Citilink Piling (NSW) Pty Ltd (Migration) - [2021] AATA 2299

Citilink Piling (NSW) Pty Ltd (Migration) [2021] AATA 2299 (22 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Citilink Piling (NSW) Pty Ltd
CASE NUMBER:  1813598
HOME AFFAIRS REFERENCE(S):          BCC2017/4166637
MEMBER:Terrence Baxter
DATE:22 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 22 June 2021 at 2:28pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – financial capacity to employ nominee for 2 years – no financial statements provided to department – statements and oral evidence to tribunal on review – government spending on infrastructure projects during COVID-19 – training requirements – expenditure for one relevant sponsorship year less than benchmark – reasonable to disregard non-compliance – total expenditure exceeded requirement – ongoing training and employment of training manager – genuine need to employ nominee – long-term employee in specialised industry – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth),
Migration Regulations 1994 (Cth), r 5.19(3)(d)(i), (f)
CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
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 Home Affairs on 24 April 2018 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).
The applicant, Citilink Piling (NSW) Pty Ltd, applied for approval on 8 November 2017. The applicant nominated Mr Sattidanand Joye (the nominee) in the position of Building Construction Supervisor. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
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 the delegate found that the applicant had not demonstrated that it had the financial capacity to ensure the nominee’s employment at his nominated salary for at least two years.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 10 May 2018.
Mr Nick Harutoonian, Managing Director of the applicant company, appeared before the Tribunal by audio conference on 17 March 2021 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 2299
Decision Date: 22 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Citilink Piling (NSW) Pty Ltd for approval of a nomination of a position under the Temporary Residence Transition stream. The dispute arose when the Department of Home Affairs refused to approve the nomination, leading to the applicant seeking review by the Tribunal.

The primary legal issue before the Tribunal was whether Citilink Piling (NSW) Pty Ltd met all the requirements for approval of the nomination as set out in regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant had demonstrated sufficient financial capacity to employ the nominee for two years, had met its training obligations, and if there was a genuine need for the nominator to employ the nominee in the specified position.

The Tribunal found that while the applicant initially failed to provide comprehensive financial statements to the Department, subsequent evidence presented to the Tribunal, including payroll expenditure and training invoices, indicated that the total expenditure exceeded the required benchmark. The Tribunal also considered the nominee's evidence regarding his role and the applicant's evidence about its operations, including its focus on government infrastructure projects during the COVID-19 pandemic. The Tribunal concluded that it was reasonable to disregard the non-compliance with the training expenditure benchmark, given the overall expenditure and the genuine need to employ the nominee, who was a long-term employee in a specialised industry.

Consequently, the Tribunal set aside the decision under review and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The nominee gave evidence regarding his employment in the position and the tasks performed by him.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents:a.Current evidence of salary being paid by the applicant to another employee in the same position as the nominee.b.A current employment contract.c.Current evidence regarding the applicant’s ABN.d.Evidence of the applicant’s payroll expenditure during the sponsorship period.e.Evidence of training expenditure.f.Evidence of payment by the applicant of the salary of a full-time trainer.g.A submission from the representative dated 4 February 2021. In the submission dated 4 February 2021, the representative claimed that the applicant had spent sums of $59,526.89 and $11,937.37 in the first and second years of the applicant’s sponsorship period respectively. On 26 February 2021, the Tribunal forwarded to the applicant a request for information, requesting that the applicant provide itemised lists of invoices claimed to make up the totals referred to in the representative’s submission. In response to that request, the applicant produced to the Tribunal a submission from the representative dated 5 March 2021 accompanied by lists of training expenditure totalling $58,244 and $11,937.37 respectively. The Tribunal invited the applicant to attend a further hearing (the further hearing) before the Tribunal to give further evidence and present arguments relating to the issues arising in relation to the decision under review. Mr Harutoonian appeared before the Tribunal by audio conference on 17 March 2021. The representative also attended the further hearing by audio conference. Prior to the further hearing, the applicant produced to the Tribunal the following documents:a.A submission from the representative dated 17 March 2021.b.Further training invoices. After the further hearing, the applicant produced to the Tribunal the following documents:a.A submission from the representative, undated but provided to the Tribunal on 6 April 2021.b.Further training invoices.c.A further copy of the document referred to in paragraph 16(f) above.d.A further submission from the representative, undated but provided to the Tribunal on 24 May 2021.e.Further training invoices.f.A further submission from the representative, undated but provided to the Tribunal on 9 June 2021.The application must be compliant: r.5.19(3)(a) 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) of the Migration Act 1958 (the Act). The application must also identify a relevant person and occupation and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control. Having regard to the information provided by the Department, the Tribunal is satisfied that the application for approval was made on the approved form, was accompanied by the prescribed fee and included a written certification stating whether the applicant had engaged in conduct in relation to the nomination that contravenes s.245AR(1). The requirements of r.5.19(2) and consequently of r.5.19(3)(a)(i) are met.

Decision

Reasons for decision

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 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.Evidence presented before the hearing The applicant provided to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) a number of documents, including:a.An Employment Contract dated 6 November 2017 together with a job description.b.Activity statements.c.Evidence from ABN Lookup regarding the applicant’s ABN.d.Evidence from ASIC regarding the applicant’s registration as a company.e.Promotional material.f.Evidence of payment of training expenditure. The applicant provided to the Tribunal prior to the hearing further documents, including:a.A copy of the delegate’s decision.b.The applicant’s financial statements for the 2016 and 2018 financial years.c.The applicant’s tax returns for the 2016 to 2018 financial years.d.The nominee’s taxation assessments for the 2015 to 2018 financial years.e.The nominee’s PAYG payment summaries for the 2016 to 2018 financial years.f.An organisational chart.g.A submission from the representative, undated but provided to the Tribunal on 19 January 2021.h.A copy of the applicant’s standard business sponsorship approval.i.Internally generated documents of the applicant which were claimed to provide evidence of payment of training expenditure.j.A document titled Training Plan 2020.Evidence presented at the hearing regarding the company’s operations Mr Harutoonian gave evidence regarding the applicant’s operations. He stated that the company had been established in 2008 and that it was involved in structural engineering. He said that the applicant was the largest medium-sized piling company in New South Wales and that it has recently expanded its operations to Queensland and the Australian Capital Territory. He said that the applicant was involved in the construction of foundations for bridges, railways and commercial and residential buildings. Mr Harutoonian said the nominee had been employed by the applicant for nine years and that, with his training, it was difficult to replace such an employee in a specialised industry such as piling. Mr Harutoonian stated that the residential market had been adversely affected by the COVID-19 pandemic. However, he said that the Government had boosted infrastructure spending and that the applicant had concentrated on infrastructure work rather than residential projects. The nominee gave evidence regarding his employment in the position and the tasks performed by him.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents:a.Current evidence of salary being paid by the applicant to another employee in the same position as the nominee.b.A current employment contract.c.Current evidence regarding the applicant’s ABN.d.Evidence of the applicant’s payroll expenditure during the sponsorship period.e.Evidence of training expenditure.f.Evidence of payment by the applicant of the salary of a full-time trainer.g.A submission from the representative dated 4 February 2021.

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.Terrence BaxterMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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(iv) identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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); andNote 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; and(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.