Derek William John Faulknall (Migration)

[2018] AATA 5326

Derek William John Faulknall (Migration) [2018] AATA 5326 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Derek William John Faulknall

CASE NUMBER:  1704224

DIBP REFERENCE(S):  BCC2016/2734248

MEMBER:Sheridan Lee

DATE AND TIME OF

ORAL DECISION AND REASONS:          6 December 2018 at 3:02 pm (VIC time)

DATE OF WRITTEN RECORD:                4 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 January 2019 at 10:12am

CATCHWORDS

MIGRATION – nomination of an occupation (employer nomination) – Temporary Residents Transition Nomination stream – position of bricklayer – standard business sponsor – actively and lawfully operating a business in Australia – no less favourable terms and conditions – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 140, 245AR
Migration Regulations 1994, Schedule 2, cl 457.223, 1.20, 2.59, 2.68, 5.19, 5.193

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to approve a nomination r.5.19 of the Migration Regulations 1994 (the Regulations).

2. At the hearing on 6 December 2018, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. On 18 August 2016, Mr Faulknall applied to the Department of Home Affairs to nominate a Subclass 186 visa. The requirements for the approval of the nomination of a position in Australia are found in regulation 5.19 of the Regulations.

4. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residents Transition Nomination Stream, as set out in regulation 5.19(3).  For the nomination to be approved all the requirements must be met.

5. The first requirement is that the application must be compliant.  From the information on the Department's file I am satisfied that the application for approval was made on the prescribed form and the prescribed fee was paid. Written certification stating the nominator has not engaged in conduct that contravenes section 245AR(1) was provided.

6. The application identifies Mr Jayeshkumar Patel as the nominated person. At that time Mr Patel held a Subclass 457 visa granted on the basis of satisfying clause 457.223(4). The occupation identified is bricklayer, which is listed in ANZSCO and has the same four digit code as the occupation carried out by the subclass 457 visa holder Mr Patel. I therefore find that the requirements in regulation 5.193A are met.

7. The next requirement relates to the status of the nominator. The applicant supplied the tribunal with a copy of a sponsorship approval notice issued by the Department effective from 23 July 2015 to 23 July 2020.  Further, the applicant is identified as the sponsor of the nominee in the notification of grant of a subclass 457 visa issued by the department on 26 August 2015. This is the most recent subclass 457 visa granted to the nominee.

8. As such, Mr Faulknall is the standard business sponsor who last identified the holder of the subclass 457 visa in the nomination made under 140GB of the Act.  The nominator was not granted the most recent business sponsorship on the basis of meeting either regulations 1.20DA, 2.59H or 2.68I.

9. I have before me an extract from the Australian Business Register confirming that the applicant has been registered as a sole trader from 1 April 2013.  The applicant has also supplied a profit and loss statement for the financial year ended 30 June 2018, Business Activity Statements submitted to the Australian Taxation Office from July 2016 to June 2018, PAYG payment summaries issued to the nominee for 2015, 2016, 2017 and 2018, an Australian National Bank statement for a business account held by Derek William John Faulknall from 22 July 2016 to 22 October 2018.  On the basis of this evidence I am satisfied that the applicant is actively and lawfully operating a business in Australia.  I find that the requirements in 5.19 at 3(b) are met

10. The next requirement relates to previous employment of the nominee.  The nomination was lodged on 18 August 2016.  The nominee was granted the subclass 457 visa to work in the nominated occupation of bricklayer on 12 June 2014.  In a statement dated 21 August 2016 Mr Faulknall outlined that the nominee has been continuously employed since the grant of his first 457 visa until the date of the nomination application.  The applicant has supplied a contract of employment signed by the applicant and the nominee on 3 March 2014 for a fulltime position as a bricklayer to commence on the grant of a subclass 457 visa.  I also have before me PAYG statements for the 2015 and 2016 financial years.  I therefore find the requirement in regulation 5.19(3)(c) is met

11. The next requirement relates to the future employment of the visa holder.  The applicant's contract of employment does not specify an end date and the applicant gave evidence that the position is ongoing.  He has further submitted a written statement declaring that he will continue to employ the nominee for a minimum of two years from the date of the nomination of approval with the possibility of an extension.  The applicant has been paying wages to the employee for the last four years and the business financials and BAS confirm that the applicant can afford to continue doing so.  Given these findings the requirements in 5.19(3)(d) are met.

12. There is a requirement that the terms and conditions be no less favourable than the terms and conditions that would be paid to an Australian citizen or permanent resident.  And the applicant has outlined that he runs a business building domestic garages.  As such the applicable award is the Building and Construction General Onsite Award 2010, which covers employers throughout Australia in the onsite building, engineering and civil construction industry and their employees.

13. The minimum applicable rate for a bricklayer under that award is $24.39 per hour.  I find that the nominee is paid above this rate and therefore the applicant meets the requirement in regulation 5.19(3)(e).

14. The next requirement relates to training commitments and obligations.  As previously noted, the most recent approval as a standard business sponsor commenced on 23 July 2015.  The nominator has provided evidence to the tribunal of training expenditure for the 2016, 2017 and 2018 financial years.  The expenditure is in excess of one per cent of the payroll, as referred to in the financial statements and recorded in the BAS.  I am satisfied on the evidence that the applicant has fulfilled commitments made relating to meeting the training requirements during the relevant period.

15. In addition to fulfilling the commitment relating to training I am satisfied that the applicant kept the required records showing that they complied with their sponsorship obligations relating to the training requirement.  Accordingly, the requirement in 5.19(3)(f) is met.

16. The departmental file indicates that there is no adverse information known to Immigration about the nominator or a person associated with the nominator.  Accordingly, the requirement in 5.19(3)(g) is met.

17. I have no evidence before me to indicate that the applicant has not complied with the laws of the Commonwealth and of Victoria relating to workplace relations.  He has submitted PAYG statements for his employee and paid above award rates.  I am satisfied that the requirement in 5.19(3)(h) is met.

18. Based on the findings I have outlined I am satisfied that the applicant meets the requirement of regulation 5.19 for approval of the nomination of the position in Australia.

    DECISION

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