Dream Estate Enterprise Pty Ltd (Migration)

Dream Estate Enterprise Pty Ltd (Migration) [2020] AATA 185 (29 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dream Estate Enterprise Pty Ltd
CASE NUMBER:  1717063
DIBP REFERENCE(S):  BCC2017/322891
MEMBER:C. Packer
DATE:29 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 29 January 2020 at 11:59am

CATCHWORDS
MIGRATION – application for approval of nomination of position – Direct Entry Nomination stream – capacity to employ worker for at least two years – worker has continued to be employed since the delegate’s decision – financial documentation provided to tribunal – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(d)
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 Immigration on 21 July 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).
The applicant applied for approval on 24 January 2017. 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). In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d) of the Regulations because the delegate was not satisfied the business had demonstrated the appointment would provide two years employment.
The applicant was represented in relation to the review by its registered migration agent.
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 Direct Entry nomination stream set out in r.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: r.5.19(4)(a)
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 Tribunal finds the application made on 24 January 2017 and Departmental documents show the application was in the approved form, accompanied by the prescribed fee, and included the required written certification relating to conduct that contravenes s.245AR(1).
The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. Since the delegate’s decision of 21 July 2017, over two years ago, the nominee has continued to be employed. An employment contract signed 28 June 2019 shows the nominee would be paid a salary package of $94,065. Payslips and superannuation details show the nominee has been paid a high wage and superannuation to the present. Bank account statements of the nominee (from 1 October 2018 to 26 September 2019) confirm that fortnightly a net amount of $2,488 has been paid, and this is consistent with the nominee’s payslips and the PAYG Payment summary 2019. As well, the applicant had again been approved as a sponsor for four years from 5 January 2018. The company tax return for June 2019 shows total income of $561,181 and total profit of $55,648. The business assets are significantly higher than total liabilities. In sum, the Tribunal is satisfied the application has identified a need for the nominator to employ a paid employee to work in the position under their direct control.
Accordingly, the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. The Tribunal finds the applicant is actively, lawfully and directly operating a business in Australia (a brick-laying business in Melbourne), based upon:
·The current registration of the business (ASIC extract and statement)
·Company tax return 6/2019
·ATO client account from July 2017 to June 2019
·Receipts and invoices from Henley Homes and Simmonds Homes
·Payslips and superannuation statements for visa applicant
·Bank account statements of the nominee that show fortnightly wage paid
·Accountants’ letter of 23 January 2020 that refers to the total payroll of the business to 22 January 2020
Accordingly, the requirements in r.5.19(4)(b) are met.
Position is not labour-hire: r.5.19(4)(c)
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. However, the information before the Tribunal does not show the business activities include those relating to labour hire to an unrelated business. Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
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.
Since the delegate’s decision of 21 July 2017, over two years ago, the nominee has continued to be employed. An employment contract signed 28 June 2019 shows the nominee would be paid a salary package of $94,065. Payslips and superannuation details show the nominee has been paid a high wage and superannuation to the present. Bank account statements of the nominee (from 1 October 2018 to 26 September 2019) confirm that fortnightly a net amount of $2,488 has been paid, and this is consistent with the nominee’s payslips and the PAYG Payment summary 2019. As well, the applicant had again been approved as a sponsor for four years from 5 January 2018.
The company tax return for June 2019 shows total income of $561,181 and total profit of $55,648. The business assets are significantly higher than total liabilities. In sum, based on the material before it, the Tribunal finds the visa applicant would be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
Accordingly, the requirements in r.5.19(4)(d) are met.
No less favourable terms and condition of employment: r.5.19(4)(e)
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.
The contract of employment signed 28 June 2019 shows the employment is to be full-time with the hours to be worked. The remuneration package and payslips show a high salary plus superannuation. The applicant provided a number of job ads for bricklayers that show salaries between $55,000 and $79,040. Payscale[1] shows that an Average Bricklayer Hourly Pay in Melbourne, Victoria is $29.96 and this equates to an annual gross salary of $59,200. The Tribunal is satisfied, based on material before it, that the terms and conditions applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
[1] >
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
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 rr.1.13A and 1.13B. Based on information before the Tribunal there is no adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
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. The applicant has most recently been approved as a sponsor for four years from 5 January 2018. Based on information before the Tribunal there is no adverse information that suggests the applicant does not 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.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. The nominator does not seek to satisfy r.5.19(4)(h)(ii). For the purposes of r.5.19(4)(h)(i):
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument
·specified training requirements are met
For the purposes of r.5.19(4)(h)(i)(A), legislative instrument IMMI 16/059 specifies the occupation of Bricklayer [ANZSCO 331111]. Based on the material before it, the Tribunal is satisfied both that the tasks of the position correspond to the tasks of that occupation, and that occupation is applicable to the visa applicant (who has been performing the tasks of a bricklayer whilst holding a 457 visa). Accordingly, r.5.19(4)(h)(i)(A) is met.
The nominator’s business has operated for at least 12 months (r.5.19(4)(h)(i)(B)). The nomination application was made on 24 January 2017 and requirements relating to training are specified by the Minister in an instrument IMMI 13/030, that applies to nominations made before 1 July 2017. This Instrument provides in part:
The training benchmarks for an established business are:
A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of
the business, in payments allocated to an industry training fund that operates in the same
industry as 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.
Expenditure that can count towards this benchmark 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
Expenditure that cannot count towards this benchmark includes training that is:
 delivered on-the-job, other than on the job training which meets the requirements
outlined above under the heading ‘expenditure that can count towards this
benchmark’
 confined to only one or a few aspects of the businesses broader operations, unless
the training is in the primary business activity
 only undertaken by persons who are not Australian citizens or permanent residents
 only undertaken by persons who are principals in the business or their family
members
 only relating to a very low skill level having regard to the characteristic and size of the business.
An accountant’s letter of 23 January 2020 states that the business payroll from 22 January 2019 to 22 January 2020 had been $235,617.44. The total payroll included employee wages, super contributions, and subcontractor payments.
A letter from Victoria University dated 24 January 2020 discussed the payment by the applicant of $5,000 to the Victoria University Scholarship Fund (and indicated a receipt would be issued in seven days). A CBA receipt shows $5,000 had been paid on 24 January 2020. The sum of $5,000 is more than 2% of the payroll of the business calculated over the 12 month period immediately before the payment.
In sum, the Tribunal finds the applicant’s payment on 24 January 2020 of $5,000 to the Victoria University Scholarship Fund, constitutes more than 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business. The Tribunal finds this satisfies the Training benchmark A) that requires Recent expenditure. Accordingly, r.5.19(4)(h)(i)(B) is met.
Accordingly the requirements of r.5.19(4)(h) are met.
Conclusion
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
C. Packer
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 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)      both 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;
(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 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).

[2020] AATA 185

29 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Remedies

Procedural Fairness