Brajkovich Demolition & Salvage (WA) Pty Ltd (Migration)

[2020] AATA 2586

Brajkovich Demolition & Salvage (WA) Pty Ltd (Migration) [2020] AATA 2586 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Brajkovich Demolition & Salvage (WA) Pty Ltd

CASE NUMBER:  1724766

DIBP REFERENCE(S):  BCC2017/1267720

MEMBER:Susan Reece Jones

DATE:24 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 24 June 2020 at 7:26pm

CATCHWORDS
MIGRATION – application for approval of nominated position – temporary residence transition stream – financial capacity to pay full-time salary for two years – reduction in business activity – financial results for past four years – not significantly impacted by COVID-19 – salary range for nominated position – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 359
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 Immigration on 21 September 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 4 April 2017. The requirements for the approval of the nomination of a position of Bricklayer (ANZSCO 331111) 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 the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because of a lack of evidence to demonstrated that the applicant had the financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years.

5.    The Tribunal received a review application on 11 October 2017. It was signed on behalf of the applicant by Mr. Adrian Brajkovich, the applicant’s sole director. The review application was accompanied by a copy of the delegate’s decision.

6. On 26 March 2020, the Tribunal wrote to the applicant pursuant to s359(2) of the Migration Act, inviting the applicant to provide further evidence in support of its case.

7.    On 7 April 2020, the applicant provided the following:  

• ASIC Current and Historical Extract dated 6 December 2019
• Financial Statements: 2017; 2018, 2019
• Business Activity Statements (BAS) 2017, 2018, 2019, 2020  
• Letter from Chartered Accountant: Shreeve & Carslake Pty Ltd
• Organisation Chart
• Employment Agreement dated 20 November 2016
• Position description
• Nominee payslips
• ATO PAYG for nominee:  2014- 2019
• Nominee Bank statements showing receipt of salary
• Apprenticeship Agreement with Department of Training and Workforce (WA)
• Apprenticeship Agreements for multiple employees

1. On behalf of the applicant, its sole director, Mr Adrian Brajkovich, appeared before the Tribunal on 29 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Allyson Grant, HR Manager of the applicant, and the nominee, Mr. Nigel Linehan

2. The applicant was represented in relation to the review by its registered migration agent, Ms Rachel Praxl, Australian Visa Assist.

3. Following the hearing, on 5 June 2020, the applicant provided further evidence in support of its application; namely, additional Apprentice Employment Agreements and confirmation of all superannuation payments to the nominee.

4. 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

5. 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)

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

7. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

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

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

9. 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.

10. The Department’s records indicate that the applicant was approved as a standard business sponsor from 22 March 2018.  The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mr Nigel Linehan, and nominated him for a subclass 457 visa. The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.

11. In relation to whether the applicant is actively and lawfully operating a business in Australia, the applicant has provided evidence of its current ASIC and ABN registration and its financial statements for 2016 to 2019 and BAS Statements to 2020, which show that it is actively trading.

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

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

13. 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.

14. The Tribunal is satisfied on the evidence before it that:

    ·     the nomination was made on 4 April 2017 for the position of Bricklayer;

    ·     the relevant 3-year period is therefore 4 April 2014 to 4 April 2017;

    ·     the nominee was initially employed by the applicant on 16 April 2013 while the holder of a 457 visa;

    ·     the nominee applied for a subclass 457 visa on 3 April 2013 on the basis of his nomination by the applicant as Bricklayer and was granted a bridging visa A on that date;

    ·     he was granted a subclass 457 visa on   16 April 2013, which was valid until 16 April 2017; and

    ·     he had therefore worked for the applicant in the nominated position for approximately 4 years prior to the nomination, and for 3 years in the 3-year period immediately prior to the nomination application being lodged.

15. 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 Department refused the nomination because the applicant did not show a financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years. The Department noted its decision that on the nomination application form, the applicant declared that the business had at that time, 135 Australian employees and 15 foreign employees. The Department’s analysis of the material submitted showed that there had been a  reduction in the “activity of the business” and that the applicant had failed to provide “an explanation of the circumstances which have caused their financial position, or how this position is likely to improve in the future.”

    25.      At the hearing, the applicant’s director, Mr Brajkovich, provide extensive evidence as to the activities and financial status of the applicant’s business. In summary, he indicated that the applicant:

    ·is Western Australia’s largest demolition, landfill, recycling and plant hire business

    ·is a long-standing family business

    ·is one part of a larger group of three companies, collectively with an annual turnover of approx $50million (2019)

    ·employs (as at the date of hearing), approximately 201 employees of which 195 are Australians

    ·employs at least 8 Apprentices

    ·invests heavily in training all of its employees continuously

    ·finds its extremely hard to find good, reliable employees given the mining boom in Western Australia.

    26.      Further, Mr Brajkovich advised the Tribunal, a significant part of the applicant’s business for which the nominee is specifically employed, involves making good footpaths, facades and completing repairs to heritage sites.

    27.      Mr Brajkovich also told the Tribunal that the nominee is a “valuable member of the Team”. The nominee according to Mr Brajkovich, has specific skills in matching heritage bricks from recycling locations which is a key skill not found in many bricklayers. Ms Grant, HR Manager of the applicant told the Tribunal that the nominee always arrives on time to work, rarely has time off and is an “easy” and communicative staff member: in short, a “model employee”.  

    28.      The Tribunal’s analysis of the applicant’s financial evidence shows as follows:

$	2016	2017	2018	2019
Total income	20,952,520	31,491,668	44,950,085	32,242,841
Gross profit	(599,151)	271,568	887,641	650,389
Wages	5,226,183	7,090,981	8,691,297	6,888,120
Total assets	15,031,945	20,750,115	25,229,661	29,568,336
Total liabilities	15,035,981	20,448,128	25,089,162	29,361,367

29.       Given the additional material provided to the Tribunal, and its ability to review the ongoing operations of the applicant since the delegate’s decision, the Tribunal is satisfied that it has the financial capacity to continue to employ the nominee on a full-time basis for at least 2 years. Further, Mr Brajkovich advised the Tribunal that the applicant is weathering the COIVD-19 challenges well to the extent that its business has not been significantly impacted.

30.      The Tribunal is satisfied that the terms of the current employment contract between the applicant and the nominee offer the nominee full time employment on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

31. 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)

32.      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.

33.      Noting that the applicant’s employment contract 31 March 2017 provides for a salary of $62,400 (plus superannuation), the nominee PAYG shows as follows:

$	15	16	17	18	19
PAYG	53,843	80,743	61,867	97,782	81,585

1. The Tribunal has consulted a range of sources of information, including:

   ·the Payscale website (accessed 19 June 2020) indicates that a Bricklayer in Australia earns an average salary of $30.70 per hour, with the salary range being from $ 45,225 and $89,599 annually: for experienced Bricklayers positions in Perth listed on Seek.com.au as at 19 June 2020 where a salary range is given up stated up to $35 per hour (or annualised $69,160): >

   From the above, the Tribunal is satisfied that the proposed salary associated with the nominated position is within the salary range of what an equivalent Australian employee would be paid, and is in fact at the higher end of the salary scale for a Bricklayer in Australia.

2. The Tribunal is further satisfied that the contract of employment dated 31 March 2017 for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).

3. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.

   Training commitments and obligations: r.5.19(3)(f)

4. 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.

5. The most recent Standard Business Sponsorship for the applicant commenced on 22 March 2018.

6. Specifically, the training requirements applicable for an established business with approval as a standard business sponsor in that period are set out in written instrument IMMI 13/030 as follows:

   ·A) recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same or related industry of 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.

7. IMMI 18/017 provides that expenditure that can count towards Training Benchmark B includes:

   • paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
   • funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
   • employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
   • employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job
   • evidence of payment of external providers to deliver training for Australian

   employees

   • on-the-job training that is structured with a timeframe and clearly identified

   increase in the skills at each stage, and demonstrating:

   • the learning outcomes of the employee at each stage;
   • how the progress of the employee will be monitored and assessed;
   • how the program will provide additional and enhanced skills;
   • the use of qualified trainers to develop the program and set

   assessments; and

   • the number of people participating and their skill/occupation

8. The applicant provided the Tribunal with detailed evidence of the applicant’s compliance with the Training Benchmark provisions through the engagement of apprentices including Apprenticeship Agreements established via the Western Australia Department of Training & Workforce Development and evidence of payroll for the respective apprenticeship positions. The Tribunal is therefore satisfied that the applicant meets Training Benchmark B in relation to its recent training expenditure.

9. Accordingly, the requirement in r.5.19(3)(f) is met.

   No adverse information known to Immigration: r.5.19(3)(g)

10. 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.

11. The Tribunal has reviewed the Department's records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

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

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

13. 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.

14. There is no evidence before the Tribunal of any breaches of the workplace relations laws of the Commonwealth or by Victoria by the applicant.

15. Accordingly, the Tribunal finds that the requirements of r.5.19(3)(h) are met.

16. 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

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

    Susan Reece Jones
    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.