GMSC PTY LTD ATF LAURUS HOLDINGS TRUST (Migration)

[2019] AATA 4326

GMSC PTY LTD ATF LAURUS HOLDINGS TRUST (Migration) [2019] AATA 4326 (10 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GMSC PTY LTD ATF LAURUS HOLDINGS TRUST

CASE NUMBER:  1716115

DIBP REFERENCE(S):  BCC2017/681427

MEMBER:Andrew McLean Williams

DATE:10 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 10 July 2019 at 12:00pm

CATCHWORDS
MIGRATION – nomination – Direct Entry stream – real estate agent – substantial evidence provided – need for employee under nominator’s direct control – tasks of position consistent with ANZSCO – terms and conditions equivalent to Australian citizen or permanent resident performing same work at same location – employment for 2 years full-time – employment extension not precluded – financial capacity to maintain salary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 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 Immigration on 12 July 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’).

2. The applicant, GMSC Pty Ltd (as trustee for the Laurus Holdings Trust, trading as ‘Ray White Annerley’) applied to the Minister for approval of the nomination of a position in Australia for a real estate agent (ANZSCO category 612114), on 20 February 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 seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because the application lodged by the nominator on 20 February 2017 had not been accompanied by any supporting evidence, and none was subsequently lodged by the applicant with the department, prior to the delegate making the refusal decision. In light of the refusal an application for review was subsequently filed in the Tribunal on 25 July 2017.

5. The applicant appeared before the Tribunal on 28 May 2019 to give evidence and make submissions. The Tribunal also received oral evidence from Mr Geoff Sellars, one of the Directors of the applicant, and from the visa applicant, Ms Nathalie Rigmor Margareta Martinsson.  

6. The applicant was represented in relation to the review by its registered migration agent, Mr Nilesh Nandan of ‘MyVisa Immigration Law Advisory’. Mr Nandan attended the Tribunal hearing with the applicant and prepared comprehensive written submissions that were delivered to the Tribunal, prior to the hearing.  None of the evidence received by the Tribunal by means of oral and written submissions had been available to the delegate at the time of making the original refusal decision.  The new information puts a different complexion on matters.

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 Direct Entry nomination stream, as is set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all of the requirements set out in r.5.19(4) must be met.

   The application is compliant: r.5.19(4)(a)

9. Regulation 5.19(4)(a) stipulates 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.

10. The application for approval was lodged by the applicant (as the nominator) by means of the Department of Immigration and Border Protection (now Department of Home Affairs) online portal. Having regard to documentation within the file of the Department, the Tribunal is satisfied that the application was made in the manner required on the approved form, and that it was accompanied by the prescribed fee. The prescribed form includes the necessary written certification stating that the nominator has not engaged in conduct that contravenes s. 245AR(1) of the Migration Act 1958.

11. Regulation 5.19(4)(a) contains the further requirement that the applicant identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.  Although the original delegate was not satisfied that there was sufficient evidence to that end, any deficiency in the original evidence has since been rectified in the Applicant’s evidence before the Tribunal.  In particular, Mr Sellars’ oral evidence was that the business of the applicant cannot operate without agents to undertake the actual selling and marketing of real estate.  Mr Sellars also informed the Tribunal that Ms Martinsson had been employed by the applicant since 2014, and that she had since become one of the applicant’s higher performing sales agents, in circumstances where many others had been trialled yet had not similarly succeeded in the role. Mr Sellars also informed the Tribunal that Ms Martinsson contributes in a significant way to the overall commission revenue of the applicant and, were she not so employed, then some of the administrative staff employed by the applicant would have to be let go. Mr Sellars advised the Tribunal that Ms Martinsson reports to him as the applicant’s director of real estate sales and is under his direct control, albeit via some additional day-to-day supervision provided by a senior real estate sales consultant, who is also directly accountable to him as the director.  I am satisfied that this evidence establishes that the applicant, as the nominator, had a need to employ a paid employee to work in the nominated position.

12. Accordingly, the Tribunal concludes that 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)

13. Regulation 5.19(4)(b) requires that the applicant be actively, lawfully and directly operating a business in Australia. A company extract from ASIC reveals that the applicant was first registered on 27 May 2011. The Australian Business Register shows that the applicant conducts business under the trading name of Ray White Annerley. Financial records and real estate marketing materials submitted before the Tribunal shows the applicant to continue to be conducting business as a real estate agency in the Annerley locality. All of this evidence is accepted by the Tribunal as proof of the requirements stipulated in r.5.19(4)(b).

14. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

15. 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. In the instant case the applicant is a real estate agency and is not involved in any form of 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)

16. Regulation 5.19(4)(d) requires that the nominee be employed in the nominated position for at least 2 years on a full-time basis, and for the terms and conditions of that employment to not expressly exclude the possibility of an extension.  The Tribunal has had regard for Ms Martinsson’s employment contract, dated 24 May 2019.  Clause 3.2.1 and 3.4.1 therein indicates an offer of employment on a full-time basis for a minimum of two years, commencing upon the granting of a subclass 186 visa.  There is also nothing in the employment contract expressly precluding the possibility for Ms Martinsson’s on-going employment after the expiration of the initial two years.  The applicant’s financial information before the Tribunal shows that the applicant will have the financial means to continue to employ the applicant for a further two years.

17. Accordingly, the Tribunal finds that the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

18. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position 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.

19. The evidence before the Tribunal was that Ms Martinnson is paid the industry award base salary of $54,800, and so is an equivalent Australian citizen who is also employed alongside Ms Martinsson, as another real estate agent within Ray White at Annerley.  In addition to salary each of them are able to obtain further commission income, in accordance with the same formula.

20. Accordingly the Tribunal concludes that the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

21. Regulation 5.19(4)(f) requires that there be 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. 

22. There is no evidence before the Tribunal regarding adverse information known to Immigration about either the nominator or any person associated with the nominator

23. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

24. 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.

25. There is no evidence before the Tribunal that there has been any finding that the applicant does not have a satisfactory record of compliance with relevant workplace relations laws

26. Accordingly the Tribunal is satisfied that 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)

27. 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 (see legislative instrument IMMI 16/059), 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.

28. In this case r.5.19(4)(h)(i) is applicable. The tasks of the position will be performed in Australia and correspond to the tasks of a real estate agent, which is one of the occupations listed in instrument IMMI 16/059. That occupation is the relevant occupation applicable to Ms Martinsson as the person meeting the description in r.5.19(4)(a)(ii) and the applicant meets the training requirements specified in the relevant instrument (IMMI 13/030) which requires evidence of expenditure on training of at least 1% of the overall payroll. The evidence received before the Tribunal indicates that the applicant pays annual franchise fees to Ray White and that 10% of that franchise fee is directly attributable to training requirements as are imposed on the applicant by the head franchisor as a Ray White Real Estate franchisee. In addition to that centralised training, the applicant retains the services of other training providers to provide other forms of training relevant to its direct employees. In the 2018 financial year the combined expenditure on the provision of staff training across these two training sources amounted to $12,004.15. This sum exceeds 1% of the total payroll of the applicant for that financial year which was $1,047,411.70.

29. Accordingly the Tribunal finds that the requirements of r.5.19(4)(h) are met.

30. 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

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

    Andrew McLean Williams
    

    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.

    …

    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).