BOZ DESIGNZ PTY LTD ATF BOZ FAMILY TRUST (Migration)
[2021] AATA 2309
•17 June 2021
BOZ DESIGNZ PTY LTD ATF BOZ FAMILY TRUST (Migration) [2021] AATA 2309 (17 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: BOZ DESIGNZ PTY LTD ATF BOZ FAMILY TRUST
CASE NUMBER: 1825552
HOME AFFAIRS REFERENCE(S): BCC2017/563364
MEMBER:Glenn O'Brien
DATE:17 June 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 17 June 2021 at 1:52pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – need to employ paid employee and financial capacity to employ nominee for two years – current information – employment for four years to date – continuing operation during COVID-19 restrictions and recent increase in turnover – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii), (d)(i)CASE
Cargo First Pty Ltd v MIBP [2016] FCA 30
STATEMENT OF DECISION AND REASONSAPPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 August 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 10 February 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).
In this case, the applicant 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 applicant’s nomination did not satisfy:
a.Regulation 5.19(4)(a)(ii) because the delegate was not satisfied the applicant identified a need to employ a paid employee in the position under the nominator’s direct control; and
b.Regulation 5.19(4)(d)(i) because the delegate was not satisfied the applicant had demonstrated the financial capacity to employ the nominee in the nominated position full‑time for at least two years.
On 17 March 2021, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act) inviting them to provide current information addressing the relevant criteria under reg 5.19 of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, financial records, ASIC information, an employment contract, an organisational chart, and various training documents and invoices. All material received prior to the review hearing has been duly considered by the Tribunal.
Mr Steven Bozinovski represented the applicant and appeared before the Tribunal on 10 June 2021 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
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 reg 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: reg 5.19(4)(a)
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.
While this subregulation relates to compliance of the application with the Regulations and a number of matters that must be set out in the application, a decision-maker must still be satisfied the requirements of the subregulation have been met. This requires an assessment of the applicant’s stated reasons to determine whether or not an applicant has in fact established an identified need as opposed to a mere declaration by the applicant that such a need exists. To interpret otherwise would suggest that, provided reasons for a need are set out in an application by a nominator, irrespective of the veracity of them, the requirement would be satisfied. The Tribunal does not accept that proposition.
The Tribunal has carefully considered the genuine need statement of Mr Bozinovski, the written submissions dated 30 March 2021 and the oral evidence of Mr Bozinovski in relation to the role of the nominee with respect to installation of cabinetry.
On the basis of the evidence before the Tribunal, the Tribunal is satisfied the nomination application was made using the relevant online form. Consistent with reg 5.37(2)(a) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. In completing the application, the required certification in relation to s 245AR(1) of the Act and the required identification of a need to employ a paid employee to work in the nominated position under the nominator’s control was provided in the application form.
Accordingly, the requirement in reg 5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The applicant is the Trustee of the Boz Family Trust which was settled on 1 April 2005. The financial accounts for the year ending 30 June 2020 show sales of $1,349,967.67. Having carefully considered the financial information provided to the Tribunal by the applicant, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia.
Accordingly, the requirement in reg 5.19(4)(b) is met.
Position is not labour-hire: reg 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.
The Tribunal has considered the position description and an employment contract between the applicant and the nominee initially made on 30 January 2017 and more recently on 26 March 2021. The contract provides for the nominee’s direct employment by the applicant in the role of joinery installer.
Accordingly, the requirement in reg 5.19(4)(c) is met.
Term of employment of the visa holder: reg 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 had regard to the evidence of Mr Bozinovski which indicated the applicant will be employed for a minimum of two years after the date of the grant of his Subclass 186 visa. Further, the Tribunal had regard to the financial records provided to the Tribunal in its annual reports.
Mr Bozinovski told the Tribunal that while there was a downturn caused by the onset of COVID‑19, the business has been going very well and has approximately four months of advance orders. The company employs six staff, five of which are full-time. Having carefully considered the financial accounts of the applicant, the net profit for the year ending 30 June 2020 was $30,132.42 down from $192,097.46. Mr Bozinovski told the Tribunal this was initially due to the affects of COVID-19 and the reinvestment in the business in terms of equipment acquisitions. Notably, the more recent BAS statements indicate an increase in turnover. The applicant has employed the nominee for some four years and has met their obligations in relation to employee entitlements during this period.
The Tribunal is satisfied that there is no information before the Tribunal that the applicant would not be in a financial position to employ the nominee for at least two years.
Accordingly, the requirement in reg 5.19(4)(d) is met.
No less favourable terms and conditions of employment: reg 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.
The applicant’s current salary increased in April 2021 to $57,564 plus superannuation which is higher than the Building and Construction General On-Site Award. The Tribunal has also reviewed the Seek advertisements and Fair Work Ombudsman pay guide provided to the Tribunal.
In considering the evidence before the Tribunal, the Tribunal is satisfied the nominee’s terms and conditions of employment are no less favourable that those that are, or would be, offered to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirements of reg 5.19(4)(e) are met.
No adverse information known to Immigration: reg 5.19(4)(f)
Regulation 5.19(4)(f) requires that 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. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.
There is no information before the Tribunal to indicate there is any adverse information known to the Department about the nominator or a person associated with the nominator.
Accordingly, the requirements of reg 5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: reg 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.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in Australia.
Accordingly, the requirements of reg 5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements: reg 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 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 IMMI 15/083), 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 a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal considered the genuineness of the position associated with the nominated position. In Cargo First Pty Ltd v MIBP [2016] FCA 30, the Court upheld (at [34]) the Tribunal’s approach of qualitatively assessing the position comparing this with the occupation nominated in order to determine it was genuine.
The nominated position is not located within regional Australia. The duties of the nominated position of Carpenter (ANZSCO 331212) correspond to those of an occupation specified by the Minister in the relevant instrument and set out in Unit Group 3312 as follows:
UNIT GROUP 3312 CARPENTERS AND JOINERS
CARPENTERS AND JOINERS construct, erect, install, renovate and repair structures and fixtures made of wood, plywood, wallboard and other materials, and cut, shape and fit timber parts to form structures and fittings.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)
At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Registration or licensing may be required.
Tasks Include:
·studying drawings and specifications to determine materials required, dimensions and installation procedures
·ordering and selecting timbers and materials, and preparing layouts
·cutting materials, and assembling and nailing cut and shaped parts
·erecting framework and roof framing, laying sub-flooring and floorboards and verifying trueness of structures
·nailing fascia panels, sheathing roofs, and fitting exterior wall cladding and door and window frames
·assembling prepared wood to form structures and fittings ready to install
·cutting wood joints
·may construct concrete formwork
·may repair existing fittings
·may work with plastic laminates, perspex and metals.
331212 CARPENTER
Constructs, erects, installs, renovates and repairs structures and fixtures of wood, plywood, wallboard and other materials. Registration or licensing may be required.Skill Level: 3
Specialisations:
Fixing Carpenter
Formwork Carpenter
Prop and Scenery Maker.Mr Bozinovski told the Tribunal the nominee is involved in a range of tasks and supervises several other staff in the installation of joinery products on-site.
Based on the work samples provided, the evidence of Mr Bozinovski, and having regard to the tasks of a carpenter as set out in ANZSCO, the Tribunal is satisfied that the tasks of the nominated position with the applicant correspond to the specified occupation of Carpenter (ANZSCO 331212) and that this is specified as a Skill Level 3 position.
Training benchmarks
The applicant has not been approved standard business sponsorship (SBS). The applicant has however employed an apprentice prior to the application and currently employs an apprentice who will enter their third year in July 2021.
The training benchmarks are set out in Schedule A of the relevant instrument as:
The training benchmarks for an established business are:
(A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.
OR
(B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
The instrument provides that allowable expenses include payments to cover the salary of Australian employees:
engaged by the business as apprentices or trainees under a formal training contract.
Having carefully reviewed the applicant’s financial accounts and supporting invoices, the Tribunal is satisfied that 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 reg 4.19(4)(h)(i)(B)(I).
Accordingly, the requirements of reg 5.19(4)(h) are met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Glenn O’Brien
MemberATTACHMENT - 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).
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