EasiVisa Pty Ltd (Migration)

EasiVisa Pty Ltd (Migration) [2021] AATA 3720 (9 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  EasiVisa Pty Ltd
CASE NUMBER:  1817811
HOME AFFAIRS REFERENCE(S):          BCC2016/4335771
MEMBER:Mark O'Loughlin
DATE:9 July 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 09 July 2021 at 11:03am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Marketing Specialist – term of employment – employment contract – term of employment not specified – right to terminate employment contract – financial capacity – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 31 May 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 applied for approval on 22 December 2016. 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 Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because the documents provided did not satisfy the delegate that the applicant has the financial capacity to offer the nominee 2 years’ employment and does not therefore satisfy subregulation 5.19 (4) (d) (i).
The applicant was represented by Mr. Mark Stevens, a director, who appeared before the Tribunal on 13 January 2021 to give evidence and present arguments. The hearing was combined with the hearing of an application by the nominee, Ms Zamorski-Gulko, for review of the decision to refuse her visa application. Ms Zamorski-Gulko gave evidence as did Ms Lynch and Mr. Turco, who also work for the applicant.
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 application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal had regard to the visa application which was part of the Departmental file that was provided to the Tribunal.
Having regard to that document the Tribunal finds that the application was made on the approved form, it includes the required written certification regarding conduct that contravenes s. 245AR (1), and that it is supported by documentation that identifies a need for the nominator to employ a paid employee to work in the position.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal has regard to financial documentation including bank documents, financial statements and financial reports, and correspondence from the applicant’s accountant.
On the basis of these documents and evidence given by the witnesses in this matter the Tribunal finds that the applicant is actively and directly operating a business in Australia.
There is no evidence before the Tribunal to suggest that the business is not being operated lawfully.
Accordingly, the requirement in r.5.19(4)(b) is 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.
There is no evidence that the nominate or is involved in labour hire activities
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.
After the hearing the applicant provided the Tribunal with an updated and executed employment agreement and further submissions in relation to the term of employment of the visa holder.
The applicant submitted that, although the employment contract did not specify a minimum term of 2 years, it is the intention of the applicant to employ the nominee for at least that period.
This submission was supported by the testimony provided to the Tribunal.
In the circumstances, and despite the applicant’s failure to specify a term of at least 2 years, the Tribunal is satisfied that there is no intention on the applicant’s part to terminate the nominee’s employment within 2 years.
The Tribunal observes that the employment agreement purports to reserve to the applicant the right to terminate the nominee’s employment on the provision of 1 to 2 weeks’ notice at any time during the first 2 years of the operation of the agreement (which commences when the nominees visa is granted).
The applicant submitted that this arrangement is commonly included in employment agreements and is part of the standard Fair Work terms and conditions.
The Tribunal observes that the standard Fair Work terms and conditions represent a minimum standard and that as a general matter if an employer reserves to itself the right to terminate a nominee’s employment in the first 2 years on the mere payment of notice, that is not consistent with an intention to employ a nominee for at least 2 years.
The Tribunal is concerned that the employment contract contemplates termination of employment within the first 2 years which suggests the possibility that the applicant does not meet the subregulation.
The Tribunal has regard to the testimony of the director and the submissions made by him after the hearing and finds that despite this clear deficit in the employment agreement, the applicant intends to employ the nominee for at least 2 years after the grant of her visa.
The Tribunal is satisfied that there is no express exclusion of an extension of the term of the employment agreement beyond 2 years.
The Tribunal has further had regard to significant financial information that has been provided to it and is satisfied that the applicant has the financial capacity to employ the nominee for a period of at least 2 years.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and conditions 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 Tribunal has regard to the employment agreement of 29 June 2021.
The Tribunal further has regard to information provided from online sources in relation to wages applicable to the work performed by the nominee.
The Tribunal is satisfied that the terms and conditions of the nominee’s employment will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
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.
There is no evidence of any such information before the Tribunal.
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.
There is no evidence that this is not the case.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position, the genuine need for the position and training requirements r.5.19(4)(h)
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 that, if the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which 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.
The Tribunal is satisfied that the position and business was, at the time of application, located in “regional Australia”.
The Tribunal has had regard to the evidence submitted to it into the testimony of the witnesses and is satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.
The Tribunal is satisfied that the applicant was not able to fill the position by employing an Australian citizen or permanent resident living in the same local area.
The Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks to be performed in the position of “Marketing Specialist ”as defined in the ANZSCO dictionary 225113.
The Tribunal further has regard to the relevant certificate from a Regional Certifying Body and finds that that requirement of the subregulation is met.
Accordingly the requirements of r.5.19(4)(h) are met.
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.
Mark O'Loughlin
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).

[2021] AATA 3720

9 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies