CENTRUM PRINTING PTY LTD (Migration)

[2017] AATA 205

CENTRUM PRINTING PTY LTD (Migration) [2017] AATA 205 (3 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  CENTRUM PRINTING PTY LTD

CASE NUMBER:  1505647

DIBP REFERENCE(S):  BCC2014/2562271

MEMBER:D. Dimitriadis

DATE:3 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 03 February 2017 at 11:43am

CATCHWORDS

Migration – Nomination – Temporary Residence Transition stream – Adverse information – Equivalent terms and conditions – Sponsorship bar – Underpayment rectified – Time period passed

LEGISLATION

Migration Act 1958, s 245AR(1)

Migration Regulations 1994, r 5.19, r 5.37, cl 457.223(4)

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 15 April 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 (the Regulations).

2. The applicant applied for approval on 4 October 2014. 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 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)(g) of the Regulations because there was adverse information known to Immigration as the applicant had been the subject of a decision to bar the applicant from making future applications for approval of sponsorship from 10 November 2014 to 10 November 2015.

5. The applicant appeared before the Tribunal on 1 February 2017 to give evidence and present arguments and was represented by Mr Punkaj (Percy) Vij, director of the applicant. The Tribunal also received oral evidence from Mrs Linda Vij, director of the applicant.   

6. The applicant was represented in relation to the review by its registered migration agent.

7. 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

8. 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)

9. 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.

10. The Tribunal is satisfied, based on information in the file of the Department of Immigration and Border Protection (the Department), that the application was made in accordance with the approved form and accompanied by the fee prescribed in r.5.37.

11. The application identified Mr Bharat Shangari (the nominee) for the nominated position of Graphic Pre-Press Trades Worker (ANZSCO 392211). Departmental records indicate that the nominee was granted a Subclass 457 visa on 24 September 2012 having satisfied cl.457.223(4) of Schedule 2. The applicant gave evidence at the hearing that the nominee worked as a Graphic Pre-Press Trades Worker while he held a Subclass 457 visa. The applicant provided to the Tribunal a copy of the nomination which was approved by the Department on 9 August 2012. The nomination approval was for the occupation of Graphic Pre-Press Trades Worker in relation to the applicant. The nominee was the holder of a Subclass 457 visa at the time the nomination application was lodged. The Tribunal is satisfied that the application identifies an occupation, in relation to the position that is listed in ANZSCO and has the same 4 – digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 visa.

12. Given the above findings, the Tribunal finds that 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. The applicant was approved as a standard business sponsor on 28 October 2010. The records indicate that the applicant was the sponsor that last identified Mr Bharat Shangari, who is the relevant Subclass 457 visa holder, in a nomination made under s.140GB of the Act. The Tribunal is accordingly satisfied that the requirement in r. 5.19(3)(b)(i) is met.

15. The applicant has provided to the Tribunal information which demonstrates its current business operations, including business activity statements, financial reports and pay advices. The Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia.  The Tribunal finds that the requirement in r. 5.19(3)(b)(ii) is met.

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

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

17. 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.

18. The Department’s records indicate that the nominee was granted the Subclass 457 visa on 24 September 2012 and the visa ceased on 6 October 2014. 

19. The representative stated in a submission to the Tribunal that the business has provided evidence of the nominee’s employment in the occupation for at least two years prior to the application for approval of the nomination in the form of payslips and PAYG records for the relevant period.

20. The applicant provided pay advices, PAYG payment summaries for the nominee for the years ending 30 June 2013 and 30 June 2014, financial statements for the applicant for the years ending 30 June 2014 and 30 June 2015, tax return for the applicant for 2015 and pay advices for the nominee from 25 September 2014 to 1 October 2014 and 16 October 2014 to 22 October 2014. The applicant stated that the nominee continues to be employed by the business in the nominated position.

21. The Tribunal is satisfied that the nominee held a Subclass 457 visa for a total period of at least two years. The Tribunal is satisfied that the nominee has been employed full-time in Australia in the position in respect of which he held a Subclass 457 visa for at least two years in the period of three years immediately before the nominator made the nomination application on 4 October 2014. The Tribunal is satisfied that the applicant meets r.5.19(3)(c)(i).

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 applicant provided to the Tribunal a copy of the employment agreement dated 25 August 2016 between the applicant and the nominee. The contract period is two years from the grant of the employer sponsored visa and after the contract expiry, the employer grants employment on a permanent basis.

25. The Tribunal has had regard to the nominee’s employment history and to the terms and conditions of his employment as set out in the employment agreements dated 24 September  2014 and 25 August 2016. The PAYG payment summaries provided for the nominee for the years ending 30 June 2013 and 20 June 2014 indicate that the nominee has been employed by the applicant on a full time basis since he was granted a Subclass 457 visa. After the hearing the applicant provided to the Tribunal the nominee’s PAYG payment summary for the year ending 30 June 2016 and a pay advice for the period 19 January 2017 to 25 January 2017. This pay advice indicates that the nominee’s annual salary is $61,200. The two employment agreements indicate that the position is full-time and ongoing. The Tribunal has also had regard to the applicant’s declaration in the nomination form that it will provide full-time employment to the nominee for at least two years. The Tribunal is satisfied on the evidence that the applicant will employ the nominee for at least two years full-time and on terms that do not expressly preclude the possibility of an extension.

26. 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)

27. 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.

28. The applicant gave evidence at the hearing that there are two other employees that are permanent residents or Australian citizens working in the occupation of Graphic Pre-Press Trades Workers. The applicant stated that the terms and conditions of employment of the nominee will be no less favourable that those that are provided (or would be provided) to their other employees working in the occupation of Graphic Pre-Press Trades Worker. The applicant gave evidence that the nominee earns a higher wage than the other Graphic Pre-Press Trades Workers on a performance basis. The applicant earns over $60,000 per annum. A recent payslip provided to the Tribunal indicates that the nominee’s annual income is $61,200. 

29. The Tribunal is satisfied, based on the applicant’s evidence at the hearing and the documentary evidence, including the employment agreements, the pay slips for the nominee and other workers and the PAYG payment summaries, 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.

30. Accordingly, the requirement in r.5.19(3)(e) is met.

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

31. 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.

32. The applicant was last approved as a standard business sponsor on 27 June 2016 for five years. In order to be approved the applicant must have met the benchmarks for training in r.2.59(d). Since the approval on 27 June 2016, less than a year has passed. The applicant has not yet lodged its financial reports for the year ending 30 June 2016 with the Australian Taxation Office (ATO), as the applicant has until March 2017 to do so, according to the applicant’s evidence. The Tribunal has received four ‘view activity statements’ lodged with the ATO covering the period 1 July 2015 to 30 June 2016.  Wages for the financial year ending 30 June 2016 in the activity statements are $661,776. 

33. Based on the wages for the year ending 30 June 2016 and the evidence that the applicant was approved as a standard business sponsor on 27 June 2016 for five years, the Tribunal is satisfied that the applicant met the training commitments at the time the sponsorship was approved.

34. The applicant has provided documentary evidence of training including traineeships approved by the State Training Services (N.S.W.) for employees in 2014 and 2015 and a traineeship for an employee approved on 7 September 2015 by the Department of Industry. The representative provided a submission that the total payroll under the current sponsorship from June 2016 to January 2017 is $1,271,352.31. The representative stated that the total salary paid to the trainees in the current financial year, while employed under the traineeships is over $70,000 and the training obligation has been met on the basis of these figures. The representative provided copies of payslips for the trainees (J. Rerecic, P. Patelo and W. Hodson). The representative submitted at the hearing that the salaries paid to the trainees goes towards the requirement of 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.

35. The applicant gave evidence at the hearing that they purchased a printing press from Germany and that a part of the purchase price includes training by the manufacturer. The applicant stated that they focus on training. The applicant has paid 80% of the costs of the printing press and the balance of 20% is partly for training which is included in the cost. The Tribunal has had regard to the letter dated 1 February 2017 from KBA Australasia Pty Ltd which stated that the installation of the printing press has been ongoing since November 2016 and KBA have arranged for a German demonstrator to conduct hands on training on this new technology on 6 February 2017. The training will take from four to six weeks and will involve three to four staff members. The value of the training is estimated at €49,680.

36. As stated previously, the applicant was last approved as a standard business sponsor on 27 June 2016 for five years and in order to have been approved as a standard business sponsor, the applicant must have met the benchmarks for training in r.2.59(d). Since the approval on 27 June 2016, less than a year has passed. However, the applicant continues to employ trainees and has provided evidence of this employment, the traineeships and their pay. The Tribunal has considered all the evidence and is satisfied that the applicant has 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.  

37. 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. The delegate refused to approve the nomination application on the basis that the applicant had been the subject of a sponsorship bar decision made on 10 November 2014 for a period of 12 months.

40. The Tribunal has information before it that the decision to impose the sponsorship bar was made on the basis that the applicant had failed to satisfy r.2.79 (equivalent terms and conditions) over a two year period in relation to one Subclass 457 visa holder. The applicant had underpaid a Subclass 457 visa holder over a two year period. The applicant acknowledged the underpayment and provided verifiable information that the visa holder was paid the amount owing to her. The Tribunal is satisfied that there is adverse information known to the Tribunal about the nominator.

41. The Tribunal has had regard to the evidence and is satisfied that the applicant has rectified the underpayment. The applicant gave evidence at the hearing that they have employed another employee as an accounts officer to make sure that this type of error does not happen again.

42. As well, the Department has approved the applicant as a standard business sponsor in June 2016 and would have found, in making that decision, that it was reasonable to disregard that adverse information.

43. The Tribunal has considered whether it is reasonable to disregard this adverse information. The Tribunal acknowledges that the period of the sponsorship bar has passed. The bar ended on 10 November 2015. Since that time the Department has approved the applicant as a standard business sponsor on 27 June 2016 for five years. There is no information before the Tribunal that the applicant has not complied with other sponsorship obligations. In light of all this information, the Tribunal finds that it is reasonable to disregard the adverse information.

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

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

45. 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.

46. The Tribunal has information about the underpayment by the applicant to a Subclass 457 visa holder and this led to the sponsorship bar imposed on the applicant. The Tribunal is satisfied on the evidence that the underpayment was rectified by the applicant and the Subclass 457 visa holder was paid the outstanding amount. The applicant gave evidence that they have employed another person, an accounts officer, in the accounts section to make sure this problem of underpayments does not occur again. The applicant was established in 2001 and currently has about 30 full-time employees and one or two casual employees. All are citizens or permanent residents, according to the evidence, except for the nominee who is on a bridging visa. The applicant has previously been a standard business sponsor and has sponsored foreign workers to work in its business. The applicant is currently an approved standard business sponsor.

47. There is no other evidence before the Tribunal, other than the evidence about the underpayment to one Subclass 457 visa holder, to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

48. Given the duration of the operation of the business and the number of employees the applicant has employed since 2001, the Tribunal is satisfied, based on all the evidence, 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.

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

50. 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

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

    D. Dimitriadis
    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

    (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.