Ghazi Al Ali Architect Pty Ltd (Migration)

[2021] AATA 1380

Ghazi Al Ali Architect Pty Ltd (Migration) [2021] AATA 1380 (4 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ghazi Al Ali Architect Pty Ltd

CASE NUMBER:  1817736

HOME AFFAIRS REFERENCE(S):          BCC2017/2330785

MEMBER:Warren Stooke AM

DATE:4 May 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 04 May 2021 at 4:13pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – training requirements – evidence of expenditure on training during previous period as standard business sponsor – legislative amendment – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(3)(f)(i)
Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth), cl 7602

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 29 May 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).

2. The applicant applied for approval on 30 June 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).

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 for the position of Contract Administrator – ANZSCO Code: 511111.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because in the absence of any verifiable evidence before the delegate, the applicant did not meet sub-regulations 5.19(3)(f)(i) and the delegate was not satisfied 5.19(3)(f)(ii) is warranted in this case.

5. The applicant appeared before the Tribunal on 16 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Khaled Haymour, the nominee.  

6. The applicant confirmed to the Tribunal that a copy of the delegate’s decision was provided to the Tribunal with the application for review and the applicant stated that he understood the application for the grant of the visa was refused because Training Benchmark A or B were not met.

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

8. 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

9. 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.

10. The applicant provided evidence that Ghazi Al Ali Architect Pty Ltd was registered with ASIC on 6 December 2013 and was assigned an ABN 67 167 131 84.

11. The applicant stated that the business provides architectural services predominantly to local councils concerning project architecture and that the position of the nominee is to prepare and negotiate contracts and manage budgets and timelines.

12. The applicant provided evidence that the business was an approved standard business sponsor under the 457 visa program for the period from 27 July 2015 to 27 July 2020.

13. The applicant provided the Tribunal with a contract of employment dated 5 June 2017, with a salary of $60,000, plus 9.5 per cent contributed to a superannuation fund and subject to the grant of a 186 Visa.

14. The applicant provided evidence concerning the profitability, which had a Total Income of $2,311,565 and Total Expenditure of $2,013,975 in 2018 and Total Income of $1,735,843 and Total Expenditure of $1,591,271 in 2019. As such, the Profit for the business for 2018 and 2019 was $297,590 and $146,793, respectively.

    Evidence of Witness – Khaled Haymour (Nominee)

15. The witness confirmed to the Tribunal that he had worked for the business on a 457 visa prior to his application for a 186 visa and that he currently held a Bridging visa A that was issued on 30 June 2017 and provided permission to work and study but did not permit travel.

16. The applicant confirmed to the Tribunal that he obtained a Bachelor of Accounting from the Philadelphia University in Jordan, in 2002; a Diploma of Accounting from the South Western Sydney Institute in December 2016 and a Bachelor of Science, Business and Technology in Management Information Systems from ABU Dawwas.

17. The witness provided evidence that he commenced with the business, as a Contract Administrator, on 1 December 2013.

18. The Tribunal was provided with evidence that the witness undertook an IELTS English language course on 10 January 2015 and obtained an overall score of 6.0.

19. The witness provided evidence that his gross income for the position of Contract Administrator was $61,999 in 2018; $64,199 in 2019 and $56,052 in 2020 (Covid 19 effected).

    Submission by Representative

20. The Representative provided detailed submissions to support approval of the application and addressed matters pertaining to the identified issue of the obligation to provide training to Australian citizens and permanent residents, including the following, summarised points:

    a.Given that the most recent approval as a standard business sponsor from 29 May 2020 to 29 May 2025, there is no obligation for Ghazi Al Ali to meet the 1.0 % training benchmark commitments in every year as this obligation ended on 12 August 2018;

    b.The Applicant had no obligations under Division 2.19 relating to training requirements as the most recent approval as a standard business sponsor is between 29 May 2020 to 29 May 2025 and the obligation to meet training benchmark commitments ended on 12 August 2018. In the alternative, if the Tribunal does not accept this submission, then the applicant submits Ghazi Al Ali complied with the applicable obligations under Division 2.19 relating to its training requirements during the period of its previous approval as a standard business sponsor;

    c.Regulation 5.19(3)(f) requires that Ghazi Al Ali meet training requirements during the period of the most recent approval as a standard business sponsor. The language in regulation 5. l 9(3)(f) creates a present and ongoing obligation relating to the most recent period of approval;

    d.To qualify for the Board of Architects Registration in NSW, graduate architects are required to accumulate a minimum of 3300 hours (2 years') work experience. Ghazi Al Ali employs students in internship positions and, if the student proves to be the right candidate, they offer them a full-time job. It was submitted, as instructed, that all interns are training in ArchiCAD software. Ghazi Al Ali usually interviews and employs graduates in their last year of their degree and if the right candidate has ArchiCAD and is capable of design work, the company will offer them a fulltime job with registration with the Board of Architects. It was submitted, as instructed, that the Board of Architects Registration in NSW accepts the training undertaken at Ghazi Al Ali as meeting the Board's requirements for Architect registration.

21. The applicant submitted detailed records of expenditure relating to the training of Australian citizens, which was also summaries by the Representative and included the following:

Period	Training Expenditure	Total Payroll	Payroll Percentage
27.7.15 to 26.7.16	$31,140.00	$909,359.00	3.40 per cent
27.7.16 to 26.7.17	$25,612.40	$1,333,918.26	1.92 per cent
27.7.17 to 26.7.18	$58,017.35	$1,137,351.99	5.10 per cent

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 need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

2. The applicant lodged the most recent application to nominate the nominee for the position of Contract Administrator – ANZSCO Code: 51111 with the business on 30 June 2017 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).

3. The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.

4. Further, the Tribunal is satisfied that the business is profitable and has contracts with predominantly local Councils to provide project architectural services that ensures the viable ongoing performance of the business. In this regard, the Tribunal accepts that the company employs a combination of local and residential visa holders, the registered business has employed the nominee to provide contract services for the business and has demonstrated it is able to meet its employment obligations for the next two years, from the grant of a visa, as has been evidenced since 1 December 2013.

5. The Tribunal accepts that the business can meet its financial obligations and employ the nominee in the position of Contract Administrator – ANZSCO Code: 511111.

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

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

7. 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.

8. The Tribunal is satisfied that the applicant has been the sponsor of the nominee, whilst a 457 visa holder, from 27 July 2015 and has complied with the requisite obligations pertaining to sponsorship.

9. Further, the Tribunal is satisfied that Ghazi Al Ali Architect Pty Ltd business was registered with ASIC on 6 December 2013 with an assigned ABN: 67 167 131 848 and that there is no evidence before the Tribunal that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

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

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

11. 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.

12. The evidence before the Tribunal is that the nominee was continuously employed by the applicant from 1 December 2013 and from 27 July 2015 on a 457 visa, which was prior to application for a 186 Temporary Residential Transition Entry Stream visa of 30 June 2017. In this regard, the employment has continued subsequent to the delegate’s decision of 29 May 2018 and the contract of employment will apply from the date of the grant of a 186 visa, which provides employment for a period that exceeds 2 years.

13. 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)

14. 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.

15. The applicant provided the Tribunal with evidence that the nominee has a contract of employment that commenced on 5 June 2017 and that the nominee has a contract of not less than 2 years, with an undertaking to employ the nominee for a minimum period of two years from the grant of the visa. In this regard, the evidence identified that the nominee will be paid a salary of $60,000 per annum and will be paid 9.5 per cent superannuation for the position of Contract Administrator.

16. 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)

17. 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.

18. The Tribunal is satisfied that the terms and conditions of employment are no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

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

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

20. 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.

21. The Tribunal notes that since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. The Tribunal notes that the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) states at cl.7602- Operation of amendments that “...(5) A person is not required to comply with subregulation 2.87B(2) ... in relation to a period of 12 months ending on or after the commencement day.” The Tribunal notes that the commencement day set out in the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) is 12 August 2018. Accordingly, the Tribunal finds that the applicant was not required to meet training Benchmark A or training Benchmark B for the first year of its current standard business sponsorship approval from 29 May 2020 to 29 May 2025 and the obligation to meet training benchmark commitments ended on 12 August 2018.

22. As set out in paragraph 42 above, since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. Therefore, the applicant does not have an obligation to meet the training benchmarks in this current year of its most recent standard business sponsorship approval.

23. Further, the Tribunal accepts that given Ghazi Al Ali Architect Pty Ltd was most recently approved as a standard business sponsor on 29 May 2020 and was not required under the legislation in force, at that time, to either demonstrate it had met any specific training commitments or commit to meeting ongoing training obligations in connection with the approval of its sponsorship application, it is reasonable to disregard the requirements of Regulation 5.19(3)(f) as they were and accept that the applicant has met the training obligations.

24. In any event, the Tribunal is satisfied that the applicant had expended $31,140.00 (3.40 per cent); $25,612.40 (1.92 per cent) and $58,017.35 (5.10 per cent), which exceeded the minimum requirement under Benchmark B, which requires the equivalent of at least 1.0% of the payroll of the business, in the provision of training to employees of the business.

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

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

26. 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. 

27. The Tribunal is satisfied 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. 

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

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

29. 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.

30. The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 5 June 2017 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement. In this regard, the applicant stated that the nominee is paid a salary of $60,000 per annum and 9.5 per cent superannuation.

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

32. 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

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

    Warren Stooke AM
    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.