EAST BURNING PTY. LTD (Migration)

[2021] AATA 2138

EAST BURNING PTY. LTD (Migration) [2021] AATA 2138 (24 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  EAST BURNING PTY LTD

CASE NUMBER:  1809759

HOME AFFAIRS REFERENCE(S):          BCC2017/2086987

MEMBER:Stavros Georgiadis

DATE:24 May 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 24 May 2021 at 6:29pm

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residents Transition Nomination stream – position of Marketing Specialist – employed in the position for at least 2 years previously – terms and conditions of employment – meeting training obligations – decision under review set aside       

LEGISLATION

Long Service Leave Act (ACT), s 3
Migration Act 1958, ss 140GB, 245
Migration Regulations 1994, Schedule 2 cl 457.223; rr 1.13, 1.20, 5.19, 5.37

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 on 28 March 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).

2. The applicant applied for approval on 13 June 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 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(c) because the delegate considered the applicant had not demonstrated for the purposes of r.5.19(3)(c)(i), that the nominee has worked in the nominated position of Marketing Specialist as a Subclass 457 holder for at least 2 years: r.5.19(3)(c)(i)(A)(II). Further, the delegate found that, for the purposes of r.5.19(3)(c)(ii), the nominee was not nominated in an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B), and therefore the applicant did not meet r.5.19(3)(c)(ii)(A). The delegate concluded that since the applicant’s nomination does not meet r.5.19(3)(c)(ii)(A), if follows that the applicant does not meet 5.19(3)(c)(ii).

5. The applicant’s General Manager, Mr Daniel Raihani, appeared before the Tribunal on 30 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yu Lui, the visa applicant in the related AAT casefile 1814021 refusing him a Subclass 187 visa. The related matters were heard together in a combined hearing.

6. The applicant was represented in relation to the review by its registered migration agent.

7. 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

8. 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.

   The application must be compliant: r.5.19(3)(a)

9. 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). The application must also identify a relevant person and occupation.

10. The applicant’s written submissions dated 22 June 2017 set out as follows (in part) in respect of the need for the role and the activities of the business:

    … “The sponsoring company is an export and import Company and it operates a building
    supplies and materials distribution business, taking contractual commitments from small &
    large construction companies, private buyers, and the like to provide construction and
    building supplies to its customers. The business imports most of its supplies and also buys
    some in the local or interstate markets. The sponsoring business is planning to export
    Australian goods to Asia as well and it is currently working out the market research and
    analysis and details of its planned operation.

    The position of Marketing Officer has been occupied by the Nominee and is required for the
    business so that the business is able to effectively identify market opportunities and tap into the available opportunities to make itself known and marketable. …”

11. The applicant’s submission is that the position is necessary for the business for the development, coordination and implementation of plans relating to pricing and for promoting the company's goods and services, efficiently, effectively, and professionally. The submission is that the position requires management skills, administrative skills and the ability to establish an appropriate administrative system. The applicant states these skills will be used to interpret and predict current and future market trends such as development forecasts. The submission is that the above duties are consistent with the described duties of the nominated position as set out in ANZSCO (225113).

12. The nominee completed a Master of Business Administration degree, in addition to having attained a Graduate Diploma in Business Administration, and a Bachelor of Commerce in Australia. The Tribunal accepts that these qualifications are related to, and consistent with, the requirements and skill level 1 of the nominated position.

13. On the basis of the information in the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by any fee prescribed in r.5.37. The relevant s.245AR(1) certification was also provided in the application form.

14. The application for approval identifies Mr Yu Lui as the nominee. According to the department’s Movement Details, the nominee was granted a Subclass 457 visa on 5 September 2013 on the basis of satisfying cl.457.223(4) at the time the application was made and was valid for 4 years to 5 September 2017.  He entered Australia on 14 November 2013 as a holder of that visa.  The Tribunal is satisfied that the nominee held a Subclass 457 visa when the applicant applied for the approval of the nomination on 13 June 2017.

15. The application for approval identifies the occupation of Marketing Specialist (ANZSCO 225113). The Tribunal is satisfied, based on the employment documents for the nominee, that the occupation identified in the application for approval is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is satisfied that this occupation carries the same 4-digit code (2251) as the occupation carried out by the nominee while he held the Subclass 457 visa.

16. Given the above findings, the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

17. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

18. The department’s records show that the applicant was initially approved as a standard business sponsor or temporary work sponsor from 21 June 2014 to 21 June 2015.  Further correspondence from the department dated 8 July 2015, records the applicant was accepted as a standard business sponsor for an additional 4 years to 8 July 2020. The nomination application identifies the nominee as the Subclass 457 visa applicant was approved for that visa from 5 September 2013 to 5 September 2017.

19. The applicant has also provided ASIC records of business registration and financial records to show the active business operations at the material times.

20. Accordingly, the Tribunal finds the nominator:

    ·was the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act; and

    ·is actively and lawfully operating a business in Australia; and

    ·was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

21. Given the above, the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

22. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

    ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

23. ANZSCO 225113 describes the duties of a Marketing Specialist as one who: “identifies market opportunities and advises on the development, coordination and implementation of plans for pricing and promoting an organisation's goods and services.”  The tasks of the occupation are listed as including the following:

    Tasks Include:

    §planning, developing and organising advertising policies and campaigns to support sales objectives

    §advising executives and clients on advertising strategies and campaigns to reach target markets, creating consumer awareness and effectively promoting the attributes of goods and services

    §coordinating production of advertising campaigns involving specialised activities, such as artwork, copywriting, media scripting, television and film production and media placement, within time and budget constraints

    §analysing data regarding consumer patterns and preferences

    §interpreting and predicting current and future consumer trends

    §researching potential demand and market characteristics for new goods and services and collecting and analysing data and other statistical information

    §supporting business growth and development through the preparation and execution of marketing objectives, policies and programs

    §commissioning and undertaking market research to identify market opportunities for new and existing goods and services

    §advising on all elements of marketing such as product mix, pricing, advertising and sales promotion, selling, and distribution channels.

24. At the hearing, the Tribunal considered the nominee’s duties for the role of Marketing Specialist.  The Tribunal notes some overlap with other roles or occupations in the areas of design and advice, but accepts that the duties described are consistent with those of a Marketing Specialist such as in the construction industry here.  The Duty Statement provided (Folio 91) ) is also consistent with the tasks listed in ANZSCO 225113 for that occupation. The Tribunal accepts overall, that the duties to be undertaken in the role with the applicant are consistent with those for the nominated occupation of Marketing Specialist.

25. The applicant provided written submissions following the hearing in relation to the issue raised in the delegate’s decision refusing the nomination of the occupation regarding employment history. As aforementioned, the department’s Movement Details confirm the nominee was granted a Subclass 457 visa on 5 September 2013 valid for 4 years to 5 September 2017 and that the visa applicant entered Australia on 14 November 2013 as a holder of that visa. The evidence relating to the nominee’s employment history (including contract and payslips) shows that the applicant commenced as a full time Marketing Specialist with the applicant in 2014 under the Subclass 457 visa.

26. The Tribunal accepts from the evidence before it discussed that EAST BURNING PTY LTD is the business entity which has applied for approval in respect of the Marketing Specialist position to which the application relates. The nomination application was lodged in March 2017 with details of the nominee, his visa history and the nominee’s occupation while holding his Subclass 457 visa in the 3 years before the application. The Tribunal is satisfied the evidence shows the nominee’s full time employment commencing 3 July 2014 is of more than 2 years in the nominated occupation required under the Transitional Stream for the visa to satisfy the first limb: r.5.19(3)(c)(i). The Tribunal finds the nominee has been employed full time in Australia in the position for which he has held a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application: r.5.19(3)(c)(i)(A) and (B).

27. Given the above findings, the requirement in r.5.19(3)(c) is met.

    Future employment of the visa holder: r.5.19(3)(d)

28. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

29. The applicant submits in written submissions dated 13 December 2020 that the proposed employment agreement entered into at the time the nomination and visa applications were lodged, included 2 years full time employment without any exclusionary or conditional terms and conditions, therefore satisfying Regulation 5.19(3)(d).

30. The Tribunal has had regard to the employment contract of 20 May 2017 executed between the parties that shows upon grant of the visa, the nominee will be employed for at least 2 years on a gross salary of $67,000 per year plus superannuation at the prevailing rate, working 38 hours per week. The contract does not expressly exclude the possibility of extending the period of employment beyond the 2 years.

31. Accordingly, the Tribunal is satisfied that:

    ·The nominee is as described in r.5.19(3)(c)(i) and therefore, the requirement applies in this case;

    ·the nominee will be employed on a full-time basis for at least 2 years; and

    ·the terms and conditions of the person’s employment do not expressly exclude the possibility of extending the period of employment.

32. Given the above findings, the requirement in r.5.19(3)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

33. Regulation 5.19(3)(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.

34. The written submissions of 13 December 2020 set out that the nominator based its offered salary in June 2014 from considering Job Outlook which indicated salary level of this occupation applying to Australian citizens. The applicant submits that the same market salary available to Australian citizens was offered to the nominee in an employment contract for 4 years, at the time he was employed in July 2014.

35. When the nomination application was lodged in 2017, the applicant offered a higher salary of $67,000 in the proposed employment agreement to become effective upon grant of the Subclass 187 visa. The submission is that this salary too, was based on market salary researched on Job Outlook, also uploaded with the written submissions.

36. Regarding Long Service Leave, the applicant noted that in the context of benefits and terms and conditions of employment, Section 3 of Long Service Leave Act of the ACT requires:

    ·3 (1) An employee who has completed 7 years’ service with a single employer is entitled to long service leave for the period of the service.

    ·(2) An employee is entitled to long service leave for each year of service completed by the employee after the end of the 7th year of service.

    ·(3) An employee’s entitlement to long service leave for a period of service arises at the end of the period.

37. The submission is that as the nominee has been employed less than 7 years by the applicant, the entitlement has not arisen as yet. The applicant’s recent payslips reflect the accrued annual and long service leave, copies of which have also been provided to the Tribunal.

38. The aforementioned employment contract of 20 May 2017 executed between the parties records the terms and condition applicable to the position. There are no other overseas workers in this role.  The Tribunal accepts from this that the nominee will be paid at a salary rate of $67,000 per year plus superannuation at 9.5% of gross salary together with other leave conditions as set out in the contract document. The work is based in Sydney, NSW with some business operations also in Canberra, ACT.

39. The Tribunal is satisfied from this evidence and that provided at the hearing that the nominee’s terms and conditions 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.

40. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

41. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the  applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

42. The applicant submits in correspondence dated 28 September 2020 that the business maintained a 3 year training program guide as a matter of course, including potential courses for training, conducted by internal or external trainers, and estimated the costs of such a plan. The submission is that the training plan coincided with the approved sponsorship period from 2015 to 2018. The submission is that the areas of training needs of the staff and the business operation were determined in the course of the operation hence, the training plan was essentially a general guide for the business to allocate some funds each year.

43. The Tribunal was provided with a copy of training expenditure for the consecutive financial years of 2014-15, 2015-16, 2016-17, and 2017-18.  The submission is that the training benchmarks were replaced in August 2018 by the SAF Training Levy that any approved sponsor is required to pay at the time of lodging each new nomination application, as happened here.

44. The applicant’s submission is that business employs only one non-Australian person, being the nominee and therefore, all training courses provided included Australian employees of the business. The accepted evidence is that the business has not been subject of monitoring in the course of its status as an approved standard sponsor, nor was it subject to any investigations relating to this requirement.

45. The Tribunal notes that the business incurred losses in the course of its operations in the two consecutive years (financial years 2015 and 2016), and the submission is that the business utilised that loss to offset its taxable income in the subsequent financial years to 2020. The Tribunal notes the offset is reflected in the applicant’s Tax Returns for the financial years 2018-19 and also 2019-20.

46. Accordingly, the Tribunal is satisfied that for the period of the applicant’s most recent sponsorship approval for the 4 years to 8 July 2020:

    ·the applicant fulfilled commitments made relating to meeting the training requirements during that period;

    ·the applicant has complied with the applicable sponsorship obligations relating to the applicant’s training requirements during that period; and therefore, the issue of whether it is reasonable to disregard the requirements does not apply.

1. Accordingly, the requirement in r.5.19(3)(f) is met.

   Whether no adverse information is known to Immigration: r.5.19(3)(g); and Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

2. Regulation 5.19(3)(g) 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. 

3. Regulation 5.19(3)(h) requires the applicant to 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.

4. The applicant’s Mr Raihani told the Tribunal that no ‘adverse information’ whatsoever, is known about the applicant’s business or any person ‘associated with’ the business - both taken within the meaning given in rr.1.13A and 1.13B. 

5. The applicant’ written submissions of 13 December 2020 following the hearing, are that it satisfies the provisions of sub-Regulations 5.19(3)(g) and (h) as it has had no known adverse information against it and or any of its officers, and that the applicant has a satisfactory compliance record with all laws of Commonwealth and the Australian Capital Territory.

6. There is nothing before the Tribunal to suggest otherwise, or that adverse information is known, and the Tribunal accepts that:

   ·there is no ‘adverse information’ known to the Department about the nominator or a person ‘associated with’ the nominator - within the meaning given in rr.1.13A and 1.13B respectively;

   ·the matter of whether it is reasonable to disregard any such information, therefore, does not apply here; and

   ·the nominator has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

7. Accordingly, the requirement in r.5.19(3)(g) is met and also, the requirement in r.5.19(3)(h) is met.

   CONCLUSION

8. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 overall for approval of the nomination of the position in Australia.

   DECISION

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

   Stavros Georgiadis
   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.

   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

   (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); and

   Note 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.