Gamma Allergy Pty Ltd (Migration)

[2021] AATA 2793

Gamma Allergy Pty Ltd (Migration) [2021] AATA 2793 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gamma Allergy Pty Ltd (now Gamma Biomedical Pty Ltd ACN 601 594 521) 

CASE NUMBER:  1819056

HOME AFFAIRS REFERENCE(S):          BCC2017/3435412

MEMBER:K. Chapman

DATE:9 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 09 June 2021 at 6:58pm 

CATCHWORDS

MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Sales and Marketing Manager – biomedical science – provision of allergy related immunotherapy – training commitments and obligations – 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 9 June 2018 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, Gamma Allergy Pty Ltd (now Gamma Biomedical Pty Ltd ACN 601 594 521), applied for approval on 20 September 2017. The applicant nominated Mr Daniel Tyshynski (‘the nominee’) in the occupation of Sales and Marketing Manager, which is coded as number 131112 in the Australian and New Zealand Standard Classification of Occupations (‘ANZSCO’). The applicant operates in the field of biomedical science. Its present commercial activities involve the provision of allergy related immunotherapy, and associated products, to medical practitioners. The applicant has achieved significant commercial success since its establishment and is a growing source of employment for Australians in the biomedical field.

3. 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 matter, 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, due to a lack of satisfaction that the applicant fulfilled its commitments and obligations in relation to training requirements, during the period of its most recent approval as a standard business sponsor. On 29 June 2018, the applicant applied to the Tribunal for review of the nomination decision, providing a copy of that decision with their application for review.

5. On 20 November 2020, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.5.19 of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, ASIC records, financial statements, taxation records, an employment contract pertaining to the nominee, market salary information, position description, organisational chart, marketing material, standard business sponsorship approval and commercial information. The Tribunal notes that it has far greater relevant documentary evidence before it than was available to the delegate. All material received has been duly considered by the Tribunal.

6. The applicant, through its Managing Director Mr Andrew Antonopoulos, appeared by telephone before the Tribunal on 18 May 2021 to give evidence and present arguments. Mr Antonopoulos, on behalf of the applicant, confirmed that he was comfortable participating in the hearing by telephone. The Tribunal also took evidence from the nominee, Mr Daniel Tyshynski. The Tribunal notes that both gentlemen provided their evidence in a direct and engaging fashion. The Tribunal has no hesitation in finding that they provided truthful evidence on behalf of the applicant and accordingly it is afforded high weight. The applicant was represented in relation to the review by their 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.

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

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

10. The applicant lodged an online application for the Temporary Residence Transition nomination stream. The nominated position is for a Sales and Marketing Manager (ANZSCO 131112). Having regard to the evidence, the Tribunal is satisfied that the application was made on the approved form, accompanied by the prescribed fee and included written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act.

11. The application for nomination identifies Mr Daniel Tyshynski (‘the nominee’) who held a Subclass 457 visa that was granted on the basis of satisfying subclause 457.223(4) of Schedule 2 to the Regulations. Having regard to the submitted evidence, the Tribunal is satisfied 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 accordingly satisfied that this occupation carries the same relevant 4-digit code as the occupation carried out by the nominee whilst he held the Subclass 457 visa. Further, the applicant identified a need to employ the nominee, as a paid employee, to work in the position under their direct control.

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

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

13. 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.

14. The applicant, through its Managing Director Mr Antonopoulos, outlined the commercial operations of its biomedical business. Primarily the applicant provides immunotherapy products, related to allergies, to medical practitioners. These include subcutaneous injections and sublingual products pertaining to various allergens, in addition to relevant consumable items such as test kits. The applicant provides these products to medical practitioners, who in turn use them to treat patient allergies. Over time, the applicant has created more products pertaining to a diverse array of allergens. The applicant company has changed its name on three occasions and is now called Gamma Biomedical Pty Ltd. It has retained the same Australian Company Number (ACN 601 594 521) throughout.

15. Mr Antonopoulos informed the Tribunal that the nominee, Mr Tyshynski, was involved at the inception of the business. According to Mr Antonopoulos, the nominee brought significant relevant marketing experience to the company, having previously worked in the biomedical field in Canada. In March 2015, the nominee was granted a Subclass 457 visa under the sponsorship of the applicant. The nominee has been in full time employment with the applicant since that time.

16. Having regard to the documentary evidence including financial records, taxation returns and ASIC records, in conjunction with the evidence of Mr Antonopoulos at hearing on behalf of the applicant, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia. Further, the Tribunal is satisfied that the applicant is the relevant standard business sponsor who last identified the nominee, being a Subclass 457 visa holder, in a prior relevant nomination in relation to that visa.

17. Given the above, the requirement in r.5.19(3)(b) is met.

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

18. 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 he or she 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.

19. The nominee, Mr Tyshynski, was granted a Subclass 457 visa in March 2015 in the nominated occupation of Sales and Marketing Manager (ANZSCO 131112). Mr Antonopoulos outlined the duties of the nominee in comprehensive detail and in a manner consistent with the ANZSCO description for the occupation of Sales and Marketing Manager. The nominee also gave evidence to the Tribunal at hearing outlining his duties in a manner consistent with the evidence of Mr Antonopoulos. In addition, Mr Antonopoulos explained that the nominee has worked for the applicant on a full time basis for over six years, having obtained a Subclass 457 visa in March 2015 through their nomination. Mr Antonopoulos confirmed the nominee remains employed by the applicant on a full time basis.

20. Mr Antonopoulos informed the Tribunal that the nominee is a critical staff member, whom the applicant seeks to retain on a full time basis. He outlined that the nominee is responsible for marketing the applicant’s biomedical products to medical practitioners, creating marketing procedures and managing its web based portal to interface with their professional client base. Mr Antonopoulos indicated that the nominee has the necessary scientific and marketing skills, in order to appropriately interact with medical practitioners with respect to their immunotherapy products.    

21. The applicant submitted documentation including relevant taxation records, marketing samples, financial records and the Subclass 457 nomination approval decision of March 2015 pertaining to the nominee. This documentation, supported by the evidence of Mr Antonopoulos at hearing, confirms that the nominee has been employed on a full time basis by the applicant since March 2015 and for the validity of his Subclass 457 visa.

22. Following careful consideration of the evidence, the Tribunal is satisfied that the nominee was employed for at least a two year period within the three year time frame which is referred to in the Regulations.

23. Given the above, the Tribunal finds that the requirement in r.5.19(3)(c) is met.

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

24. 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 two years on terms that do not expressly preclude the possibility of an extension.

25. The applicant submitted a copy of the employment contract pertaining to the nominee offering him remuneration of $75,000 per annum, business financial statements and taxation records. Additionally, Mr Antonopoulos gave evidence at hearing confirming that he wishes to retain the services of the nominee in the long term, given his outstanding skillset. Mr Antonopoulos also outlined that the applicant’s turnover in the current financial year was expected to exceed $2.5 million. He explained that the COVID-19 pandemic had caused some issues for the applicant, however that situation was now resolved. Submitted financial records confirm that in the Financial Year 2019/20, the applicant’s turnover exceeded $1.1 million.

26. Having regard to the submitted evidence, the Tribunal is satisfied that the nominee will be employed on a full time basis for at least two years on terms that do not expressly preclude the possibility of an extension. Additionally, having considered the submitted financial records, the Tribunal is satisfied that the applicant has the financial capacity to pay the full time salary for the nominated position for at least two years. The Tribunal notes that the nominee has been employed by the applicant continuously, on a full time basis, for over six years.

27. 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)

28. 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.

29. The applicant submitted an employment contract providing the nominee with a base annual salary of $75,000 and prior taxation records pertaining to him. Additionally, the applicant submitted market salary information for the occupation of Sales and Marketing Manager (ANZSCO 131112).

30. Following careful consideration of the evidence, the Tribunal is satisfied 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. Accordingly, the requirement in r.5.19(3)(e) is met.

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

32. 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.

33. The applicant submitted a copy of their Sponsorship Approval Notice confirming they are an approved standard business sponsor for the period 1 November 2018 to 1 November 2023. There are no training commitments and obligations relevant to this sponsorship period under the prevailing legislative provisions. On balance, the Tribunal regards the requirements pertaining to training to be satisfied.

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

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

35. 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.

36. There is no evidence of adverse information contained in the Department file, or before the Tribunal, about the applicant (‘the nominator’) or a person associated with the applicant.

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

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

38. 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.

39. There is no evidence before the Tribunal suggestive of the applicant not having a satisfactory record of compliance with Commonwealth or State workplace relations laws.

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

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

41. 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.

42. The Tribunal finds that the submitted evidence confirms the nominee is employed in the occupation of Sales and Marketing Manager (ANZSCO 131112) on a full time basis by the applicant. It is apparent that the nominee performs the full suite of duties associated with that of a Sales and Marketing Manager (ANZSCO 131112) as defined in ANZSCO and that he will remain a valued employee of the applicant into the foreseeable future. Further, the Tribunal is satisfied that the nominee possesses sufficient training and practical experience to appropriately perform the nominated occupation. Of note, the nominee also possesses tertiary qualifications focused on biomedical ethics and business law. Additionally, he has extensive experience in marketing roles, including with respect to the biomedical industry in both Canada and Australia.

43. The Tribunal is satisfied that the position associated with the nominated occupation is in fact that of a Sales and Marketing Manager (ANZSCO 131112). Mr Antonopoulos outlined to the Tribunal the critical importance of continuing the employment of the nominee, given his advanced skillset, marketing acumen and strategic contribution to the applicant. Furthermore, Mr Antonopoulos explained that the growth in the applicant’s turnover was largely due to the nominee’s ability to engage appropriately with medical practitioners and enhance market share. This growth has enabled the applicant to employ more Australian citizen staff, including a General Manager, Logistics Officer and an Administrative Assistant. Additional Australian citizen contractors are also engaged by the applicant and further direct recruitment of Australian citizens is planned for the near future.

44. Of note, the applicant is also planning to establish a manufacturing facility in Australia, in order to grow its business through vertical integration. Mr Antonopoulos emphasised that the future growth of the applicant’s business requires the continued services of the nominee. The Tribunal accepts this evidence and finds there is a genuine need for the applicant to employ the nominee, as a paid employee, under its direct control.

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

    CONCLUSION

46. 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

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

    K. Chapman
    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.