Get a Handle on it (Aust) P/L atf LAM unit trust (Migration)
[2018] AATA 5314
•31 October 2018
Get a Handle on it (Aust) P/L atf LAM unit trust (Migration) [2018] AATA 5314 (31 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Get a Handle on it (Aust) P/L atf LAM unit trust
CASE NUMBER: 1708990
DIBP REFERENCE(S): BCC2016/3024899
MEMBER:Cathrine Burnett-Wake
DATE:31 October 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 31 October 2018 at 12:04pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Cabinetmaker – Training Benchmark requirements – apprenticeship deeds and payroll information – exceeded the required minimum spend of 1% of payroll on training Australian citizen and permanent resident employees – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 April 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 12 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(i)(B)(I) of the Regulations because they found that Training Benchmark requirements were not met.
On 22 October 2018, the Tribunal received a letter from Mr Luke Murphy the Managing Director of Get a Handle on it (Aust) P/L atf LAM unit trust , explaining that he was not able to attend the hearing in-person due to a medical condition, however, he would be available on the telephone if required. In his letter, he explained that Mrs Vivian Murphy his office manager would be attending in his place, along with his accountant Mr Rod Fey. The Tribunal accepted Mr Murphy’s reasons for not being able to physically attend the hearing.
On 24 October 2018, Mrs Vivian Murphy and Mr Rod Fey attended the hearing to give evidence and present arguments on his behalf of the applicant. The Tribunal also received oral evidence from the associated nominee, Mr Daniel Dumpleton.
The applicant was represented in relation to the review by its registered migration agent, Ms Rebecca Henzel. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.
On the basis of the information in the Department of Immigration's (the 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.
The identified occupation in the application is Cabinetmaker (ANZSCO 394111).
At hearing, Mr Fey outlined that the business was a kitchen cabinet making business that was owned and operated by Mr Luke Murphy and had been in operation for 20 years. Mr Fey outlined that the business employed six people and had a turnover of over one million dollars. The evidence provided to the Tribunal supported Mr Fey’s claims.
Mr Fey outlined to the Tribunal that the business operated out of a factory in Hastings, where they built the custom kitchens. Mr Fey explained that over the years Mr Murphy had experienced difficulties attracting and retaining suitably qualified staff to work within the business. He further explained that the nominee had been working for the business for approximately 5 years, and he was an extremely valued and crucial to the ongoing success of the business. Mr Fey explained that the nominee was often the face of the business, as he was responsible for all installations as well as the supervision of staff and apprentices. He outlined that the breadth of experience and the level of skill displayed by the nominee ensured that jobs went smoothly. Mr Fey also explained to the Tribunal that if the nominee’s application were not to be successful the business would struggle to operate as is, and the likely result would be that it would have to lay off staff and drop from a six-person operation down to a two-person operation.
Mr Fey spoke in-depth about the business and was able to articulate with detail about the need to employ a paid employee in the role of Cabinetmaker under the nominator’s direct control. Mrs Murphy also provided evidence that the role was needed and was crucial to the ongoing success of the business.
The Tribunal is satisfied, based on Mr Fey and Mrs Murphy’s verbal evidence, along with the supporting information that there is an identified a need for the nominator to employ a paid employee to work in the position under their direct control.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. During the hearing, Mr Fey described the nature of the business and its operations in general. Mr Fey discussed in detail the work the company undertook and how, as the accountant for the business, he could attest that it was an actively and lawfully operating business in Australia
The Tribunal is satisfied on the basis of the material before it, including the business' registration documents, activity statements, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) is met
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
The nominator is not involved in labour hire activities.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(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.
The Tribunal has had regard to the employment contract between the parties. The contract confirms the nominee will be employed on a full-time basis for at least two years, and that his employment contract does not expressly exclude the possibility of extending the period of employment.
The Tribunal has had regard to the documents provided on review, including current financial statements and BAS. The Tribunal gives significant weight to Mr Fey’s evidence, as the applicant’s accountant, confirming its financial capacity to pay the nominee and that the company is financially sound.
On balance, the Tribunal is satisfied on the totality of the evidence that the nominator has the financial capacity to maintain the nominee's salary, including the fact that they have been paying the nominee for the last 5-years.
The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(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.
Evidence was provided to the Tribunal that since the nomination application, that the nominee has had a remuneration review, and that he is currently paid $30 per hour, equivalent of AUD 59,280 per annum. Submissions received from the representative outlined that there is no Australian performing equivalent work at the same location. However, that in determining the nominee’s salary the applicant used the relevant award, the Joiner and Building Trades Award 2010, together with salary surveys and remuneration information from reputable websites to determine the market rate for the nominee’s role. Salary survey evidence was submitted to support the market rate. Mr. Murphy also provided a written statement outlining how the salary was calculated.
Salary surveys and other salary data, including from Payscale.com and Jobsoutlook.gov.au, indicate that the base salary for an Cabinetmaker, depending on experience, is between AUD36, 348 and AUD68, 772. The Tribunal is satisfied on the basis of this information that the nominee's base salary is within the appropriate range of that normally paid to a Cabinetmaker in Victoria.
The Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly the requirements of r.5.19(4)(e) are met
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) 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 Fair Work or any other government agency has taken action against the nominee in relation to workplace relation laws. As such, the Tribunal is satisfied that the nominee has satisfactorily complied with workplace relations laws.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister as per the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal has reviewed the position description provided as part of the application. At hearing, Mr Fey also described the duties the nominated position would entail. Based on the position description that was provided, and Mr Fey’s verbal evidence, the Tribunal is satisfied that the duties of the nominated position correspond with those listed within the relevant instrument for the occupation of Cabinetmaker.
Evidence was provided to the Tribunal of the company’s ability to meet training benchmark requirements. The company currently employs one apprentice, and in the previous financial year two apprentices were employed until one resigned. The evidence provided to the Tribunal; including apprenticeship deeds and payroll information, indicates that the salary of the apprentice(s) far exceeds the required minimum spend of 1% of payroll on training Australian citizen and permanent resident employees to meet the training benchmark requirements.
Accordingly the requirements of r.5.19(4)(h) are met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Cathrine Burnett-Wake
MemberATTACHMENT - 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.
…
Direct Entry nomination
(4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i) is actively and lawfully operating a business in Australia; and
(ii) directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i) the employee will be employed on a full-time basis in the position for at least 2 years;
(ii) the terms and conditions of the employee’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) 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
(g)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
(h)either:
(i) both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii) all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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