IBSG AUSTRALIA PTY LTD (Migration)

[2021] AATA 555

IBSG AUSTRALIA PTY LTD (Migration) [2021] AATA 555 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  IBSG AUSTRALIA PTY LTD

CASE NUMBER:  1807139

HOME AFFAIRS REFERENCE(S):          BCC2017/2083524

MEMBER:Cathrine Burnett-Wake

DATE:22 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 22 January 2021 at 5:25pm

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residents Transition Nomination stream – position of Telecommunications Network Engineer – evidence of meeting training obligations – actively and lawfully operating a business in Australia – employed on a full-time basis for at least 2 years – terms and conditions of employment – reasonable to disregard training requirement – decision under review set aside

LEGISLATION

Migration Act 1958, ss 245, 360
Migration Regulations 1994, Schedule 2 cl 457.223; rr 1.13, 2.59, 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 24 February 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 13 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.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i) because it was found the nominator did not met their training obligations for each of the years of their most recent Standard Business Sponsorship approval.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. The applicant was represented in relation to the review by its 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.

10. On the basis of the information in 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.

11. The application for approval identifies Balaji SURISETTI, the nominee who, according to Department records held a Subclass 457 visa from 25 July 2014 until 25 July 2018, that was granted on the basis of satisfying subclause 457.223(4) of Schedule 2.

12. It should also be noted that the applicant was subsequently granted a Subclass 482 visa to continue working with the nominator in the same occupation. This visa was granted on 29 March 2019 that is in effect until 29 March 2021.

13. The occupation identified in the application is Telecommunications Network Engineer (ANZSCO 263312). The Tribunal is satisfied, based on the employment documents for the nominee, that the occupation identified is the same occupation as that carried out by him as the holder of a Subclass 457 visa, and continues to do so as the holder of a Subclass 482 visa. The Tribunal is accordingly satisfied that this occupation carries the same 4-digit code (2633) as the occupation carried out by the nominee whilst he held the Subclass 457 visas.

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

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

15. 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.

16. There is significant information on file pertaining to the operation of the business.

17. IBSG Australia is an Australian based company providing Business Process Integrations Solutions for a wide range of Australian and New Zealand clients. The company’s focus is on the delivery of SAP applications, services for ERP, and they specialise in Amazon Web Services (AWS), Microsoft® Azure®, Google Cloud Platform™, or services tailored to their customers dedicated environments.

18. 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 business in Australia namely that of an IT service delivery company.

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

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

20. 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.

21. In this case, r.5.19(3)(c)(i) is the relevant provision. The nomination was lodged on 13 June 2017. The nominee was granted the Subclass 457 visa to work in the nominated occupation, Telecommunications Network Engineer, on 25 July 2014.

22. The Tribunal has had regard to payslips along with the payroll activity summary document on the file, which confirms the nominee's employment with the nominator.

23. 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)

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

25. The Tribunal has had regard to the signed offer of employment and the letter of guarantee, confirming the nominee will be employed on a full-time basis for at least 2 years; and that his employment contract does not expressly exclude the possibility of extending the period of employment.

26. The Tribunal has had regard to the documents provided on review, including the nominator's financial statements, company tax returns and BAS. It is noted that the nominator has consistently turned a profit and has significantly increased its turnover by approximately 50% in the last financial year.

27. The Tribunal is satisfied on the totality of the evidence that the nominator has the financial capacity to maintain the nominee's employment as they have done since 2014.

28. The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending the period of employment.

29. 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)

30. 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.

31. The evidence on file indicates the nominee's base salary is $76,000 plus superannuation. He is the only Telecommunications Network Engineer employed in the business, as evidenced in the company organisation chart. There are no equivalent workers within the organisation that have the same terms and conditions or are paid a comparable salary.

32. No applicable award has been identified. The Tribunal considers it appropriate to have regard to 'relevant information' which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australia Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.

33. The Tribunal has consulted a range of sources of information, including:

    ·    Payscale website ( ) report (accessed January 2021) provides a salary range for a Telecommunications Engineer  in Australia of $50,000 to $121,000, with the median salary being $75,000:

34. The nominator has also provided a range of advertisements for similar roles from recruitment websites which confirms the salary ranges as reflected in payscale.

35. The Tribunal is satisfied from the most recent salary survey information and job advertisements that the salary package attached to the nominated position is within the range of salaries for the occupation.

36. 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.

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

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

38. 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.

39. The applicant’s most recent sponsorship approval was granted on 23 January 2019 and is valid until 23 January 2024 this is the relevant period the Tribunal must assess to ascertain if the applicant has complied with the applicable obligations relating to training requirements.

40. Where the most recent standard business sponsorship was approved on or after 18 March 2018, there would not have been any training obligations nor commitments made for the purpose of satisfying the sponsorship approval criteria. This is because, for applications for approval of standard business sponsorship which were undetermined as at 18 March 2018 or made after that date, the criteria in regs 2.59(d) and (e) (which required businesses operating in Australia to either meet the training benchmarks for training Australian citizens and permanent residents as specified by a legislative instrument if the business had traded in Australia for 12 months or more, or have an auditable plan for meeting those benchmarks if the business traded for less than 12 months) no longer applied.[1]

    [1] These requirements for training were repealed by F2018L00262 with the effect that the repealed criteria no longer applied to live applications for approval as a standard business sponsor from 18 March 2018.

41. While this circumstance does not appear to have been contemplated by the legislative changes, the Tribunal determines it reasonable to disregard the training requirement as there are no relevant obligations to be met during the most recent standard business sponsorship approval.

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

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

43. 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. 

44. 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.

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

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

46. 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.

47. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

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

49. 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

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

    Cathrine Burnett-Wake
    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.