Bluefit Leisure Pty Ltd (Migration)

Bluefit Leisure Pty Ltd (Migration) [2019] AATA 734 (8 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bluefit Leisure Pty Ltd
CASE NUMBER:  1618664
DIBP REFERENCE(S):  BCC 2016/998786
MEMBER:Ian Berry
DATE:8 April 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 08 April 2019 at 11:53am

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Sports Centre Manager – ANZSCO 149113 – information for nomination provided to tribunal – no clause contractually indicating employment of nominee for two years – confirmation of two-year period of employment provided – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245
Migration Regulations 1994, Schedule 2, r 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 July 2015 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 (Regulations).
The applicant, Bluefit Leisure Pty Ltd changed its name to City Venue Management Pty Ltd (CVM) applied for approval on 15 December 2015. 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).
In this case, CVM has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the CVM’s nomination did not satisfy r.5.19(4)(a)(ii), 5.19(4)(b), 5.19(4)(c), 5.19(4)(h)(i)(A)and 5.19(4)(h)(i)(B)(I) of the Regulations because CVM did not provide any information upon which the delegate was able to make a decision.
CVM (through its representative) appeared before the Tribunal on 26 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Ms Shani Gold (nee Whitaker).
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
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)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, be accompanied by the prescribed fee, and, where applicable, include the required written certification relating to conduct that contravenes s.245AR(1). CVM lodged an application on Form 1359 (Internet) and the prescribed fee is required in regulation 5.37 accompanied this application. CVM required a person to be employed as a sports centre manager at its Chermside Pool Centre.
Based on the evidence before the Tribunal, the application for approval is on the approved form, was accompanied by the prescribed fee, and include a written certification relating to the conduct under s.245AR(1) of the Act.
The application must also identify a need for the nominator to employ a paid employee to work in the position under its direct control. For nominations made before 1 July 2017, as in this case, r.5.19(4)(a)(ii) requires the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
The evidence of the acting Human Resources Coordinator Ms Wolf confirmed that the position is under the direct control of the nominator and that the paid nominee will fill the position identified in the nomination as the Sports Centre Manager.
The identified occupation is a Sports Centre Manager (ANZSCO[1] 149113). Ms Gold has been employed with the nominator since 1 January 2016. The position of Sports Centre Manager carries out the following tasks
a.Planning and organising the programs of the swim school.
b.Selecting, training and supervising staff, including swim teacher and pool deck personnel.
c.Ensuring facilities are properly maintained and conform to safety standards.
d.Undertake coaching, fitness instruction and training of clients; and may plan and organise catering facilities.
e.Liaising with the nominator’s Co-ordinator of all the swim schools.
[1] Australian and New Zealand Standard Classification of Occupations (ANZSCO).
The Tribunal is satisfied that Ms Gold’s duties are consistent with the occupation description in ANZSCO for a Sports Centre Manager.
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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. The evidence before the Tribunal including organisational charts, business activity statements, employees lists, apprenticeship training contracts and financial statements corroborate the nominator carrying on the business of operating swim schools through contracts with Councils within the State of Queensland.
The Tribunal is satisfied the nominator actively and lawfully operating a business in Australia and it operates the business directly.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
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.
There is no evidence before the Tribunal that the nominator is involved in labour hire activities and its chief function is operating swim schools through contracts with local councils.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal brought it to the attention of the nominator’s representative of there being no clause contractually indicating it will employ the identified person in the identified position for at least two years. Ms Wolf indicated that it is the position and confirmed the nominator will confirm in writing with the Tribunal of that fact. On 27 March 2019, the nominator, through its Migration Representative confirmed that the nominator and the identified nominee have signed an agreement that to the nominee will be employed in the position for at least two years, the nominator attached a copy of the ‘confirmation of period of employment”[2]
[2] Tribunal File dated 26 March 2019
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
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.
Ms Wolf confirmed the contract presented to Ms Gold was the standard contract presented to all other employees. The substantial part of the contract of employment would appear to incorporate provisions which would be consistent with the employment of, generally, Australian citizens and permanent residents.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
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.
The Departmental file does not indicate any adverse information about the nominator or the identified nominee. When questioned, Ms Wolf confirmed that she has been employed with the nominator from just after the time when the identified nominee was employed and she has no knowledge and is not aware of any adverse information concerning either the nominator or Ms Gold.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
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.
The nominated representative Ms Wolf indicated that there is not any record, since she has been with the organisation, of it contravening any laws of the Commonwealth, State or Territory with the nominator has operated its business. further, there is no information before the Tribunal to indicate an unsatisfactory record .
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)
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:
a.That the tasks performed in the position are as set out in the legislation instrument: IMMI16/060.
b.Satisfies the Training Benchmark requirements, in this case Training Benchmark B.
The nominator operates a number of swim centres throughout Queensland. The nominator has contractual arrangements with local Council throughout Queensland in managing Council pool centres.
Ms Gold works at the Chermside Swim Centre. She is employed as the Sports Centre manager and has the responsibility for overseeing the managerial responsibilities including managing staff and the swim program. There are about 23 swim centres throughout Queensland of which Chermside is just one.
Ms gold is responsible for the swim school teachers of which there are 35 and pool deck team leaders (who manage parents, swim pupils of which there are 1300. Ms Gold is responsible for overseeing the teachers and team leaders who ensure the coordination of those children and parents who attend the swim school.
The Tribunal is satisfied those tasks are performed in Australia and correspond to those of an occupation specified by the Minister as outlined above and as prescribed in IMMI 16/060 and the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met.
The Tribunal received from the nominator’s Migration Representative letter dated 25 March 2019 which was given to the tribunal in response to the tribunal’s request for information. In summary, the information needed by the Tribunal relevant to the nominator’s obligation to comply with the training benchmark requirements:
a.The nominator employed 49 apprentices, nine of which are located at the Chermside Pool Centre, for the fiscal year ending 30 June 2016;
b.The nominator has a commitment to training Australian employees as is evidenced by, and the last 12 months, having 97 trainees as well as employing a full-time training coordinator to assist with their training;
c.The nominator employs over 900 employees and has a current training expense (Training Benchmark B) of 2.27% of the gross payroll;
d.For the fiscal year ending 30 June 2016, the gross payroll was $8,026,374.72;
e.The trainee/apprentices undertake a Certificate III in Sports and Recreation. The nominator supplied a selection of nine apprenticeship contracts as well as a list of the apprentices relevant to Training Benchmark B, corroborating the number of apprenticeships; and
f.The nominator (for the fiscal year ending 30 June 2016) spent $121,873.53 on its apprentices which represented 1.52% of the gross payroll.
The Tribunal is satisfied the nominator has complied with its obligations under r.5.19(4)(h)(B)(I).
Accordingly the requirements of r.5.19(4)(h) are met
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Ian Berry
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).

[2019] AATA 734

8 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction