ELOY WATER AUSTRALIA PTY LTD (Migration)

[2023] AATA 3578

ELOY WATER AUSTRALIA PTY LTD (Migration) [2023] AATA 3578 (9 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ELOY WATER AUSTRALIA PTY LTD

REPRESENTATIVE:  Mr Steven Gary Forster

CASE NUMBER:  1934314

HOME AFFAIRS REFERENCE(S):          BCC2019/3229837

MEMBER:Terrence Baxter

DATE:9 October 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 09 October 2023 at 9:54am

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – position of Technical Sales Representative – financial capacity to employ the nominee for at least two years – nominee genuinely performing the occupation – genuine need for the employment – holding company entered into a Deed of Guarantee and Indemnity – actively and lawfully operating a business in Australia – updated financial information – terms and conditions of employment no less favourable – decision under review set aside  

LEGISLATION

Income Tax Assessment Act 1997
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 359
Migration Regulations 1994, Schedule 2; rr 1.03, 2.57, 2.72, 5.19, 5.37
Superannuation Guarantee (Administration) Act 1992

CASES

Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264

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 14 November 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant, Eloy Water Australia Pty Ltd, applied for approval on 27 June 2019. The applicant nominated Mr Dominique Chibel (the nominee) in the position of Technical Sales Representative. The applicant is a wholly owned subsidiary of Eloy Water Group S.A. (the holding company). The holding company and its subsidiaries (the Group) specialise in the design, manufacture, sale and service of wastewater management systems. The headquarters of the Group are located in Belgium, and it operates in over 20 countries worldwide, including France, Germany, Sweden, Australia and New Zealand.

3. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).

4. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream. A nomination that relates to a visa in the Temporary Residence Transition stream must meet the requirements of reg 5.19(5): reg 5.19(4)(e).

5. The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(5)(l) of the Regulations because the delegate found that the applicant had not established that it had the financial capacity to meet its employer obligations in respect of the nominee and accordingly that the applicant had not demonstrated that the nominee would be employed on a full-time basis in the position for at least two years.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 4 December 2019.

7. In accordance with s 360(2) of the Migration Act 1958 (Cth) (the Act), the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review. The Tribunal has therefore made a decision on the material before it.

8. The applicant was represented in relation to the review from 29 September 2023 by its legal practitioner Mr Steven Forster.

9. 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

10. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    Evidence provided by the applicant

11. The applicant provided to the Department of Home Affairs (the Department) the following documents:

    a.The nomination application.

    b.A profit and loss statement and balance sheet for the 2018 calendar year.

    c.An employment agreement made between the holding company and the nominee dated 2 June 2016.

    d.Evidence of the applicant’s approval as a standard business sponsor.

    e.Various business activity statements.

    f.ASIC evidence of registration of the applicant.

    g.A position description.

    h.An organisational chart.

    i.An ABN Lookup report in respect of the applicant’s ABN.

    j.A letter of financial support of the applicant by the holding company.

    k.Market salary evidence.

    l.The nominee’s tax return for the 2017 financial year.

    m.Payslips of the nominee.

12. The applicant provided to the Tribunal the following documents in addition to documents previously provided to the Department:

    a.A copy of the delegate’s decision.

    b.The nominee’s taxation assessment for the 2017 financial year.

    c.A copy of the nominee’s Subclass 457 visa granted on 30 July 2016.

    d.A submission from the representative’s firm dated 16 August 2023.

    e.An ASIC current and historical company extract in respect of the applicant.

    f.The applicant’s tax returns for the 2019 to 2022 calendar years.

    g.A current organisational chart of the Group.

    h.Evidence of a Standardsmark Licence and a Product Certificate of Registration held by the Group.

    i.A position description.

    j.Evidence of tasks performed by the nominee in the position.

    k.The Australian and New Zealand Standard Classification of Occupations (ANZSCO) Classification for Unit Group 2254, Technical Sales Representatives.

    l.A submission from the representative dated 3 October 2023.

    m.A witness statement of Mr Pierre Bemelmans, Group Marketing and Sales Director of the Group dated 3 October 2023.

    n.Financial records and forecasts of the applicant.

    o.A market analysis of the applicant.

    p.A statement of the nominee dated 3 October 2023.

    q.Evidence of Subclass 457 visas granted to the secondary visa applicants.

    r.The nominee’s taxation assessments for the 2018 to 2023 financial years.

    s.A witness statement of Ms Isabelle Marneffe, Group Human Resources Director, of the Group dated 3 October 2023.

    t.Audited financial accounts of the holding company for the 2019 to 2022 calendar years, prepared in the French language but accompanied by a financial analysis prepared in the English language.

    u.A determination of the annual market salary rate (AMSR) for the occupation accompanied by supporting evidence.

    v.Copies of various invoices issued by members of the Group.

    w.An employment contract made between the applicant and the nominee dated 3 October 2023.

    x.A Deed of Guarantee and Indemnity made between the holding company and the applicant dated 3 October 2023.

    y.A submission from Mr Stephane Ghyse, Chief Financial Officer of the Group dated 3 October 2023.

    Application requirements – reg 5.19(4)(a)

13. Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:

    ·be made in accordance with approved form 1395 (Internet);

    ·identify the position;

    ·identify a person in relation to the position;

    ·identify an occupation in relation to the position,

    ·identify the subclass and stream to which the nomination relates;

    ·be accompanied by the fee mentioned in reg 5.37; and

    ·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 s 245AR(1) of the Act.

14. Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made.

15. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.

16. Having regard to the application and the information provided to the Department, the Tribunal is satisfied that the above requirements for nomination have been met.

17. Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.

    No adverse information known to Immigration – reg 5.19(4)(b)

18. Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.

19. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person.

20. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.

    Mandatory licencing, registration and memberships – reg 5.19(4)(c)

21. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

22. In this instance, the relevant State or Territory is New South Wales, the relevant occupation is Technical Sales Representatives nec (not elsewhere classified) and the date of application is 27 June 2019.

23. The Tribunal is satisfied that it is not mandatory for the nominee to hold a licence for the position of Technical Sales Representative.

24. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.

    Satisfactory compliance with employment laws - reg 5.19(4)(d)

25. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

26. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance.

27. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.

    Training contribution debts – reg 5.19(4)(da)

28. Regulation 5.19(4)(da) applies to applications made on or after 12 August 2018. It requires that any debt due by the nominator as mentioned in s 140ZO of the Act, relating to recovery of nomination training contribution charges and penalties for underpayments, has been paid in full.

29. There is no evidence before the Tribunal that there is any debt due by the applicant for the recovery of any nomination training contribution charge or late payment penalty.

30. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(da) is met.

    Visa held by identified person at time of application - reg 5.19(5)(a)

31. Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:

    ·a Subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or

    ·a Subclass 482 visa in the Medium-term stream; or

    ·for persons specified in a legislative instrument, a Subclass 482 visa in the Short-term stream; or

    ·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a Subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a Subclass 186 or 187 visa.

32. The nomination application was made on 27 June 2019. The applicant has produced evidence that the nominee held a Subclass 457 visa which was granted on 30 July 2016 and was in effect until 30 July 2020.

33. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.

    Occupation requirements – regs 5.19(5)(b), (c), (d)

34. A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Technical Sales Representatives nec.

35. Firstly, the occupation must be listed in ANZSCO and have the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 or 482 visa was granted: reg 5.19(5)(b).

36. Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made, and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c).

37. Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).

38. The occupation of Technical Sales Representatives nec is listed in ANZSCO and has the same four-digit ANZSCO occupation unit group code (Technical Sales Representatives 2254) as the occupation in relation to which the nominee’s most recently held Subclass 457 visa was granted.

39. The nominee, as the holder of a Subclass 457 visa on 18 April 2017, is a “specified person” as defined in instrument LIN 22/038 and is exempt from the operation of reg 5.19(5)(c).

40. The ANZSCO classification for this Unit Group provides that Technical Sales Representatives represent companies in selling a range of industrial, medical and pharmaceutical goods and services to industrial, business, professional and other establishments. The tasks of the occupation as listed in the classification include:

    ·compiling lists of prospective client businesses using directories and other sources

    ·acquiring and updating knowledge of employers' and competitors' goods and services, and market conditions

    ·visiting regular and prospective client businesses to establish and act on selling opportunities

    ·assessing customers' needs and recommending and explaining goods and services to them

    ·monitoring customers' changing needs and competitor activity, and reporting these developments to sales management

    ·quoting and negotiating prices and credit terms, and completing contracts and recording orders

    ·arranging delivery of goods, installation of equipment and the provision of services

    ·reporting to sales management on sales made and the marketability of goods and services

    ·following up with clients to ensure satisfaction with goods and services purchased, and resolving any problems arising

    ·preparing sales reports and maintaining and submitting records of business expenses incurred.

41. The applicant has provided comprehensive material regarding its operations in Australia and the tasks performed by the nominee in the position. The witness statements of Mr Bemelmans, Ms Marneffe and the nominee describe those tasks. The nominee has worked full-time in the position since 2016. The Tribunal is satisfied that there is no information known to Immigration to indicate that the nominee is not genuinely performing the tasks of the occupation of Technical Sales Representatives nec.

42. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.

    Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)

43. Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).

44. Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least three years in the period of four years immediately before the nomination application was made:

    ·a Subclass 457 visa in the Standard Business Sponsorship stream, or

    ·a Subclass 482 visa in the Medium-term stream, or

    ·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a Subclass 482 visa in the Short-term stream.

45. Secondly, unless the Subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the Subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least three years during the period of four years immediately before the nomination application was made. The three years of employment cannot include any periods of unpaid leave.

1. If the Subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least three years (not including any periods of unpaid leave) during the periods of four years immediately before the nomination application was made.

2. In this case, the nomination application was made on 27 June 2019. The relevant instrument made under reg 5.19(6) is LIN 22/038. Having regard to the terms of that instrument, the Tribunal finds that it is applicable and has applied the modified time periods as set out in the instrument so that the periods of three years and four years respectively in regs 5.19(5)(e) and (f) are to be replaced by the periods of two years and three years respectively.

3. As stated previously, the nominee was granted a Subclass 457 visa on 30 July 2016 which was in effect until 30 July 2020. The nomination application was made on 27 June 2019. Accordingly, the requirement in reg 5.19(5)(e) is met.

4. The witnesses, Mr Bemelmans, Ms Marneffe and the nominee, have all stated that the applicant has employed the nominee full-time since 2016. Payslips provided by the applicant confirm that the nominee’s employment commenced not later than 1 August 2016. Payslips and the nominee’s taxation assessments confirm his full-time employment from that date to the date of the nomination application. The statements by Mr Bemelmans and Ms Marneffe confirm the nominee’s employment in the nominated position. Accordingly, the requirement in reg 5.19(5)(f) is met.

5. The nominee’s Subclass 457 visa was not granted in relation to an occupation specified in an instrument under reg 2.72(13). Accordingly, reg 5.19(5)(g) does not apply.

6. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.

   Status of the nominator – reg 5.19(5)(h)

7. Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.

8. The applicant has provided evidence that it was approved as a standard business sponsor from 1 June 2016 for five years and was the standard business sponsor who last identified the nominee in a nomination under s 140GB of the Act.

9. The applicant has produced current ASIC evidence of its registration together with evidence of its registration for GST. The applicant has also produced taxation returns to the 2022 calendar year and financial evidence in respect of the operations of the Group. The applicant’s sales in the 2022 year amounted to $234,984. The Group’s turnover in that year was equivalent to $87,749,902. The Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia, namely the design, manufacture, sale and service of wastewater management systems.

10. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.

    Genuine need for employment – regs 5.19(5)(j) and (k)

11. Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/212): reg 5.19(7).

12. The occupation of Technical Sales Representatives nec is not specified in instrument LIN 19/212. Accordingly, the applicant is required to comply with regs 5.19(5)(j) and (k).

13. Regulation 5.19(5)(j) requires that the application identifies a need for the nominator to employ the nominee to work in the position under the nominator’s direct control. It is unclear whether this requirement is directed just at a statement to this effect or something of a more qualitative nature. The wording ‘identifies a need’ arguably suggests more is required to meet this criterion than simply a statement or declaration that there is such a need. ‘Identify’ is defined as ‘to recognise or establish as being a particular person or thing; verify the identity of.’[1] On that view, a decision‑maker would need to be satisfied there is a genuine need on the part of the nominator to employ someone in the nominated position.[2] However, it could alternatively be argued that reg 5.19(5)(j) is directed towards requirements for the application form/process of a more administrative nature, such that reg 5.19(5)(j) could be met by a simple statement or certification of need. Support for this view can also be found in the contrast between the wording of reg 5.19(5)(j) and reg 5.19(5)(k) which requires that there be a genuine need for the nominee to be employed in the position under the nominator’s direct control – clearly requiring a qualitative assessment, and reg 5.19(5)(l), which requires satisfaction that the employee will be employed on a full‑time basis in the position for at least two years. Given the uncertain scope of reg 5.19(5)(j), and the requirement in relation to this application to satisfy the following requirement under reg 5.19(5)(k), the Tribunal considers that this issue is more appropriately considered under reg 5.19(5)(k).

    [1] Dictionary.com (accessed August 2022).

    [2] In Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016), the Court considered a similarly worded provision in respect of a pre-1 July 2012 RSMS nomination, i.e. ‘the employer nomination is made by an employer in respect of a need for a paid employee’. Whilst on the one hand reg 5.19(4)(a)(ii) does not appear to impose a different requirement beyond emphasising the requirement for an applicant to identify the need (unlike the pre-1 July 2012 version of reg 5.19(2)(a) and (4)(a)), the wording of the criteria does differ slightly and the Tribunal exercises caution in applying the reasoning of Bharaj to a post-1 July 2012 nomination as is currently being considered.

14. The Tribunal considers that reg 5.19(5)(j) is more directed to the administrative process. The nomination application, on page 2 of that document, identifies that the position to be filled is that of Technical Sales Representative and on page 10 identifies the nominee. The Tribunal is therefore satisfied that the application for approval identifies a need for the nominee to be employed in the nominated position under the applicant’s direct control such that reg 5.19(5)(j) is met.

15. Regulation 5.19(5)(k) requires that there is genuine need for the nominee to be employed in the position under the direct control of the applicant. Mr Bemelmans stated in his witness statement that the Group had entrusted the nominee with implementing its sales and partnership functions in Australia. He said that the main objective of the position was to develop sales, sales strategy and to drive the Group’s penetration in the Australian market. He described the nominee’s functions in the position.

16. Mr Bemelmans described how the nominee had shifted the Group’s strategy in Australia to work more closely with local manufacturers. He provided a deal of confidential information regarding the development of the applicant’s business in Australia. He stated that the business was at a crucial stage of its development and that the nominee’s position is critical to the success of the business. The Tribunal notes that the nominee has been permanently employed in the position since approximately August 2016. The Tribunal is satisfied that there is a genuine need for the nominee to be employed in the position of Technical Sales Representative under the direct control of the applicant.

17. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(j) and (k) are met.

    Future employment – regs 5.19(5)(l), (m), (n)

18. Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.

19. Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least two years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument LIN 19/212): reg 5.19(7).

20. Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.

21. Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least two years and to pay the person at least the AMSR for the occupation each year. The AMSR is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    Full-time employment for two years

22. As previously recorded in these reasons, the occupation of Technical Sales Representatives nec is not specified in instrument LIN 19/212. Accordingly, the applicant is required to comply with reg 5.19(5)(l).

23. The employment contract dated 3 October 2023 provides that the nominee is to work full-time (38 hours per week). The contract is to commence on the grant of the nominee’s Subclass 186 visa and his employment is stated to be permanent. According to the Department’s policy, this satisfies the requirement for employment for at least two years. The Tribunal finds that it is the intention of the applicant and the nominee that the nominee will be employed full-time for at least two years.

24. However, it is also open to the Tribunal to consider whether the applicant’s business has the financial resources to meet the wages costs for the nominee over the employment period (MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264).

25. Based on the information provided to the Department, the delegate found that the applicant had not demonstrated that it had the financial capacity to meet its employer obligations to the nominee and accordingly found that the applicant had not demonstrated that the nominee would be employed on a full-time basis in the position for at least two years.

26. The salary to be paid to the nominee under the recent employment contract is $97,000 per annum plus superannuation. Having regard to the current superannuation guarantee rate of 11% of normal earnings, this is equivalent to a package of $107,670 per annum.

27. The Tribunal has considered the applicant’s trading record, based on the tax returns provided. The applicant has recorded modest sales, ranging from $197,602 in 2021 to $234,984 in 2022. The applicant has recorded net profits in each of those years. However, the Tribunal notes that the applicant’s expenses as recorded in the tax returns are quite low, with expenses such as the nominee’s wages having been paid to date by the Group. The tax returns are therefore of little assistance in determining the applicant’s capacity to meet its employment obligations to the nominee for at least two years.

28. The Tribunal has considered the evidence of the witnesses, particularly that of Mr Bemelmans regarding problems that the applicant may have faced in breaking into a new market such as Australia. The Tribunal accepts that entry into a new market often involves periods of loss-making and that the capacity of the applicant to pay the AMSR for two or more years really depends on the intention of the applicant’s holding company to continue to support the applicant financially.

29. The applicant has provided audited financial statements in respect of the holding company (in the French language) accompanied by an analysis of the financial statements in the English language. The holding company has a significant turnover, exceeding $87 million in 2022 calendar year. The holding company has recorded significant profits in each of the last four financial years, with those profits ranging between $1.5 million and $4.3 million.

30. The applicant has also provided comprehensive evidence in relation to its Australian operations and its projected profit making in the future. Much of that evidence was provided on a confidential basis and the Tribunal has treated that evidence accordingly.

31. Based on the holding company’s financial support of the applicant to date, the Tribunal may have been prepared to find, on the basis of that evidence alone, that the holding company would continue to support the applicant financially in the future. However, the holding company has entered into a Deed of Guarantee and Indemnity whereby it has guaranteed and indemnified the applicant for its total liability to comply with its obligation to pay the nominee at least the AMSR for the occupation for at least two years.

32. The Tribunal is satisfied that the applicant has the financial capacity to meet its employment obligations to the nominee for at least two years. Accordingly, the Tribunal finds that the nominee will be employed on a full-time basis in the position for at least two years.

    Terms and conditions of employment not to include an express exclusion of the possibility of extension

33. As recorded previously in these reasons, the recent employment contract provides that the nominee’s employment is permanent. As no specific period of employment has been stated in the contract, there is no exclusion of the term of employment. Accordingly, the Tribunal finds that the terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment.

    The applicant’s capacity to employ the nominee for at least two years and to pay the AMSR for the occupation

34. As is recorded later in these reasons, the applicant has determined the AMSR at $91,481. The Tribunal has found that the applicant has the financial capacity to employ the nominee for at least two years and to pay him the nominated salary of $97,000 per annum. It therefore follows that the Tribunal is satisfied that the applicant has the financial capacity to pay the AMSR of $91,481 for that period of two years.

35. The Tribunal is satisfied that the applicant’s business has the capacity to employ the nominee for at least two years and to pay him at least the AMSR for the occupation in each of those two years.

36. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met.

    Annual earnings – reg 5.19(5)(o)

37. Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033. Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the AMSR for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The AMSR means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the AMSR, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument (TSMIT), unless the AMSR for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);

    ·the identified person’s annual earnings in relation to the occupation will not be less than the AMSR for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;

    ·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the AMSR for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

38. The Tribunal is satisfied that the nominee’s annual earnings are $97,000. The specified amount of annual earnings in instrument IMMI 18/033 is $250,000. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

    Regulation 2.72(15)(c) – has the applicant determined the annual market salary rate for the occupation in accordance with the instrument?

39. The Tribunal is satisfied, from the evidence provided by the applicant, that the applicant does not have an Australian worker performing equivalent work to that to be performed by the nominee in the same workplace as the nominee. The Tribunal is also satisfied that there is no fair work instrument, State industrial instrument or transitional instrument applicable to the nominated occupation.

40. The instrument provides that, in the circumstances, the AMSR must be determined by reference to “relevant information”, which is defined as including remuneration surveys generated across the relevant industry by a reputable organisation or body and job advertisements for the occupation. The applicant has provided evidence from the platform PayScale that the average salary payable to Technical Sales Representatives in Australia ranges between $51,000 per annum and $91,000 per annum with an average salary of $69,507. The applicant also provided evidence from the platform Jora that the average annual salary for Technical Sales Representatives in Sydney ranges between $70,000 and $110,000 per annum with an average of $90,000 per annum. The applicant provided a job advertisement from SEEK for a Technical Sales Representative in Sydney with an advertised salary of $80,000 to $100,000 per annum. Based on that evidence, the applicant determined the AMSR at $91,481. The Tribunal is satisfied that the applicant has determined the AMSR for the occupation in accordance with the instrument.

41. For these reasons the requirements of reg 2.72(15)(c) are met.

    Regulation 2.72(15)(d) – is the AMSR, excluding any non-monetary benefits, for the occupation, as determined, less than the TSMIT

42. The TSMIT specified in IMMI 18/033 is $53,900 per annum. The AMSR of $91,481 as determined by the applicant in accordance with the instrument exceeds the TSMIT.

43. For these reasons the requirements of reg 2.72(15)(d) are met.

    Regulation 2.72(15)(e) – will the nominee’s annual earnings be less than the AMSR for the occupation as determined?

44. The nominee’s annual earnings will be $97,000. These annual earnings are not less than the AMSR as determined.

45. For these reasons the requirements of reg 2.72(15)(e) are met.

    Regulation 2.72(15)(f) – will the nominee’s annual earnings, excluding any non-monetary benefits, be less than the TSMIT?

46. The nominee’s annual earnings, excluding any non-monetary benefits, will be $97,000. These annual earnings exceed the TSMIT of $53,900.

47. For these reasons the requirements of reg 2.72(15)(f) are met.

    Regulation 2.72(15)(g) – is there information known to Immigration that indicates that the AMSR for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation?

48. The AMSR of $91,481 has been determined by reference to relevant information as defined in the instrument. The AMSR exceeds the average salary range referred to in the PayScale evidence and is at the higher end of the job advertisement from SEEK. It is approximately equivalent to the average salary in the range referred to in the Jora evidence. There is no evidence before the Tribunal to indicate that the AMSR for the occupation as determined is inconsistent with Australian labour market conditions relevant to the occupation.

1. For these reasons the requirements of reg 2.72(15)(g) are met.

2. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.

   No information to indicate less favourable employment conditions – reg 5.19(5)(p)

3. Regulation 5.19(5)(p) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

4. The employment contract provides that the nominee is entitled to annual leave and personal leave as specified in the contract. Those entitlements are in accordance with entitlements specified in the National Employment Standards. The nominee is entitled to long service leave, unpaid parental leave, compassionate leave, community service leave and family and domestic violence leave in accordance with law. The applicant is required to make superannuation contributions in respect of the nominee in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth).

5. There is no information before the Tribunal which indicates that the nominee’s employment conditions (other than in relation to earnings) are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location.

6. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.

   Information required by the Minister – reg 5.19(5)(q)

100.   Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least two years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least two years and pay them at least the annual market salary rate.

101.   The Tribunal has set out in these reasons the Tribunal’s consideration of the information provided by the applicant for the purposes of regs 5.19(k) to (n). The Tribunal finds that the applicant has provided the information required by the Minister for the purposes of those regulations.

102. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(q) is met.

103. 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

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

Terrence Baxter
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(a)be made in accordance with approved form 1395 (Internet); and

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and

(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and

(g)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.

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)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;

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

Temporary Residence Transition stream—additional requirements for approval

(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

(a)at the time the application is made, the identified person holds:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

(b)the occupation:

(i)is listed in ANZSCO; and

(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

(ii)apply to the identified person in accordance with an instrument made under that subregulation;

(d)either:

(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

(ii)it is reasonable to disregard any such information;

(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

(i)for a total period of at least 3 years (not including any periods of unpaid leave); and

(ii)on a full‑time basis, with the employment being undertaken in Australia;

(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

(h)the nominator:

(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

(ii)is actively and lawfully operating a business in Australia;

(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i)paragraph 2.72(15)(a) did not apply; and

(ii)references to the nominee were references to the identified person; and

(iii)references to the person were references to the nominator;

(p)either:

(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii)it is reasonable to disregard any such information;

(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

Minister may vary certain Temporary Residence Transition stream requirements

(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

(8)The Minister may, by legislative instrument, specify:

(a)occupations for the purposes of paragraph (5)(c); and

(b)persons who are exempt from the operation of that paragraph; and

(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(i)the nominator;

(ii)the identified person;

(iii)the occupation;

(iv)the position in which the identified person is to work;

(v)the circumstances in which the occupation is undertaken;

(vi)the circumstances in which the person is to be employed in the position.