G4A3 Pty Ltd (Migration)

[2021] AATA 1468

G4A3 Pty Ltd (Migration) [2021] AATA 1468 (16 March 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  G4A3 Pty Ltd

CASE NUMBER:  1807498

HOME AFFAIRS REFERENCE(S):          BCC2017/4163509

MEMBER:  Joanne Bakas

DATE:  16 March 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 16 March 2021 at 4:25pm

CATCHWORDS
MIGRATION– Temporary Residence Transition nomination stream – Metal Fabricator – applicant has been employed in the nominated occupation for at least three years – applicant was approved as a standard business sponsor –decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, 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 8 March 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).

1. The applicant applied for approval on 8 November 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).

1. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

1. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations. This requires that the person nominated for the position will be employed on a full-time basis in the position for at least 2 years. The delegate was not satisfied on the evidence before them that this criterion was met.

1. Mr George Nikoloudis appeared on behalf of the applicant before the Tribunal on 24 November 2020 via audio and video conference on MS Teams to give evidence and present arguments.

1. The Tribunal exercised its discretion to hold the hearing by audio and video conference on MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by MS Teams. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

1. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

1. 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

1. 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.

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

1. 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 identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.

1. The application identified a need for the nominator to employ Mr Wayne Murray as the person to work in the position of Metal Fabricator (ANZSCO 322311) under their direct control. According to the Department, he was a 457 visa holder at the time the nomination application was made. The Tribunal is satisfied on the evidence before it that this position has the same 4-digit occupation unit group code as the occupation carried out by Mr Murray as the holder of the Subclass 457 (Temporary Work (Skilled)) visa.

1. The application was made using the department’s online form. It included the written certification pertaining to s.245AR(1). It identified the relevant person and occupation. As the Department processed the application, the Tribunal is satisfied that the prescribed fee was paid.

1. Given the above findings, the requirement in r.5.19(3)(a) is met.

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

1. 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.

1. The applicant submitted information extracted from ASIC dated 1 September 2020 that shows the company was registered on 4 December 2009 as G4A3 Pty Ltd ACN 140 957 795 and is currently active. An Australian Business Register that was submitted to the Tribunal shows that the business’ trading name is GWM Developments.

1. Financial statements and tax returns for 2017/18 and 2018/19 financial years were submitted to the tribunal. Business Activity Statements for July 19 to June 2020 were also submitted.

1. According to the delegate, the nominee has been employed in the nominated position as the holder of a 457 visa since 30 December 2013. The Tribunal is satisfied on the evidence before it that the nominee is, or was, the standard business sponsor who last identified the holder of the Subclass 457 in a nomination made under s.140GB.

1. There was no evidence before the Tribunal that the applicant was granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i) or of the nominator having any involvement in the operation of an overseas business.

1. Given the above, the Tribunal is satisfied the requirement in r.5.19(3)(b) is met.

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

1. 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.

1. The applicant submitted to the Tribunal documents including payment summaries and statements of annual earnings as well as an employment contract dated 1 November 2013.

1. Mr Murray was sponsored by G4A3 Pty Ltd under the Subclass 457 visa program and was granted his subclass 457 visa on 30 December 2013, which was cancelled on 30 December 2017. In this period he was employed continuously in his nominated occupation of Metal Fabricator with G4A3 Pty Ltd. The employment throughout the duration of his Subclass 457 (Temporary Work (Skilled)) visa was full-time and undertaken in Australia. The Tribunal accepts on the evidence before it that the requirements under 5.19(3)(c)(i) are met in that Mr Murray has been employed in the nominated occupation for at least three years of the three years preceding the nomination application.

1. 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)

1. 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.

1. The applicant provided a statement stating that the business is well placed to continue to support the nominee and has the financial capacity to employ the nominee for the next two years and beyond.. Should cash shortfalls occur, the applicant is able to draw financial supports form other related businesses. In addition the business has recovered well from the impact of COVID-19 and there continues to be a growing demand for work. A number of letters and correspondence was provided to the Tribunal to demonstrate the volume of current and upcoming projects to indicate expected sufficient work to enable the business to continue operations into the future.

1. The applicant also provided a 12 month cash flow prepared by their accountant to demonstrate that based on their projections, they will generate sufficient cash flow to pay for expenses.

1. Whilst the profits generated in the past are rather slim, the Tribunal notes that the business is basically funding only the nominee as an employee.

1. The applicant submitted full time employment contracts dated 16 October 2017 and 1 November 2013. For the most recent contract, the salary is at a rate of $53,900 plus superannuation of 9.5%.

1. There was nothing in either contract that expressly precluded the possibility of an extension.

1. The Tribunal notes that the nominee has been employed by the business on a full time basis for more than four years after the nomination was lodged and for at least three years prior to the application. The business has paid the nominee in recent years and it is reasonable to assume it will do so into the future.

1. 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)

1. 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.

1. The applicant provided the Tribunal with documentation that demonstrated similar roles advertised in October 2020 had a salary range of $40,000 to $60,000.

1. According to payscale.com, as at March 2021, the average salary for a metal fabricator is

   $56,530 for which a salary of $53,900 in addition to superannuation is acceptable.

1. The Tribunal researched the current salaries offered for similar positions at the same location and had regard to the salary determination evidence provided by the applicant. The remuneration appears to fall within the salary range of similar positions. The Tribunal is satisfied that the proposed salary for the nominee of $53,900 in addition to superannuation is consistent with the low end of the range of salaries for the nominated position in that location but nevertheless within the range offered.

1. For the sake of completeness, the Tribunal also notes that some of the nominee’s salary is paid as salary sacrifice. According to the accountant letter provide by the applicant, dated 27 January 2021, the allowances such as for telephone, rent and motor vehicle are paid as part of the nominee’s wages and shown on his PAYG summary.

1. 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 that those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

1. Accordingly, the requirement in r.5.19(3)(e) is met.

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

1. 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.

1. The applicant provided the Tribunal with a letter from the department stating that the applicant was approved as a standard business sponsor on 15 October 2020 to 15 October 2025.

1. On 18 March 2018, regs 2.59(d) and (e) were repealed by the Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018. The implications of these legislative changes were that for standard business sponsorship approvals made on or after 18 March 2018, there would not have been any training obligations nor commitments made for the purpose of satisfying the sponsorship approval criteria. In these circumstances, for the purposes of considering reg 5.19(3)(f), the Tribunal finds there were no relevant commitments or obligations and as such finds the training requirements are considered to have been 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.

1. There was no evidence before the Tribunal of any adverse information concerning the nominator or a person associated with the nominator.

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

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

1. There was no evidence before the Tribunal of anything other than a satisfactory record of compliance with the laws of Commonwealth and the state of Western Australia, which is where the applicant operates the business and employs people, in relation to workplace relations.

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

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

1. 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.

1. The submissions by the applicant included that the position of metal fabricator is central to the business.

1. The applicant submitted that the nominee has been employed since 2013 and is absolutely fundamental to the business. The nominee has a great understanding of the industry and the majority of the clients of the business choose the business because they are aware of the nominees work and exceptional craftsmanship.

1. In addition, the applicant advised that it is difficult to find metal fabricators and is intending to hire a suitable trainee from the local pool of trainees to assist in business expansion. to employ an apprentice. The applicant provided photographic evidence of the work undertaken by the nominee in support of this submission as well as letters of support.

1. Based on the evidence before it, the Tribunal is satisfied that there is a genuine need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominator’s direct control.

1. Accordingly, the requirement in r.5.19(3)(i) is met.

1. 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

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

Joanne Bakas Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval 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.