Ettitude Pty Ltd (Migration)

Ettitude Pty Ltd (Migration) [2020] AATA 6080 (22 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ettitude Pty Ltd
CASE NUMBER:  1813924
HOME AFFAIRS REFERENCE(S):          BCC2017/1700061
MEMBER:Mary Sheargold
DATE:22 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 22 December 2020 at 9:00am
CATCHWORDS
MIGRATION – Temporary Residence Transition nomination stream – Training Benchmark – standard business sponsorship approval – standard business sponsor– applicant is actively and lawfully operating its business – compliance with workplace relations laws– decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 140GB, 359
Migration Regulations 1994, rr 1.13, 2.72
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 23 April 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 12 May 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i) of the Regulations because it did not demonstrate that it had met either Training Benchmark A or Training Benchmark B in any of the years of its most recent standard business sponsorship approval.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the 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.
On 9 November 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting it to provide updated information in relation to its business. On 23 November 2020, the applicant provided the following documents:
·a copy of the annual review fee notification from the Australian Securities and Investments Commission (ASIC) for the 2020 review period;
·a current and historical company extract for the applicant from ASIC;
·copies of business activity statements (BAS) for the applicant’s business for each quarter from 1 July 2018 to 30 June 2020 inclusive;
·profit and loss statements for the applicant’s business for the financial years ending on 30 June 2018, 2019, and 2020;
·copies of the company tax returns for the applicant for the financial years ending on 30 June 2018 and 30 June 2019;
·a letter from the applicant’s accountant dated 15 October 2020;
·organisational charts for the applicant’s business dated 12 November 2020;
·an updated employment contract for the nominee dated 10 October 2020;
·a position description for the nominee’s role;
·PAYG summaries for the nominee for the financial years ending on 30 June 2015, 2016, 2018, 2019 and 2020;
·copies of notices of assessment for the nominee from the ATO for the financial years ending on 30 June 2015, 2016, 2018 and 2019;
·evidence of the nominee’s most recent Subclass 457 visa;
·a copy of an Approval of Sponsorship notification from the Department dated 10 May 2018;
·evidence of payment of the Skilling Australian Fund levy as required by the applicant during its most recent standard business sponsorship approval; and
·examples of the nominee’s work.
On 17 December 2020, the Tribunal wrote to the applicant requesting an updated contract of employment, and this was provided on 21 December 2020. Having considered all of the documentation received by the applicant, pursuant to s.360(2)(a) of the Act, the Tribunal has determined that it is able to decide the review in the applicant’s favour on the basis of the material now before it.
The application must be compliant: r.5.19(3)(a)
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.
The Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form. The letter from the Department to the applicant dated 12 May 2017 indicates that the nomination application fee has been paid.
The application for approval identifies Ms Ka Yi Jessica Pang, the nominee who, according to Departmental records, held a Subclass 457 visa from 1 September 2014 to 1 September 2016 and a second Subclass 457 visa from 14 January 2017 that was granted on the basis of satisfying cl.457.233(4) of Schedule 2 of the Regulations.
The application for approval identifies the occupation of Marketing Specialist, ANZSCO 225113. Based on the employment documents for the nominee, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by her as the holder of a Subclass 457 visa. Accordingly, the Tribunal is satisfied that this occupation carries the same 4 digit code (2251) as the occupation carried out by the nominee whilst she held the Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
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.
Departmental records confirm that the nominator was the standard business sponsor who last identified Ms Pang in a nomination made under s.140GB of the Act. The nominator 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).
The applicant has provided the Tribunal with evidence of registration of its company and its ABN, BAS, company tax returns, profit and loss statements, and other information about the business’s activities.
On the basis of the material before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia. Therefore, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
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.
In this case, the relevant provision is set out in r.5.19(3)(c)(i). The nomination application was made on 12 May 2017.
The nominee was granted a Subclass 457 visa in the nominated occupation of Marketing Specialist on 1 September 2014, sponsored by the applicant. That Subclass 457 visa ceased on 1 September 2016, and the nominee was granted another Subclass 457 visa on 14 January 2017, also sponsored by the applicant. According to Departmental records, the applicant was approved as a standard business sponsor from 14 July 2014 to 14 July 2017, and according to documents provided by the applicant, the applicant has been approved as a standard business sponsor from 10 May 2018 to 10 May 2023.
The Tribunal has had regard to the PAYG statements for Ms Pang for the financial years ending on 30 June in each of 2015 to 2020 inclusive and the notices of assessment from the ATO for the same financial years, and finds that the nominee has worked for the applicant continuously since being granted her first Subclass 457 visa in September 2014.
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)
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.
The applicant has provided the Tribunal with a copy of the employment contract between the applicant and the nominee dated 18 December 2020 (the employment contract). The employment contract states that the nominee will be employed on a full-time basis, and clause 4 of the employment contract notes that the nominee’s ordinary hours of work are 9:00am to 5:00pm Monday to Friday, plus any reasonable additional hours.
Clause 1.1(b) of the employment contract states that the nominee’s employment will be full-time, and clause 1.1(d) states that the nominee will be employed “for a term of a least 2 year and there will be option to renew your contract pursuant to availability of the position and plans of the business”. The Tribunal is satisfied that the terms and conditions of employment do not expressly exclude the possibility of extending the period of employment beyond the initial minimum 2 year term expressed in the employment contract.
The Tribunal has considered the profit and loss statements for the applicant’s business for the financial years ending on 30 June 2018, 2019 and 2020, the applicant’s recent company tax returns, the letter from its accountant dated 15 October 2020, and the PAYG statements for the nominee for each financial year from the year ending on 30 June 2015 to the year ending on 30 June 2019 inclusive. Based on the information set out in those documents, the Tribunal is satisfied that the applicant has the financial capacity to pay the nominee’s salary of $73,000 per annum plus 9.5% superannuation for at least 2 years.
Based on the evidence before it, the Tribunal is satisfied that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly exclude the possibility of extending the period of employment.
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)
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.
The employment contract states that the nominee will be paid a salary of $73,000 per annum plus superannuation. The Tribunal has considered data on PayScale regarding the average salary for a marketing specialist in Melbourne and notes the median salary is quoted as $66,294 per annum, with a salary range from $50,000 to $90,000 per annum. The Tribunal finds that the nominee’s proposed salary of $73,000 per annum plus superannuation is above the median for the role in Melbourne.
The Tribunal has considered the terms of the employment contract and finds that the provisions with respect to leave (including long service leave), notice, and termination are in accordance with the obligations in the Award and the minimum standards set out in the National Employment Standards.
Based on all the evidence before it, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
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.
The delegate refused to approve the application because the applicant did not demonstrate that it had met its obligations under either Training Benchmark A or Training Benchmark B during the period of its most recent standard business sponsorship approval. The Tribunal notes that at the time of its decision, a more recent standard business sponsorship approval dated 10 May 2018 has been granted to the applicant.
The requirements at the time of the most recent sponsorship approval did not include any training commitments that have to be fulfilled by the applicant. The Tribunal notes that the sponsorship obligation to provide training no longer applies. In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
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.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
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.
There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws. The Tribunal notes that the employment contract provides the minimum terms and conditions of employment set out in workplace relations legislation.
Accordingly, the requirement in r.5.19(3)(h) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mary Sheargold
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.

[2020] AATA 6080

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