Batty Enterprises Pty Ltd (Migration)

[2018] AATA 1923

Batty Enterprises Pty Ltd (Migration) [2018] AATA 1923 (22 March 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Batty Enterprises Pty Ltd

CASE NUMBER:  1711541

DIBP REFERENCE(S):  BCC2016/3511842

MEMBER:Mark Bishop

DATE:22 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 March 2018 at 5:22pm

CATCHWORDS
Migration – Nomination refusal – Direct Entry Nomination stream – 2 years full time employment – Motor Mechanic (General) – Decision under review set aside

LEGISLATION
Migration Act 1958, s 245AR
Migration Regulations 1994, rr 1.13A, 1.13B, 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 11 May 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. The applicant applied for approval on 21 October 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations because in the nomination application form the applicant declared to provide 2 years full time employment to the nominee but did not provide any evidence confirming the position was available to the nominee for at least 2 years.

5. The Tribunal resolved the application on the papers.

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 Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   The application is compliant: r.5.19(4)(a)

8. Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.

9. The application was lodged with the prescribed form, did not include a written certification in relation to s.245AR(1) (receiving a benefit) and was accompanied by the prescribed fee.

10. The application was lodged on 21 October 2016. The nominator identified a need to employ a paid person in the position of Motor Mechanic (General) (ANZSCO 321211). The nominator provided an organisational chart and a statement that outlined the responsibilities of the Motor Mechanic (General) as reporting directly to the owner/manager Mr Chris Batty.

11. Accordingly, the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

12. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

13. The nominator provided the following information:

    ·ASIC extract company statement for Batty Enterprises Pty Ltd;

    ·ASIC current and historical extract for Batty Enterprises Pty Ltd CAN 605 302 305;

    ·Financial statements for Batty Enterprises Pty Ltd for the FY 2016 and FY2017;

14. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

15. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator.

16. The nominator provided a copy of the organisational chart of the company that showed the position of Motor Mechanic reporting directly to the service manager or store manager. The organisational chart showed the position filled by the nominee Mr Jibbu KURIAN. The nominator provided a job description outlining essential duties and responsibilities in the position. The nominator provided an employment contract between the nominator and the nominee that provided for employment for a minimum of two years within the company.

17. The nominator actively and lawfully operates a business in Australia and directly operates the business.

18. Accordingly, the requirement in r.5.19(4)(c) is met.

    Term of employment of the visa holder: r.5.19(4)(d)

19. Regulation 5.19(4)(d) requires the nominee to 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. The nominator provided a letter in support of the application for review by the nominee Mr Jibbu KURIAN. The nominator provided a statement that said he had advertised the position of qualified mechanic and had no response. The nominator advised he had met with the nominee and had numerous correspondence with him and had offered a job to the nominee as a full time Motor Mechanic for a minimum of 2 years with a view to continuing th relationship long term

20. The Tribunal needs to be satisfied the business is able to operate sufficiently and can afford to pay the nominee.

21. The nominator provided the following information:

    ·Financial statements for the FY2017 hat showed a profit from ordinary activities of $37,936 based around a trading income of $1,304,765 an increase of $16,103 on the same figure in the FY2016;

    ·The P & L statement for FY2017 showed a significant increase in total income for the period ended June 2017 of $123,000. The P & L statement for the FY2017 showed the only large increase in expenses as being that of wages and superannuation. All other expenses were relatively static;

    ·A statement and supporting documentation that outlined the history of Batty Enterprises Pty Ltd, Its predecessor company in Daneen Pty Ltd, Its acquisition of significant assets in recent years, the ownership of its own premises, the growth of the company in recent years so that it now employs 7 people and continue to have increased turnover on a yearly basis;

    ·BAS for the period April to June 2017 that showed sales of $350,058, non-capital purchases of $232,462 and total salary and wages and other payments of $28239;

    ·The Balance Sheet for FY2017 showed net assets of $42,367 a threefold increase on the previous year;

    ·The P & L statement showed that the company paid superannuation for the FY2017 of $38,950 as required by legislation.

22. The Tribunal has assessed all the above information including financial statements, written submissions and supporting documentation. The company has been growing and expanding for several years, It has acquired significant assets in its own premises, its turnover is increasing and it is becoming more profitable. The company wishes to expand further and in a service industry this means employment of additional labour to cater to new business demands.

23. The company has complied with relevant legal obligations concerning payment of wages, superannuation and tax remittances. The company has the capacity to pay nominated wages and superannuation to the nominee for the next 2 years.

24. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

25. Regulation 5.19(4)(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.

26. The nominator provided the following information:

    ·Copy of newspaper advertisement for the position of Mechanic, with duties and responsibilities attached placed in Fairfax media on 30 August 2016;

    ·The nominator provided a statement to the Tribunal tht outlined the opening of the enterprise in 1993, its operations under a predecessor company until 2005, the growth and development of the company in more recent years, the hiring of additional staff, the advertising a vacant positions, the unsuitability of applicants, the difficulty in retaining labour and the detail of the employment contract between the nominator and the nominee including the specified wage of $46,100 excluding superannuation of 9.5% to be paid by the employer/nominator.

27. The Tribunal is satisfied the salary amount, terms and conditions paid to the nominee are no less favourable than those that would be provided to an Australian citizen or permanent resident performing the same work in the same work place in Victoria. 

28. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

29. Regulation 5.19(4)(f) 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.

30. There was no evidence before the Tribunal concerning adverse information known to Immigration about the nomination or the person associated with the nominator.

31. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

32. Regulation 5.19(4)(g) requires that the applicant 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.

33. There was no evidence before the Tribunal that suggests the applicant does not have a satisfactory record of compliance with workplace relations laws of the Commonwealth and the State of Victoria.

34. Accordingly the requirements of r.5.19(4)(g) are met.

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

35. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument) the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

36. The Tribunal determines as follows:

    ·The position and business is located in Bendigo, Victoria;

    ·The tasks to be performed in the position will be performed in Australia and correspond to those of an occupation (Motor Mechanic ANZSCO 321211) specified by the Minister in Instrument 18/043, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met;

    ·The nominator’s business has operated for at least 12 months and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the minister in an instrument writing

37. Accordingly the requirements of r.5.19(4)(h) are met. Choose one and delete the other:

38. 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

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

    Mark Bishop
    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.

    …

    Direct Entry nomination

    (4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

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

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’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)       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

    (g)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; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).