iiSnap Pty Ltd (Migration)

iiSnap Pty Ltd (Migration) [2021] AATA 663 (31 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  iiSnap Pty Ltd
CASE NUMBER:  1802391
HOME AFFAIRS REFERENCE(S):          BCC2017/2268398
MEMBER:Andrew George
DATE:31 January 2021
PLACE OF DECISION:  Darwin
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 31 January 2021 at 9:26pm

CATCHWORDS
MIGRATION – nomination of a position – Direct Entry Nomination stream – occupation is Information and Organisational Professionals – demonstrated need for the employment – actively and lawfully operating a business in Australia – terms and conditions of employment – tasks of the position – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245, 360
Migration Regulations 1994, rr 1.13, 5.19, 5.37

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 January 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).
The applicant applied for approval on 27 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream. The nominated person is Mr Ori Moshe Demb. The proposed occupation is Information and Organisational Professionals nec – ANZSCO 224999.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations. The delegate found, “On assessment of the information submitted, the application has failed to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control”.[1]
[1] Notice of Decision Nomination Refusal Notice for Employer Nomination/5.
This matter was listed for hearing on 22 October 2020 but was adjourned to allow the applicant to comply with the practice directions. The hearing was re-listed for 26 November 2020 but was cancelled due to circumstances beyond the Tribunal’s control. In preparation for that hearing, the applicant supplied witness statements in the form of sworn statutory declarations from Mr Ami Barda and the nominated person. The applicant also supplied and indexed and paginated book of relevant documents (the ‘Hearing Book’) and a letter from Armada Accountants and Advisors dated 23 July 2020.
The applicant was represented in relation to the review by its registered migration agent, Ms Segreto of Get Your Visa. Ms Segreto relied upon submissions dated 12 November 2020.
The Tribunal considers that it should decide the review in the applicant’s favour based on the material now before it: s.360(2)(a). Accordingly, and 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.
The Tribunal has before it an Application for Employer Nomination for a Permanent Appointment form submitted on 27 June 2017 at 13:26h.[2] From that form, the Tribunal is satisfied that the application for approval was made on the approved form and was accompanied by the fee prescribed in r.5.37. The form also includes a written certification from the applicant that they have not engaged in conduct in relation to the nomination that constitutes a contravention of s.245AR(1) of the Act.[3]
[2] Hearing Book/735-742.
[3] ibid/742.
It is a requirement that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Indeed, it was on this point that the delegate refused the nomination. In this regard, the Tribunal is assisted by the statutory declaration of Mr Barda declared on 11 November 2020 and paragraph [2.9] in particular. To summarise that evidence, the nominated position is the equivalent of a Chief Information Officer in larger companies. This role is both common and critical in data driven technology companies, such the applicant company. Indeed, as stated in paragraph [2.9.2], “In the case of Mr. Demb, the role he holds and few of the duties he is responsible for are at the heart of the business and key for its success”. The Tribunal accepts this evidence.
The Tribunal is assisted for context by the reference of Mr Hoffmann of Ardross Estates Pty Ltd dated 16 June 2020,[4] and Mr Lopez of Australian Venture Consultants Pty Ltd.[5]
[4] ibid/449-450.
[5] ibid/451.
The Tribunal notes the undated position description of the nominated position,[6] and the undated organisation chart.[7] It is unclear to the Tribunal if these documents were before the delegate, or if they have been updated in the almost four years since the application was lodged. The offer of employment dated 14 June 2017 would seem to have been before the delegate,[8] which has been updated in a document dated 27 July 2020.[9] In any event, from these documents and the applicant’s evidence the Tribunal is satisfied that the application identifies 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) is met.
[6] ibid/452-453.
[7] Ibid/460.
[8] ibid/851.
[9] ibid/455-456.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. The Tribunal accepts Mr Barda’s evidence in paragraph [1.1] to [1.6.4] to the effect that he is the owner of the applicant company, which is an associated entity of ProQ, which he directly operates as Chief Executive Officer. This is corroborated by the letter from Armada Accountants and Advisors dated 23 July 2020. The Tribunal also notes relevant Australian Securities and Investment Commission extracts,[10] and the wealth of financial documentation before it. From this material, the Tribunal is satisfied that the applicant is actively, lawfully, and directly operating a business in Western Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
[10] ibid/743-746.
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. As there is no evidence before the Tribunal suggesting that the nominator is involved in labour hire activities, 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 two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
At paragraph [1.3] of his statutory declaration, Mr Barda’s evidence is that he offered the Mr Demb the nominated position on 6 June 2017. This is broadly corroborated by Mr Demb at paragraph [6] of his statutory declaration and is consistent with Mr Demb’s acceptance of employment dated 17 June 2017.[11] That acceptance does not expressly exclude an extension beyond two years, noting that the Term of Employment clause only refers to an “intention”.[12] This clause is repeated in the applicant’s updated employment offer and acceptance dated 27 July 2020.[13] Accordingly, the Tribunal is satisfied that the nominated person has been employed as an Information and Organisational Professional at the applicant company since 17 June 2017 and the requirement in r.5.19(4)(d) is met.
[11] ibid/851-852.
[12] ibid/851.
[13] ibid/455-456.
No less favourable terms and conditions 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.
The salary of the nominated position is currently $96,000 per annum,[14] which is a recent pay rise from $78,000 per annum.[15] The Tribunal notes that this evidence is not corroborated by the nominated person’s tax documents, which indicate a taxable income of $60,712 in 2018-19.[16] This discrepancy is not explained on the papers alone, as superannuation is paid in addition to salary,[17] and it is of concern to the Tribunal. Nevertheless, the Tribunal gives the applicant the benefit of its concern and narrowly accepts Mr Barda’s sworn evidence at paragraph [2.5] of his statutory declaration that he increased the nominated person’s base salary to $96,000 from $78,000. The Tribunal accepts this evidence on the basis that Mr Barda has acknowledged in his statutory declaration that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under s.11 of the Statutory Declarations Act 1959 (Cth)
[14] ibid/455.
[15] ibid/851.
[16] ibid/235.
[17] ibid/455, 851.
The applicant has provided evidence that the average person in the role of the nominated person in 2018 had a gross annual salary of $93,787.[18] The Tribunal accepts this evidence as the best evidence available to it.
[18] ibid/454.
The Tribunal notes that the nominated person is the only Information and Organisation Professional employed by the applicant.[19] There are no Australian citizens or permanent residents performing equivalent work in the same workplace in the same location.
[19] ibid/460.
On the evidence before it, the Tribunal is narrowly satisfied that the terms and conditions applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident. 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 evidence before the Tribunal of any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator. 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 of any non-compliance with any workplace relations laws in Western Australia, where it operates a business and employs staff. 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 several alternative requirements. These are set out in detail in the attachment to the decision. They relevantly require 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, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met.
The Tribunal notes the tasks of an Information and Organisational Professional as stated in the ANZSCO. This is a Skill Level 1 role, that broadly supports a business by analysing, organising and managing information and data and provides advice on business methods.
In addition to previous findings made in this decision, and noting Mr Demb’s postgraduate education,[20] the Tribunal places weight on the evidence of Mr Demb at paragraphs [12] to [13] of his statutory declaration. The Tribunal finds that he advises on research and development priorities ([12.2]), advises on data flow between the applicant and its customers ([12.5]), and prepares strategic documents ([12.9]). This evidence is broadly consistent with the contents of the Hearing Book, and it is accepted by the Tribunal. Accordingly, the Tribunal is satisfied that the tasks of the nominated position will be performed in Western Australia and they correspond to the tasks of an Information and Organisational Professional.
[20] ibid/432.
The Tribunal notes and accepts Ms Segreto’s written submissions regarding training requirements, which are met. 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.
Andrew George
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).

[2021] AATA 663

31 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies