Cleaning Solutions Brisbane Pty Ltd (Migration)

[2023] AATA 1358

Cleaning Solutions Brisbane Pty Ltd (Migration) [2023] AATA 1358 (12 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Cleaning Solutions Brisbane Pty Ltd

REPRESENTATIVE:  Ms Kiska Li

CASE NUMBER:  1921174

HOME AFFAIRS REFERENCE(S):          BCC2018/1261169

MEMBER:Ian Berry

DATE:12 May 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 12 May 2023 at 2:40pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – office manager – need to employ nominee – representative of applicant is nominee for position – combined hearing of nomination and visa reviews – size and scope of business activities and tasks of position – advice from regional certifying body – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(a)(ii), (h)

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 Home Affairs (DOHA) on 17 July 2019 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 (Cth) (the Regulations).

2. The applicant applied for approval on 16 March 2018. 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).

3. In this case, the applicant (called the nominator or applicant where relevant) has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(a)(ii) of the Regulations because of insufficient evidence to show the nominator needed to employ an office manager, to work in the position under the nominator’s direct control.

5. The applicant was represented by Mr Nosik, who said he had the necessary authorisation to represent the applicant. Mr Nosik is also the nominee. Mr Nosik appeared before the Tribunal on 29 March 2023, by Teams video hearing, to give evidence and present arguments. This was a combined hearing of the applicant and the applicant’s nominee[1].

   [1] Casemate 1924476.

6. The applicant was represented in relation to the review.  The current representative was appointed on 23 March 2023.  Previously, notice was received by the Tribunal of the applicant requesting the application being determined on the papers. The applicant then decided to proceed by way of a hearing. The Tribunal appointed a new hearing date and the case proceeded to hearing.

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

8. 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

9. 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)

10. 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 an identified person as a paid employee to work in the position under their direct control.

11. The application was made on the approved form; the nominator’s written certification was provided stating that to the nominator has not engaged in conduct in relation to the nomination which contravenes section 245AR(1) and identified a need for the nominator to employ an identified person is the paid employee to work in the position of office manager under the applicant’s direct control.

12. 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)

13. Regulation 5.19(4)(b) requires that the applicant  is actively, lawfully and directly operating a business in Australia.

14. The applicant’s business commenced operating the commercial and industrial cleaning business from incorporation on 2 September 2017.  Mr Nosik provided the history of the business before the acquisition of it by the applicant.  He worked as a supervisor in a cleaning company and decided to start his own cleaning business in or about 2014 or 2015.  From there both Mr and Mrs Nosik worked as cleaners and then advertised for contract cleaners to work under him.  Ultimately, the business was acquired by the applicant after registration.

15. The applicant is actively and lawfully operating the business in Australia and it directly operates the business.

16. Accordingly, the requirement in reg 5.19(4)(b) is met.

    Position is not labour-hire: reg 5.19(4)(c)

17. 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.

18. While the applicant conducts a cleaning business, it does use the services of cleaners from other cleaning agencies.  It does not involve itself in labour hire activities.

19. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

    Term of employment of the visa holder: reg 5.19(4)(d)

20. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

21. Mr Nosik has entered into an employment agreement with the applicant dated 15 March 2018.  Mr Nosik as the identified nominee has been employed by the applicant since inception.  The applicant’s letter of engagement is for 2 years and does not provide a prohibition of extension beyond 2 years and to his operable from the granting of his 187 visa.

22. Accordingly, the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

23. 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.

24. Terms and conditions relating to the applicant’s letter of engagement, the market survey data assess the applicant’s salary at $60,000, though Mr Nosik is now being paid $65,000 from 2022, satisfy the Tribunal he is not being paid or has terms and conditions less favourable than an Australian worker.

25. Accordingly the requirements of reg 5.19(4)(e) are met.

    No adverse information known to Immigration: reg 5.19(4)(f)

26. 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 regs 1.13A and 1.13B.

27. Considering all the evidence from the DOHA and Tribunal files there is no information which would form the basis of adverse information, or about a person ‘associated with’ the nominator.

28. Accordingly the requirements of reg 5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: reg 5.19(4)(g)

29. 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.

30. There is no information or evidence that the Tribunal would perceive as being an unsatisfactory record of compliance with workplace relations laws in the locations in which the applicant operates its business and employs staff.

31. 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)

32. 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 17/058), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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 that a regional certifying body has advised the Minister about certain matters relating to the position.

33. The majority of the tasks of the office manager ANZSCO occupation code 512111 now undertaken by the nominee will be performed in Australia.  The Tribunal has identified the following tasks as being undertaken by the nominee:

    ·Contributing to the planning and review of office services, and setting priorities and office service standards.

    ·Assigning work to and monitoring work performance of staff.

    ·Ensuring office equipment and supplies are maintained.

    ·Ensuring compliance with Occupational Health & Safety regulations.

    ·Ensuring work complies with relevant government legislation, policies and procedures.

    ·Coordinating personnel activities such as hiring, promotions, performance management, payroll, training and supervision. 

34. While the Tribunal noted the concerns of the delegate at the commencement of the nomination application process, the business has now employees which include a receptionist/administration officer, supervisor and estimator all of which are required for the business to operate effectively.

35. There is now a genuine need for the nominator to employ the nominee under reg 5.19(4)(a)(ii) as a paid employee to work in the position as the office manager. Enough evidence has been provided by the applicant to identify the genuineness of the position at the date of hearing.

36. The applicant’s business is located in Carrara postcode 4211 which is a regional area as prescribed by Regulation.

37. The applicant engaged Job2Go as the recruitment agency to undertake advertising to show that the position of office manager cannot be filled by an Australian citizen or permanent resident who is living in the same local area.  The advertisement process, while initially inadequate, was repeated in 2022 with sufficient detail to now satisfied the Tribunal that there is not an Australian citizen or Australian permanent resident (an Australian worker) who is living in the same local area, who can fill the position.

38. The applicant provided the Tribunal with the ‘Regional Sponsored Migration Scheme – Regional Certifying Body advice, Form 1404’.  Dated 17 April 2018 the advice was that there is a need for a paid employee in the nominated position within the business activities of the nominating applicant.  That the nominated position cannot be filled by an Australian worker.  The terms and conditions of employment which relate to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.

39. Accordingly, the requirements of reg 5.19(4)(h) are met.

40. 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

41. 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 an identified person, as  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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).