has met all payroll obligations since its inception in June 2001 and the accountant is confident it will continue to do so in the near future. The Tribunal notes that the applicant’s sales for the period 1 July 2022 to 30 September 2022 were $245,872.

10. On the evidence the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee at a salary of $120,00 per annum plus the superannuation guarantee for a period of at least 2 years.

11. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met

Annual earnings – reg 5.19(5)(o)

1. Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

• the annual market salary rate (the AMSR) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

• the AMSR, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT), unless the AMSR for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);

• the identified person’s annual earnings in relation to the occupation will not be less than the AMSR for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;

• the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and

• either there is no information known to Immigration that indicates the AMSR for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

1. As referred to above, the contract dated 1 November 2022 indicated that the nominee will be paid $120,000 per annum. The amount specified in the relevant instrument for the purposes of reg 2.72(15)(b) is $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

2. At the hearing Mr Kowlat stated that Mr Sivaramakrishnan is working on a project for Transport NSW as well as other projects and he is the Senior Project Manager or more a Program and Senior Product Manager as he is managing a number of projects. Sometimes the nominee does a number of small projects that are bundled together. Mr Kowtal stated that Mr Sivaramakrishnan is at a senior level because of his experience and because he has project managers, who manage one project each, reporting to him. The nominee has designers and developers reporting to her but not other project managers. The difference in experience is qualifications and time spent in the job. Mr Sivaramakrishnan has worked at Transport for NSW before and they are aware of the quality for his work and they have promoted him. Transport for NSW would like to have him supervise other project managers and projects.

3. At the hearing Mr Kowtal stated that Mr Madapada was recruited by the applicant for a specific client at a time when there was high demand and not enough Test Managers. The projects are willing to pay more and there are bonuses

4. On the organisational chart and the evidence at the hearing the Tribunal is satisfied that there is no employee performing equivalent work at the same location. The Tribunal is also satisfied that there is no relevant Fairwork Award for the nominee or the other employees of the applicant.

5. Clause 8(b) of the relevant instrument sets out the method for determining the AMSR where there is not an Australian worker performing equivalent work. In the circumstances of this review where there is no relevant FairWork instrument, state industrial instrument or transitional instrument, then the AMSR is the annual earnings of an equivalent Australian worker, must be determined by reference to relevant information. Relevant information is defined in the relevant legislative instrument as follows:

   Relevant information may include, but is not limited to:

   (a) information published on the Australian Government’s Job Outlook website;
   (b) job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position;
   (c) written advice from registered employer associations and/or unions;

   (d) remuneration surveys generated across the relevant industry by a reputable organisation or body.

6. Provided to the Tribunal on 28 June 2019, was a market salary survey from PayScale.com, a reputable organisation that generates renumeration surveys across relevant industry as to the average salary for an IT Project Manager. Unfortunately, the survey was for the position of IT Project Manager in Melbourne. Therefore, the Tribunal made its own enquiries on PayScale.com as to the average salary for an IT Project Manager in Sydney. PayScale.com indicated that the average range of salaries was $75,000 to $154,000 with the average being $117,513 per annum.

7. On the above the Tribunal is satisfied that the AMSR is $117,513 and that it has been determined by the applicant in accordance with the relevant instrument. The Tribunal is also satisfied that the AMSR is not less than the TSMIT. Further, the Tribunal is satisfied that and the applicant’s annual earnings of $120,000, excluding non-monetary benefits, are not less than the TSMIT and not less than the AMSR for the occupation of ICT Project Manager. For these reasons the requirements of reg 2.72(15)(c), (d) (e)and (f) are met.

8. On the information in the salary survey on Payscale.com of the average salaries for IT Project Manager the Tribunal is satisfied that there is no information that indicates the AMSR is inconsistent with Australian labour market conditions relevant to the occupation. For these reasons the requirements of reg 2.72(15)(g) are met.

9. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.

No information to indicate less favourable employment conditions – reg 5.19(5)(p)

1. Regulation 5.19(5)(p) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

2. There is no information or evidence on the files that indicates that the nominee’s employment conditions (other than earnings) will be less favourable than those for the Australian equivalent. Therefore, the Tribunal is satisfied that reg 5.19(5)(p) is met.

Information required by the Minister – reg 5.19(5)(q)

1. Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.

2. The Tribunal has been provided with information regarding regs 5.19(k) to (n) and is satisfied that reg 5.19(5)(q) is met.

3. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

decision

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

Namoi Dougall
Member

Attachment – extracts from the migration regulations 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(a)be made in accordance with approved form 1395 (Internet); and

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

(g)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.

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)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;

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

Temporary Residence Transition stream—additional requirements for approval

(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

(a)at the time the application is made, the identified person holds:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

(b)the occupation:

(i)is listed in ANZSCO; and

(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

(ii)apply to the identified person in accordance with an instrument made under that subregulation;

(d)either:

(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

(ii)it is reasonable to disregard any such information;

(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

(i)for a total period of at least 3 years (not including any periods of unpaid leave); and

(ii)on a full‑time basis, with the employment being undertaken in Australia;

(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

(h)the nominator:

(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

(ii)is actively and lawfully operating a business in Australia;

(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i)paragraph 2.72(15)(a) did not apply; and

(ii)references to the nominee were references to the identified person; and

(iii)references to the person were references to the nominator;

(p)either:

(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii)it is reasonable to disregard any such information;

(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

Minister may vary certain Temporary Residence Transition stream requirements

(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

(8)The Minister may, by legislative instrument, specify:

(a)occupations for the purposes of paragraph (5)(c); and

(b)persons who are exempt from the operation of that paragraph; and

(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(i)the nominator;

(ii)the identified person;

(iii)the occupation;

(iv)the position in which the identified person is to work;

(v)the circumstances in which the occupation is undertaken;

(vi)the circumstances in which the person is to be employed in the position.