Freshworks Australia Pty Ltd (Migration)

[2021] AATA 3933

Freshworks Australia Pty Ltd (Migration) [2021] AATA 3933 (5 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Freshworks Australia Pty Ltd

CASE NUMBER:  1825037

HOME AFFAIRS REFERENCE(S):          BCC2017/4803243

MEMBER:Peter Emmerton

DATE:5 August 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 05 August 2021 at 1:46pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Corporate General Manager – genuine need – business with approximately 30 employees – leadership required – substantial and rapid growth – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 7 August 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 15 December 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(3)(i) of the Regulations because they were not satisfied that the nominator had demonstrated there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

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

6. 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

7. 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.

8. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

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

10. 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 and identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control

11. The company applied on the approved form, paid the required application fee and included the required written certification relating to conduct that contravenes s.245AR(1). The application therefore satisfies r.5.19(3)(a)(i).

12. The application identifies Mr Strelesh Vijayan Pillai for the nominated occupation of Corporate General Manager, ANZSCO 111211, Skill level 1. The Department’s movement records, and the visa applicant’s application confirm that his 457 Visa was initially granted on 10 June 2015. The Tribunal is satisfied from this evidence that the nominee held a Subclass 457 (Temporary Work (Skilled)) Visa at the date the application was made on 15 December 2017. The applicant therefore satisfies the requirement in r.5.19(3)(a)(ii).

13. Regulation 5.19(3)(a)(iii) requires the applicant to identify an occupation with the same ANZSCO unit code as the occupation carried out by the holder of the Subclass 457 Visa identified in the application. The company nominated the position of Corporate General Manager in the application for approval of the nomination, ANZSCO 111211. The Tribunal has carefully considered the tasks undertaken by the nominee and compared these to the tasks listed in ANZSCO 111211. The Tribunal is satisfied that the nominee is undertaking the role of Corporate General Manager within the business. The Tribunal finds that the applicant has identified the occupation of ANZSCO 111211, which has the same (4-digit occupation unit) group code as the occupation carried out by Mr Strelesh Vijayan Pillai. Accordingly, the Tribunal finds that the applicant satisfies r.5.19(3)(a)(iii).

14. The application has identified a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control. Accordingly, the Tribunal finds that the applicant satisfies r.5.19(3)(a)(iv).

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

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

16. 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.

17. The Department's records confirm the applicant was the Standard Business Sponsor who last identified Mr Strelesh Vijayan Pillai in a nomination under section 140GB of the Act. In that case, it satisfies regulation r.5.19(3)(b)(i).

18. The Department's records confirm the company was approved as a Standard Business Sponsor, (SBS), most recently for 5 years from 24 July 2019 until 24 July 2024. The Tribunal has had regard to the business registration and ABN records on the ASIC public databases, as well as ATO Tax Returns for FY 2018 and FY 2019 for the business, provided by the applicant to the Tribunal. It has in addition perused the Accountant prepared Profit and Loss Statements and associated Financial Documentation for FY 2017, FY 2018, FY 2019 and FY 2020. The Tribunal accepts from this that the applicant is currently registered as a business, Freshworks Australia Pty Ltd, (ABN 88 604 740 043) and ASIC records show that it has been registered since 13 March 2015. The Tribunal is satisfied based on the fore-mentioned evidence that the applicant is actively and lawfully operating a business in Australia. It therefore satisfies regulation r.5.19(3)(b)(ii).

19. The Department's records also confirm the applicant did not obtain approval as a Standard Business Sponsor on the basis that it was operating a business outside Australia. In that case, it meets the criteria in regulation r.5.19(3)(b)(iii).

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

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

21. 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 they hold 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 they were 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.

22. The Tribunal is satisfied from the evidence presented in the original visa application provided by the Department, the original employment contract and written evidence provided prior to the hearing that Mr Strelesh Vijayan Pillai has been employed as a Corporate General Manager with Freshworks Australia Pty Ltd Pty Ltd since July 2015.

23. The Tribunal finds from the above evidence that Mr Strelesh Vijayan Pillai was employed full-time in Australia, as a Corporate General Manager by Freshworks Australia Pty Ltd for more than two of the three years preceding the nomination application made on 15 December 2017. During this period, he was the holder of a Subclass 457 visa granted on 10 June 2015.

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

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

25. Regulation 5.19(3)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

26. The Tribunal notes that the business is a mid-sized organisation with substantial and growing positive trading revenues. The ATO Tax Returns for FY 2018 and FY 2019 and correlating financial statements for FY 2017-FY 2020, show rapid growth with consistent and growing trading profits. Current BAS documentation demonstrates an ongoing trend of strong revenue growth. The nominee was paid throughout the period under review.

27. The Tribunal is satisfied that the nominator will be able to sustainably employ the nominee for the required 2-year minimum period.

28. The Tribunal has had regard to the signed current Employment Agreement dated 21 April 2021 with a base salary of $136,000, plus bonuses plus Superannuation Guarantee. It is noted from Taxation Assessment documents provided that the visa applicant has had consistently substantial income above the base salary over a number of years. The Tribunal is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.

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

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

30. 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.

31. The Tribunal has been provided with the nominee’s current employment contract, ($136,000 base plus substantial bonuses). The Tribunal accepts, having researched the salaries offered for similar positions and perused the evidence of remuneration for other similar roles that the nominee’s current contracted annual salary plus Superannuation, is in the mid to upper quartiles. The Tribunal accepts it as appropriate and is reflective of the nominee’s experience relevant to the nominated position.

32. The Tribunal acknowledges the challenges of recruiting and retaining qualified Corporate General Managers throughout Australia and Internationally. One of the challenges faced by the nominator is their reliance upon Mr Strelesh Vijayan Pillai. The Tribunal is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience, performing equivalent work in the same workplace.

33. Accordingly, the requirements of r.5.19(3)(e) are met.

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

35. 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.

36. The applicant was most recently approved as a Standard Business Sponsor, (SBS) on 24 July 2019 for a period of five years. The Tribunal notes that the previous sponsorship obligation in relation to training no longer applies, as of 18 March 2018. In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied.

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

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

38. 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 r.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia.

39. Accordingly, the requirements of r.5.19(3)(g) are met.

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

40. Regulation 5.19(3)(h) requires that the applicant 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia.

41. Accordingly, the requirements of r.5.19(3)(h) are met.

    Genuine need to employ nominee: r.5.19(3)(i)

42. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

43. The Tribunal notes The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(i) of the Regulations because the nominator had failed to demonstrate that there was a genuine need for the nominator to employ the identified person to work in the nominated position under the nominator’s direct control.

44. The Tribunal has formed a different view with the assistance of the substantial passage of time from the date of the original application coupled with the additional evidence put before it. It acknowledges that the delegate was given significantly less evidence upon which to determine their original decision.

45. The Tribunal notes that the business has a total of approximately 30 employees associated principally with Sales, Marketing, Product Engineering. Such an organisation requires a leader with considerable technical, leadership and managerial competencies.

46. The Tribunal accepts the submission from the nominator that one of the reasons the organisation has flourished financially and reputationally is as a direct result of the work and dedication of the visa applicant. It is noted by the Tribunal that under his leadership from the commencement of the business that growth has been both substantial and rapid.

47. The Tribunal observes that in its’ experience, no organisation is likely to employ an executive at this level of remuneration and subsequent oncosts, over such a time expanse, without a strong belief they are central to their business succeeding.

48. Accordingly, the requirements of r.5.19(3)(i) are met.

    Conclusion

49. Based on the findings above, the Tribunal is satisfied that the applicant meets all the requirements of r.5.19(3) and therefore, r.5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Peter Emmerton
    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

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.