FIXTEAM PTY LTD (Migration)

[2018] AATA 5688

FIXTEAM PTY LTD (Migration) [2018] AATA 5688 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  FIXTEAM PTY LTD

CASE NUMBER:  1708794

DIBP REFERENCE(S):  bcc2016/3065962

MEMBER:Denise Connolly

DATE:8 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 November 2018 at 1:22pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – training requirements – plastering business – evidence of training expenditure provided – expenditure on training was at least 1% of payroll expenditure – decision under review set aside

LEGISLATION
Migration Act 1958, s 245AR(1)
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2 cl 457.223(4)

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 Immigration on 13 April 2017 to refuse 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 15 September 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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)(f) of the Regulations because she was not satisfied the applicant had provided evidence to demonstrate it had met its training requirements during the period of its most recent approval as a standard business sponsor.

5. Mr Robert Dudok appeared, on behalf of the applicant, before the Tribunal on 3 October 2018 to give evidence and present arguments.

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.

9. The applicant is a plastering business. It sponsored the nominee, Shane Collins, for his Subclass 457 visa. The Departmental records confirm he held the visa at the time of the nomination application. When making the application the applicant provided information confirming the business is lawfully operating. There is a signed contract of employment between the applicant and the nominee dated 29 November 2016 stating the base rate of pay will be $80,000 per year. The applicant also provided various documents indicating that the applicant had employed an apprentice in 2012. Receipts were provided for expenditure on training in April 2014 and April 2017. The delegate refused to approve the nomination on the basis that the applicant had not provided evidence demonstrating the business had fulfilled its commitments to meeting training requirements during the period of the most recent approval is a standard business sponsor, 23 August 2012 to 23 August 2015.

10. The representative has provided a written submission. It advises that the nominee was granted the Subclass 457 visa on 23 November 2012 having been sponsored by the applicant to work in the occupation Solid Plasterer. He provides evidence of the business’ payroll and training expenditure, the duties of the position and the nominee’s salary, discussed in more detail below.

11. At the hearing the Tribunal discussed with the applicant the requirements of the law.  The applicant confirmed that the nominated occupation is Solid Plasterer. His business’ key role is to provide commercial installation. Fixteam Pty Ltd was established in 2008 and provided services such as installing building facades. The Tribunal noted that it had not been able to find evidence of Fixteam’s current operations and asked about the trading name for the business. The applicant explained that his core business is now the related entity Primo Building Services Pty Ltd (Primo) and that Fixteam is contracted to provide services to Primo. However Mr Dudok is a Director of both of those businesses and controls the day-to-day operations and decisions for both. Initially he tried to merge the two companies but this would have created a problem for the nominee’s visa requirements to continue to work for the same business.

12. The applicant explained that Fixteam relies on Primo for contracts. Not all of his business’ staff are employed by Fixteam. Other employees are now employed by Primo, except for his employees who are visa holders.

13. The applicant confirmed that the nominee is paid by bank transfer and his current annual base salary is $80,000. He confirmed that he would provide after the hearing further financial documentation demonstrating that the nominee has been paid in accordance with the employment contract. He discussed the value the nominee brings to the business. He is currently working at the National Convention Centre where he is a specialist solid plasterer. It would be an enormous loss to the business if the nominee were not granted his visa. He supervises up to 10 people. He works on big tier 1 jobs as a specialist in insulation. The business currently has an apprentice. The nominee has supervised apprentices in the past but is not currently or until such time as his visa issue is determined.

14. After the hearing the applicant provided to the Tribunal various documentation including the following. The representative provided an explanation of the relationship between the applicant and the associated entity Primo Building Services Pty Ltd. ASIC evidence was provided demonstrating that Mr Dudok is Director and owner of both companies, and controls both companies’ daily operations of financial and operational matters, including making final decisions.

15. The applicant also provided a signed employment contract confirming the nominee’s annual base salary is $80,000 to work a 38 hour week, plus the superannuation guarantee. He provided bank records confirming the agreed salary is paid and various receipts for training expenditure.

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

16. 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.

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

18. The application for approval identifies Shane Conor Collins who, according to Departmental records, held a Subclass 457 visa from 23 November 2012 until 23 November 2016 that was granted on the basis of satisfying cl.457.223(4) of Schedule 2.

19. The occupation identified in the application is Solid Plasterer (ANZSCO 333212). The applicant has provided evidence that the business has employed and paid wages to the nominee (PAYG payment summaries, corresponding ATO Notices of Assessment and HR records). The applicant and the nominee also gave oral evidence that the nominee has been employed in the occupation identified in the application. The Tribunal is satisfied on the basis of this evidence and the Department’s records that the occupation identified is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is also satisfied that this occupation carries the same ANZSCO code as the occupation carried out by the nominee whilst he held the Subclass 457 visa.

20. Given the above findings, the requirements in r.5.19(3)(a) are met.

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

21. 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.

22. The Tribunal has had regard to ASIC information provided after the hearing, the financial documents and the applicant’s oral evidence at the hearing. On the basis of this evidence the Tribunal is satisfied that the nominator is actively and lawfully operating a plastering business in the ACT. On the basis of the Department’s electronic records the Tribunal is satisfied the applicant was previously an approved standard business sponsor in the period August 2012 to August 2015.

23. Given the above, the requirements in r.5.19(3)(b) are met.

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

24. 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.

25. The applicant has provided to the Tribunal evidence that the nominee has been employed in the position at least since 1 July 2012 (HR records), and has continued to be employed since (his PAYG payment summaries for the 2014, 2015, and 2016 financial years and internet banking transfer records showing wage transfers to the nominee in the period January 2017 to October 2018). On the basis of the employment contract and the oral evidence at the hearing, the Tribunal is satisfied the nominee has been employed as a solid plasterer. On the basis of all of this evidence, the Tribunal is satisfied that the nominee has been employed full time in the position in Australia as the holder of a Subclass 457 visa for at least 2 years in the 3 year period immediately before this nomination application was made. The requirements in r.5.19(3)(c)(i) have therefore been met.

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

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

27. 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.

28. The Tribunal has had regard to the signed contract of employment for the nominee dated 5 October 2018 which was provided to the Tribunal. The contract, which sets out the terms and conditions of employment, indicates that the period of employment is a minimum of 2 years full time from the date of the visa grant. The base salary offered is $80,000 to work a 38 hour week.

29. The Tribunal has had regard to the financial statements provided, the BAS, the PAYG payment summaries, the corresponding Notices of Assessment and bank records showing transfers of income to the nominee. On the basis of this material the Tribunal is satisfied that the nominator has the financial capacity to maintain the nominee's employment as they have done since at least July 2012.

30. The Tribunal is also satisfied on the basis of the employment contract and other material before it that the nominee will be employed on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending the period of employment.

31. Given these findings the requirement in r.5.19(3)(d) is therefore met.

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

32. 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.

33. The Tribunal has considered information from Job Outlook, which indicates Plasterers in Australia receive weekly pay of $1000 (i.e. $52,000 per year).  Payscale.com.au indicates the median hourly rate for Plasterers in the ACT is $25 (i.e. $49,400 per year). There is no information available specifically concerning Solid Plasterers.

34. The Tribunal accepts that the nominee in this case is very experienced, has had supervisory responsibilities and is considered a specialist. This probably explains why he is paid more than the median hourly rate for a Plasterer working in the ACT.

35. On the basis of the information before it, the Tribunal is satisfied that the nominee's base salary is within the appropriate range of that normally paid to an experienced Plasterer. There is no evidence before the Tribunal to indicate other plasterers employed by the business are earning higher incomes than the nominee.

36. 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.

37. Given the above, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.

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

38. 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.

39. The Tribunal finds the period of the applicant’s most recent sponsorship approval was 23 August 2012 to 23 August 2015.

40. The Tribunal notes the delegate was not satisfied the applicant met this requirement because the evidence before her indicated the applicant had not spent an amount on training equivalent to at least 1% of the payroll expenditure in the relevant period. The Tribunal notes however that the delegate included in the applicant’s payroll expenditure $349,261 on subcontractors in the 2015 financial year. The Tribunal has considered the financial material before it and notes this was payroll expenditure by the associated entity, Primo Building Services Pty Ltd (Primo). The Tribunal notes that the delegate sited the applicant’s 2015 financial year financial statement (for Fixteam Pty Ltd) which records the wages and superannuation expenditure as $257,328 and $24,446, a total expenditure of $281,774. That financial statement is not on the Department’s file.

41. The applicant has provided to the Tribunal financial documentation and a statement from the business’ accountant stating that the total payroll expenditure, inclusive of superannuation and subcontractor payments, in the period of the standard business sponsorship was as follows:

    a.23 August 2012 to 22 August 2013 - $955,241

    b.23 August 2013 to 22 August 2014 - $275,132

    c.23 August 2014 to 23 August 2015 - $228,249.

42. Having regard to the financial material provided the Tribunal accepts that the evidence from the business’ accountant is a reliable record of the business’ payroll expenditure for the first and second period. The Tribunal notes the total expenditure of $281,774 for the 2015 financial statement referred to by the delegate (but not on the Department’s file) is different to the expenditure provided by the applicant’s accountant for the period 23 August 2014 to 23 August 2015. The Tribunal notes the applicant’s 2015 financial statement provided to the Tribunal records the wages, subcontractor and superannuation expenditure totalling $205,813. The Tribunal also notes the period covered by the accountant is in fact slightly different to the 2015 financial year. The Tribunal is of the view there is no reason to doubt that the accountant’s calculation is correct. Accordingly it is satisfied it can rely on the accountant’s calculation of the payroll expenditure for the third period set out above.

43. The applicant provided evidence of expenditure on training, invoices from Construction Industry Training and Employment Association as follows:

    a.$1426 for apprentice Nathan Clothier in December 2012

    b.$844 for apprentice Nathan Brown in December 2012

    c.$1401 for apprentice Nathan Clothier in November 2012

    d.$1056 for apprentice Nathan Brown in November 2012

    e.$1401 for apprentice Nathan Clothier in November 2012

    f.$1056 for apprentice Nathan Brown in November 2012

    g.$1331 for apprentice Nathan Clothier in November 2012

    h.$1306 for apprentice Nathan Brown in November 2012

    i.$1105 for apprentice Nathan Brown in October 2012

    j.$560 for apprentice Nathan Brown in October 2012

44. On the basis of this information the Tribunal finds the expenditure on training (being employment of apprentices) in August 2012 to August 2013 was $11,486. The Tribunal is therefore satisfied that the applicant’s expenditure on training in that year was at least 1% of the payroll expenditure of $955,241.

45. The applicant has provided evidence of expenditure on training, invoices to Fixteam Pty Ltd from Crown Institute of Business and Technology, as follows:

    a.$2680 for Rob Dudok, the owner and director, on 11 April 2014

    b.$2752 provided to Derek McInerney, on 22 July 2014.

46. On the basis of this information the Tribunal finds expenditure and training in August 2013 to August 2014 was $5432. The Tribunal is therefore satisfied that the applicant’s expenditure on training in that year was at least 1% of the payroll expenditure of $275,132.

47. The applicant provided evidence of a contract dated August 2015 with apprentice Shaun Burke who was paid $8978 however he was employed by the associated entity, Primo Building Services Pty Ltd (Primo), in the 2016 financial year. Another apprentice Zachary Robb was paid $55,439, also by Primo, in that year. Zachary Robb was paid $22,082 in the 2015 financial year.

48. The applicant has also provided tax invoices issued to Fixteam Pty Ltd for scaffolding VOC (verification of competency) training as follows:

    a.$2750 on 4 April 2015

    b.$1665 on 19 November 2014.

49. On the basis of the scaffolding training evidence the Tribunal is satisfied there was training expenditure of $4415 in the period 23 August 2014 to 23 August 2015. The Tribunal is therefore satisfied that the applicant’s expenditure on training in that year was at least 1% of the payroll expenditure of $228,249.

50. While it is not necessary to make findings about Primo’s expenditure on training the Tribunal notes that Primo has employed apprentices during the relevant period.

51. Having made these findings, the Tribunal is satisfied the applicant has fulfilled commitments made relating to meeting the training requirements during the relevant period and therefore complied with the applicable sponsorship obligations relating to the applicant’s training requirements during that period.

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

    No adverse information known to Immigration: r.5.19(3)(g)

1. 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. 

2. The Tribunal is not aware of any adverse information known to Immigration about the nominator or person associated with the nominator.

3. Accordingly, the Tribunal is satisfied the requirement in r.5.19(3)(g) is met.

   Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

4. 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.

5. There is no evidence before the Tribunal to indicate that the applicant has not complied with workplace relations laws.

6. Accordingly, the requirement in r.5.19(3)(h) is met.

   Conclusion

7. 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

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

   Denise Connolly
   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.