GYRO AUSTRALIA (Migration)

[2019] AATA 2900

GYRO AUSTRALIA (Migration) [2019] AATA 2900 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GYRO AUSTRALIA

CASE NUMBER:  1618878

DIBP REFERENCE(S):  BCC2016/1532498

MEMBER:Karen McNamara

DATE:23 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 May 2019 at 11:13am

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – regional Australia – Surveying or Spatial Science Technician – Difficulties attracting and retaining suitably qualified and experienced employees – remote location – genuine need for position under nominator’s direct control – employment minimum of two years – evidence of financial capacity provided – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 5.19
Workplace Relations Act 1996 (Cth)

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 10 November 2016 to reject the application by Gyro Australia Pty Ltd (the applicant) 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 22 April 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).

3. In this case, the applicant has applied for approval of a nomination, 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) as the applicant did not provide documentary evidence in support of their application.

   Background

5. The applicant lodged an application for an employer nomination approval, for the position of Surveying or Spatial Science Technician (ANZSCO 312116) under the Employer Nomination Scheme –visa subclass 186 - Direct Entry stream. The proposed salary is $63,000 plus superannuation.

6. When considering the application the delegate took into consideration that the applicant had not provided supporting documentary evidence with the application As a result the delegate found that the applicant failed to satisfy regulations 5.19 (4)( c),(d), (e) and (h). Therefore the nomination did not meet r.5.19(4).

7. The applicant applied to the Tribunal on 10 November 2016 for review of the delegate’s decision.

8. The Tribunal notes that the nomination application was made under the Employer Nomination Scheme –visa subclass 186 - Direct Entry stream. However the evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Kalgoorlie, postcode 6430, which is a postcode specified in the relevant instrument as being in regional Australia.

9. On 6 March 2019, the Tribunal wrote to the applicant via their authorised representative bringing to their attention that the nomination application dated 22 April 2016 was made under the Employer Nomination Scheme Direct Entry Stream - visa subclass 186 which is non-regional. The applicant was advised for the nominee to succeed in his review, the Tribunal must be satisfied there is an employer nomination approved under the relevant stream.  The Tribunal noted that evidence accompanying the review application addressed regulation 5.19(4)(h)(ii), however the Tribunal had formed the preliminary view the relevant alternate criteria under 5.19(4)(h)(i) is the relevant provision in this case. Accordingly the Tribunal invited the applicant to make a submission and provide evidence in support of regulation 5.19(4)(h)(i).

10. On 12 March 2019, the Tribunal received advice from the applicant’s representative that the applicant when making the application erred and that nomination was intended to be made under the RMS Direct Entry Stream – visa subclass 187.

11. Mr James Buchanan appeared before the Tribunal, on behalf of the applicant by video conference on 14 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee Mr Scott Browne via telephone from Ireland.  

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

13. 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

14. 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.

15. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant.  While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

16. At the commencement of the hearing, the Tribunal advised the applicant that the Tribunal had considered the applicant’s submission in regard to considering the nomination application under r. 5(19)(4)(h)(ii) and that should the Tribunal form the view that it could consider the nomination application under r. 5(19)(4)(h)(ii), the applicant be aware that if the nomination met the requirements for a subclass 187 nomination, this would have consequences for the associated visa applicant, Mr Scott James Browne.

17. The Tribunal told the applicant that it was important that he understood that the nomination application is for a position and not a person and that if the Tribunal found that the application met the requirements of r. 5(19)(4)(h)(ii), this criteria does not fall within the criteria of  cl.186.233, hence the Tribunal may form the view that the associated visa application by Mr Scott James Browne would not meet the requirements of  cl.186.233 and as a result the Tribunal would affirm Mr Browne’s visa application.

18. The applicant told the Tribunal that he wished the application to be considered under the provisions of the RMS Direct Entry Stream – visa subclass 187.

19. The Tribunal has formed the view based on the evidence before it, that the nomination be considered under the provisions of the RMS Direct Entry Stream – visa subclass 187 stream.  Accordingly the Tribunal has considered the following:

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

20. 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.

21. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The Tribunal notes that the application was lodged on 22 April 2016 under the Employer Nomination Scheme Direct Entry stream – visa subclass 186 and was accompanied by the prescribed fee for applications made under the 186 Direct Entry stream. The application also includes a written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly the requirements of r.5.19(4)(a)(i) are met.

22. In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Messrs Buchannan and Browne.

23. The Tribunal accepts on the evidence before it that the nominator operates a directional and geophysical surveying and drilling business in Kalgoorlie Western Australia. In the 2018 financial year the business reported total income of $2,199,240, net assets of $751,732, net profit $126,768 and a total salary and wage expense of $813,679.  

24. ASIC records provided by the applicant to the Tribunal show that the business was registered on 24 March 2010.

25. Mr Buchannan told the Tribunal that he has owned the business since 2010. The org chart provided to the Tribunal 23 January 2019 indicates the business employs 15 staff including the Managing Director, Mr Buchannan. 

26. The applicant told the Tribunal of his frustration in attracting and retaining suitable and experienced staff due to the remoteness of the work. Mr Buchannan told the Tribunal that he has attempted to source suitably experienced Australian citizens and permanent residents for the position and has advertised the position on numerous occasions.  Due to the remoteness of the location, Mr Buchannan told the Tribunal that he has experienced problems in attracting and retaining suitably qualified and experienced employees.

27. On the totality of evidence before it, the Tribunal is satisfied that the application has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement in r.5.19(4)(a) (ii) are met.

28. As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

29. Regulation 5.19(4)(b) requires the applicant is actively, lawfully and directly operating a business in Australia.

30. Based on the material provided to the Tribunal, including, financial statements, Business Activity Statements, ASIC Company details, payroll advice and evidence from   Mr Buchannan about the operations of the business, the Tribunal is satisfied the applicant is actively and lawfully operating a directional and geophysical surveying and drilling business in Australia and directly operates that business.

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

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

32. 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. 

33. There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.

34. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

35. 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. 

36. The Tribunal has had regard to the contract for employment for the nominee dated January 2019. The contract, which sets out the terms and conditions of employment, indicate that the period of employment is a minimum of two years. At the hearing, the applicant advised the Tribunal that the nominee was not currently working for the applicant and that he had ceased working for the applicant in September 2017 to return to Ireland.

37. The contract stipulates the base salary is $63,000 per annum based on working a minimum of 25 days per month. Additional rates for office/field and underground-based work and overtime are stipulated in the contract. The nominee is to be paid 9.5% superannuation. Leave entitlements are in accordance with those stipulated by the Workplace Relations Act 1996 (Cth). There is no term excluding an extension of the contract. The Tribunal has had regard to the business’ financial documentation and ATO BAS statements and Mr Browne’s ATO Notices of Assessment, payslips and bank statements for the period he was employed by the applicant. Based on this material, the Tribunal is satisfied that the applicant demonstrated the financial capacity to employ a person on a full time basis in the position for two years. Accordingly, the requirement in r.5.19(4)(d)(i) is met.

38. The Tribunal is also satisfied based on the employment contract and other material before it, that an employee 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. Whilst the contract does not stipulate the positon is full time, evidence before the Tribunal including payslips, payroll records and reference within the contract of employment as to the remuneration based on a minimum of 25 days worked per month, infers the position is full time. Accordingly, the requirement in r.5.19(4)(ii) is met.

39. As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.

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

40. 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.

41. The contract of employment dated January 2019 sets out the terms and conditions of employment and indicates that the nominee’s salary is $63,000 per annum excluding superannuation. The Tribunal has received payslips and bank statements confirming that   for the period of his employment with the applicant, Mr Browne was paid a base salary $63,000 per annum. The Tribunal is satisfied the nominee was paid in accordance with the terms of employment.

42. The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the 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. 

43. Accordingly the requirements of r.5.19(4)(e) are met.

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

44. 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. 

45. There is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.

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

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

47. 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.

48. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.

49. 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)

50. 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 in an 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.

51. In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;

52. The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Kalgoorlie, Western Australia postcode 6430 which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.

53. The Tribunal next considered whether there is a genuine need for the applicant to employ a Surveying or Spatial Science Technician and for the tasks of that position. The evidence before the Tribunal indicates the applicant is the owner of a directional and geophysical surveying and drilling business in Kalgoorlie Western Australia. The business reported total income for the 2017/18 financial year of $2,199,240 with net assets of $751,732, net profit of $126,768 and total salary and wage expense $813,679.  The applicant gave evidence at the hearing that the business is experiencing growth with the mining sector in Western Australia started to see growth again.  Financial information before the Tribunal confirms the business has experienced growth in revenue. The applicant also provided material indicating the business’s client list.

54. The Job description and evidence of the tasks associated with the position provided by the applicant and nominee at the hearing correspond to the tasks associated with the occupation of Surveying or Spatial Science Technician (ANSZCO 312116).

55. The nominee, Mr Browne worked with the applicant for approximately four years prior to leaving the position in September 2017 to return to Ireland. The Tribunal has considered evidence supporting the nominee’s suitability in so far as his experience and qualifications for the position. The Tribunal has sighted Mr Browne’s tertiary qualifications and academic transcripts, which confirm that he holds a Bachelor of Science Degree with honours from Glasgow University, Scotland.

56. The Tribunal has considered the evidence attesting to Mr Browne’s experience and is satisfied that Mr Browne carried out the tasks associated with the occupation of Surveying or Spatial Science Technician (ANSZCO 312116) and is suitably qualified for the position.  The applicant told the Tribunal that he would reemploy Mr Browne, in the event Mr Browne wished to return to the positon.

57. The Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Surveying or Spatial Science Technician (ANSZCO 312116) under the nominator’s control. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph. Furthermore, the Tribunal is satisfied that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly the requirements of r.5.19(4)(h)(ii) (B) and (D) and (DA) are met.

58. The Tribunal is satisfied that the material and evidence provided supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or permanent resident. The applicant provided evidence that he has been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the positon. The applicant provided evidence of advertising the position through job advertisements and being unable to source qualified and experienced applicants.  The applicant advised the Tribunal that due to the remoteness of Kalgoorlie it is difficult to attract and retain qualified and experienced employees, particularly those willing to work night shift.

1. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.

2. The Tribunal has cited the completed Form 1404 dated 22 June 2016 from the relevant RCB, Regional Development Australia, Goldfields Esperance, indicating that they are satisfied regarding the matters specified in paragraph (e) and sub subparagraphs (B) and (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.

3. Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.

   Conclusion

4. 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

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

   Karen McNamara
   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).