Balluff Pty Ltd (Migration)

[2019] AATA 708

Balluff Pty Ltd (Migration) [2019] AATA 708 (2 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Balluff Pty Ltd

CASE NUMBER:  1703450

DIBP REFERENCE(S):  BCC2016/2734686

MEMBER:Sheridan Lee

DATE:2 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 January 2019 at 3:26pm

CATCHWORDS

MIGRATION – nomination of an occupation (employer nomination) – occupation of Sales Representative (Industrial Products) – employed full-time for at least 2 years – approved form accompanied by the prescribed fee – actively and lawfully operating a business in Australia – previous employment of the nominee – employment terms and conditions – training commitments and obligations – decision under review set aside

LEGISLATION

Migration Act 1958, ss 140, 245AR
Migration Regulations 1994, Schedule 2, cl 457.223; rr 1.13, 1.20, 2.59, 2.68, 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 22 February 2017 to reject an application 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 to nominate the occupation of Sales Representative (Industrial Products) on 18 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 delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because no evidence was submitted to demonstrate that the nominee would be employed on a full-time basis in the position for at least 2 years.

5. Mr Jason Bouyer, Director of Baluff Pty Ltd, appeared before the Tribunal on 16 October 2018 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from Mr Graham Margetts, who has recently retired as the Managing Director of the company. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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)

8. 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 must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.

9. 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.

10. The application for approval identifies Mr Robert Prince, the nominee who, according to Departmental records, held a Subclass 457 visa from 24 April 2015 that was granted based on satisfying subclause 457.223(4) of Schedule 2 (his second Subclass 457 visa).

11. The occupation identified in the application is that of Sales Representative (Industrial Products) (ANZSCO 225411). 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 her as the holder of a Subclass 457 visa. The Tribunal is accordingly satisfied that this occupation carries the same 4-digit code (2254) as the occupation carried out by the nominee whilst she held the Subclass 457 visa.

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

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

13. 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.

14. Departmental records confirm that the nominator was the standard business sponsor who last identified Mr Prince 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).

15. At the hearing, Mr Bouyer gave evidence that Balluff is a global supplier of industrial automation. Balluff Pty Ltd is a wholly owned subsidiary of German parent company, Balluff-Leuze GMbh.

16. The applicant supplied the Tribunal with financial statements prepared by its chartered accountant, Accru Melbourne (Audit) Pty Ltd for the 2016 – 2017 financial year, a statement of coverage for icare workers insurance for the employer’s workers compensation liability in New South Wales (where the nominee is based), valid until 30 June 2016, business' registration documents and other information about the business' activities.

17. The Tribunal is satisfied on the basis of the material before it that the nominator is actively and lawfully operating a business in Australia. The requirement in r.5.19(3)(b) is met.

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

18. 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.

19. In this case, r.5.19(3)(c)(i) is the relevant provision. The nomination application was made on 18 August 2016.

20. The nominee was granted his first Subclass 457 visa in the nominated occupation of Sales Representative (Industrial Products) on 14 April 2012, sponsored by Balluff-Leuze Pty Ltd. Following a restructure, the company operating the business transitioned from Balluff-Leuze to the applicant, Balluff Pty Ltd. Balluff Pty Ltd was approved as a standard business sponsor on 28 July 2014 and when Mr Prince’s Subclass 457 expired, he was granted a new visa for the same position under the sponsorship of that company on 24 April 2015.

21. The Tribunal has had regard to the notifications of approval issued to the nominee for his visas by the Department, a written statement from the applicant confirming that the nominee has been employed full-time in the relevant position since 14 April 2012, employment contracts and the verbal evidence provided by Mr Bouyer at the hearing, where he discussed in detail the nature of the nominee’s work and his importance to the business.

22. 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)

23. 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.

24. The primary application was refused by the delegate on this requirement because it was found that there was insufficient evidence to indicate that the business will have the financial capacity to meet all employment obligations in respect of employing the nominee on a full-time basis for a period of at least two years.

25. The Tribunal heard evidence from the applicant that the company had engaged a registered migration agent to assist with the nomination, in addition to a separate Subclass 457 visa application for another employee. However, after some time, the applicant could not get hold of the agent and upon contacting the Department were notified that no application had been lodged. The applicant was then required to put together an application at short notice, without specialist advice and subsequently missed the inclusion of key documentation. The applicant advised at hearing that a complaint was made to the Migration Agent Registration Authority and the business was able to recover most of the fees paid to the migration agent. The Tribunal accepts this to be true.

26. The Tribunal has had regard to the most recent contract of employment between Baluff-Leuze Pty Ltd and the nominee, signed by Mr Prince on 13 March 2012. The contract stipulates that the nominee is employed as a ‘Sales Engineer’ on a full time basis. The contract does not expressly exclude the possibility of extending the period of employment. The applicant gave evidence that the position is ongoing and provided a description of the tasks that was consistent with the nominated occupation. Further, a written statement was provided by Mr Bouyer, dated 16 October 2018, declaring that the nominee continues to be to be offered the position of Sales Representative (Industrial Products) for at least another two years.

27. Audited financial statements for the financial year ending 30 June 2017 show that the company has a turnover of more than $5 million and reported a profit of $53,279. The company spent $1.8 million on employee benefits, including those paid to the nominee. The Tribunal accepts that the business has paid the nominee’s salary on a full-time basis for the previous 6 years and has the financial capacity to continue doing so.

28. The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending the period of employment.

29. 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)

30. 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.

31. The nominee receives an annual salary package of $104,250. At the hearing, Mr Bouyer gave evidence that there are 19 people working in field sales, with each of the employment contracts having identical conditions and varied salaries. He outlined that the nominee is paid a comparably higher rate to cover the living expenses in New South Wales and to reflect his responsibilities training other staff. The applicant has supplied a contract of employment for an Australia employee working in the same position. The Australian employee has an annual salary package of $93,075. Payslips we provided for the Australian employee and the nominee to evidence the payment of wages stipulated in the contracts.

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 nominator has provided evidence to the Tribunal of training expenditure for the 2015, 2016, 2017 and 2018 financial years. The expenditure is in excess of 1% of their payroll as reflected in the financial statements, and recorded in the BAS.

36. The Tribunal is satisfied on the evidence before it that the applicant has fulfilled commitments made relating to meeting the training requirements during the relevant period.

37. 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)

38. 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. 

39. 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.

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

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

41. 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.

42. 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, payment of superannuation and copies of employment contracts that provide the minimum terms and conditions of employment set out in workplace relations legislation.

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

44. 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

45. 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.