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

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).
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.
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).
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).
The delegate refused the application on the basis that the applicant’s nomination…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 3578
Decision Date: 9 October 2023

CaseChat Overview and Summary

The case involved Eloy Water Australia Pty Ltd (the applicant) and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), with the matter heard by the Administrative Appeals Tribunal. The dispute concerned the approval of a nomination for a Technical Sales Representative position under the Temporary Residence Transition stream. The applicant sought to have a decision to refuse approval of this nomination set aside.

The primary legal issues before the Tribunal were whether the applicant met the general requirements for approval of a nomination under regulation 5.19(4) of the Migration Regulations 1994, and the specific requirements for the Temporary Residence Transition stream under regulation 5.19(5). These requirements included demonstrating financial capacity to employ the nominee for at least two years, that the nominee was genuinely performing the nominated occupation, and that there was a genuine need for the employment. The Tribunal also considered whether the applicant was actively and lawfully operating a business in Australia and if the terms and conditions of employment were no less favourable than those provided to Australian employees.

The Tribunal's reasoning focused on assessing the evidence provided by the applicant against each regulatory requirement. It considered financial statements, employment agreements, business activity statements, and ASIC records to determine the applicant's financial capacity and operational status. The Tribunal also examined the nominee's employment history, position description, and evidence of tasks performed to ascertain the genuineness of the occupation and the need for it. Crucially, the Tribunal noted the provision of a Deed of Guarantee and Indemnity by a holding company, which addressed concerns about the applicant's financial capacity. The Tribunal found that the applicant had satisfied the requirements regarding mandatory licensing, satisfactory compliance with employment laws, and the absence of training contribution debts.

The Tribunal concluded that the applicant had met the necessary requirements for the approval of the nomination. Consequently, the Tribunal set aside the delegate's decision to refuse the nomination and substituted it with a decision to approve the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. 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)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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) 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. 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. The Tribunal is satisfied that it is not mandatory for the nominee to hold a licence for the position of Technical Sales Representative. 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) 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. 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. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.Training contribution debts – reg 5.19(4)(da) 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. 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. 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) 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.