INDSOFT PTY LTD (Migration)

INDSOFT PTY LTD (Migration) [2019] AATA 4008 (26 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  INDSOFT PTY LTD
CASE NUMBER:  1616266
DIBP REFERENCE(S):  BCC2015/4021036
MEMBER:Warren Stooke AM
DATE:26 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 August 2019 at 5.58pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Graphic Pre-press Trades Worker – adverse information – sponsorship bar previously imposed – expired but operational – performance of duties beyond the scope of nominated position – technological advances in the area of graphics – bar now set aside by the Tribunal – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140M
Migration Regulations 1994 (Cth), rr 2.57, 2.94A, 5.19
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 Immigration to refuse to grant the applicant a ENS Subclass 186 visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 23 December 2015. The delegate refused to grant the visa on 16 September 2016.
The delegate made the decision on the basis that evidence of ‘Adverse Information’ as defined in regulation 2.57(3), concerning the sponsor’s suitability as an approved sponsor had arisen because the applicant had been sanctioned under s140M(1)(c). The issue related to a failure to comply with the sponsorship obligations required of an approved business sponsor for temporary visas and s140M(1)(d) for making future applications for approval as a standard business sponsor and it resulted in a 24 months ban on the employer from sponsoring more people for Temporary Work (Skilled)(Subclass 457) visas.
The applicant appeared before the Tribunal on 25 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Aman Marwah.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that the reason for the refusal to grant the visa was that the nominee had admitted to the department that he had performed graphic design work.
The applicant confirmed to the Tribunal that he had provided a copy of the decision to the Tribunal with his application.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s.140M.
Background
The applicant was approved as a standard business sponsor on 12 June 2013. On 9 July 2015, the delegate decided to bar the sponsor for 24 months from sponsoring more people for Temporary Work (Skilled) (subclass 457) visas under s.140M on the basis that the sponsor provided no evidence as to who will be performing the duties of creating or updating websites and logos when the business does receive this work, which the delegate considered to be beyond the scope of the sponsored position of a Graphic Pre-press Trades Worker as per ANZSCO code 392211. [Tribunal Case Matter 1510096].
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s.140M, if prescribed circumstances exist, the Minister (and the tribunal on review) may take one or more of the following actions:
·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
·cancelling the sponsorship approval for all classes to which the sponsor belongs;
·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in r.2.89 - r.2.94B and include circumstances in which the Minister, or tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.
The applicant provided evidence that the sponsored position of Graphic Pre-press Trades Worker included the following tasks:
a.using computer applications to generate images, text, layouts and impositions for print and other visual media displays;
b.operating computer screen-based equipment for scanning, colour separation, colour correction, masking, creative design, combining, imposing, retouching, and other processes used to transfer copy to film and produce film for plate, digital output and cylinder productions
c.evaluating printed proofs, checking and correcting them for quality.
The applicant stated that his business does not use offset printing equipment, but rather computer based software that has displaced the older offset technology. As such, the business does not perform offset printing or use carbon printing, where the modernised process includes the use of toners and ink cartridges.
The applicant stated that the business undertakes work in both the retail and commercial industrial sectors and that the work description, as work performed by the business, included the printing of business cards; flyers; posters; and general signage.
The applicant stated that the business operates out of a factory complex in Springvale and has sophisticated equipment that includes a Xerox Digital Colour Machine; a Roller Signage printer and folder binding and laminating machines.
The applicant gave evidence that the business has a turnover of $430,000.
The applicant gave evidence that he is the Manager of the business, which he had originally established and then sold to Sotech in 2016. He stated that he has a Master’s degree in Accounting and has 20 years’ experience, including worked performed with the Coles supermarket chain.
The applicant gave evidence that the Department had contacted him over the phone and spoke to both himself, as the owner and the nominee. He stated that the business comprised of himself and the nominee and that the nominee had been with the business since its start-up.
The applicant gave evidence that the award applying to the nominee is the Graphic Arts Modern Award 2010 and that the nominee was provided with an Information Statement at the commencement of employment consistent with the requirements of the Fair Work Act 2009.
Further, the applicant stated that he advertised for the position and that he selected the nominee because all of the other applicants were not experienced and were students.
The applicant stated that the work is procured from the clients and then the scope of the job is provided to the nominee and delivered, which includes making up the work and then printing.
The applicant gave evidence that the nominee has both a Certificate and Diploma in Graphics.
The Tribunal was advised that the nominee, who commenced with the business in 2013, works 38 hours per week and receives a current remuneration package of $54,000 per annum, together with a superannuation payment of 9.5%, which is contributed into the HostPlus superannuation fund.
The applicant stated that he works in the business part-time, usually for 3 days and draws a salary of between $30,000 and $35,000 per annum.
Evidence of the Nominee
The nominee gave evidence that he joined the business after receiving his visa on 6 November 2013 and that his role was as a pre-press operator, engaged in printing, designing, binding, where the clients include the Victorian Institute of Accounting, Real Estate agents and restaurants.
The nominee stated that he had been in Australia for a period of 14 years and that he is married.
The nominee stated that he uses a Fuji Xerox Colour printer; guillotine machine; a Roller signage printer; a binding machine; and a folding machine.
The nominee stated that he has no contact with clients in his role.
The nominee gave evidence that he was visited by Departmental Officers at his workplace, who asked for details about his duties, including printing; pre-press and design work.
Submission of the Representative
The representative stated that the bar imposed on the applicant from 9 July 2015 for a period of 2 years should not have been imposed and that the bar is now extinguished, including the adverse material.
The representative submitted that after the bar expired the applicant’s 457 Visa was cancelled because the Department took the view that the applicant performed duties outside the parameters, including performance of web design, which was regarded as not consistent with a Graphic Pre-press worker classification under the ANZSCO descriptor code 392211.
The representative referred to a decision of the Tribunal concerning the visa cancellation of the nominee in Case Matter 1607552 and the findings made by the Member at paragraphs 74 to 78; wherein it was found to be a ‘grey area’ regarding the duties of a graphic designer and Pre-press graphic worker ant that no significant or deliberate breach on the part of the nominee had occurred. Further, the Member directed the re-instatement of the applicant’s visa (the nominee) in that Case Matter.
Further, it was submitted that in Case Matter 1607552 the Member dealt with the bar in the decision, which was handed down on 25 November 2016.
The representative submitted that even if the Department was right, the bar has expired and he stated that the applicant was employed as a Pre-press Graphic worker, that included binding and cutting, which is not within the scope of Graphic Designer but is within the job scope of a Pre-press Graphic Worker.
It was submitted that the nomination was only refused because of adverse information and the bar is still is operational [although expired].
Further, it was submitted that the Tribunal should disregard the prior information, which was based upon evidence, accepting that in part the applicant does perform graphic design through computer applications.
The representative asked that the Tribunal to find that in Case Matter 1510096 that the bar had expired in 2017.
Consistent with the decision of the Member in Case Matter 1607552, the Tribunal, as currently constituted, agrees with the following finding in that Case Matter [(Migration) [2016] AATA 4709 (25 November 2016)], as follows:
“73.The applicant’s visa was subject to 8107 condition and, based on his oral evidence, I am satisfied that he was aware of the visa conditions attached to his subclass 457 visas.
74.The ground for cancellation arose because the applicant had not worked only in the occupation listed in the applicant’s most recently approved nomination, but has also carried out work as a Graphic Designer.
75.I accept the applicant’s claims that there is a fine line between occupations of Graphic Pre Press Trades Worker and Graphic Designer and that duties listed in the ANZSO are not exhaustive but only indicative list of duties for these occupations. I further accept that there is an obvious overlap between the two occupations as both involve the design of images and texts for reproduction.
76.I accept that the applicant performed complimentary work in addition to his primary duties at the sponsoring business. I accept that tasks of Graphic Pre Press Trades Worker and Graphic Designer are interrelated despite different level of education required for these two occupations.
77.I am satisfied on the evidence before me that the business retained the services of Mr. Syed Hussaini to undertake web design and that the visa holder was the only person employed to perform the role of Graphic Pre Press Trades Worker at the relevant time.”
78.For this reason I am satisfied that in this instance, there was no significant or deliberate breach of condition 8107. This is the consideration that favours the reinstatement of the applicant’s visa.
Further, the Tribunal notes that the ANZSCO Code 392211 for a Pre-press Graphic Worker does not reflect the technological advances that have been made in the area of graphics, which have rendered an industry that is reliant upon computer based technology that has now displaced conventional printing, albeit that the product outcome is substantially the same. As such, the Tribunal does not accept that an imposition of a bar on the sponsor was reasonable having regard for the evidence of the duties performed by the applicant. However, given the period of the bar period has expired, the decision of the Tribunal, in these circumstances, will provide a correction of the record and remove any potential stigma associated with the imposed bar, should the applicant seek to support any future application for sponsorship.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.94A do not exist for the purpose of s.140M of the Act and thereby a bar on sponsorship should not have been imposed. As such, it follows in this Case that the ‘Adverse Information’ relied upon by the delegate, appropriate at the time of the delegate’s decision given the circumstances, do not exist following the review undertaken by the Tribunal, as currently constituted, and addressed in the decision handed down on 26 August 2019 [Tribunal Case Matter: 1510096].
THE NOMINATION
The application is compliant: r.5.19(4)(a)
The issue before the Tribunal 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). For the nomination to be approved, all the requirements must be met.
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 application for approval was made on 23 December 2015 on the appropriate Departmental Form 1395 (Internet) and the accompanying fee was paid by the applicant at the time of lodgement.
On the basis of the information provided in both the Departmental and the Tribunal’s files, there is no evidence before the Tribunal that s.245AR(1) has not been complied with.
The application for approval identifies the nominee, as Mr Aman Marwah and his wife Mrs Amandeep Bedi, who were granted a Subclass 457 visa on 6 November 2013 on the basis of satisfying c1.457.223(4) of Schedule 2.
The occupation identified in the application form is Graphic Press Trades worker (ANZSCO 392211).
The Tribunal is satisfied based on the employment documents for Mr Marwah that the occupation identified is the same occupation that is carried out by the nominee as the holder of a Subclass 457 visa. Accordingly, the Tribunal is satisfied that this occupation carries the same four-digit code (392211) as the occupation carried out by the nominee whilst he has held a Subclass 457 visa.
Given these circumstances, the Tribunal is satisfied that the requirement in r.5.19(3)(a) is met.
The enterprise, on the basis of the evidence, which has a projected gross turnover of $430,000 for income tax year 2019, and includes a business specialising in the provision of graphic print material for retail and commercial businesses’, warrants in the Tribunal’s view, a Graphic Pre-Press Trades worker (ANZSCO 392211). In this regard, information provided through the company’s financial documentation confirmed a total gross trading income of $319,559.03 in the financial year 2018 and a net taxable income of $229,511.70. As such, the Tribunal notes that the business has the financial capacity to support the nominated position. [Tribunal File – Folios 182 to 185]
The applicant gave evidence that the skills required with the nominated position are critical to support the business and that the nominee has trade level qualifications and more than 6 years’ experience in the nominated position. In this regard, the applicant tried to recruit locally and found it difficult to acquire a suitably qualified person to fulfil the role.
Accordingly, 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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. The applicant provided the Tribunal with evidence that Indsoft Pty Ltd is a registered business with an ABN 85 163 103 713 and was registered on 2 April 2013. Further, an ASIC registration certificate confirms registration from this date. [Tribunal File: Folio 27]
The Tribunal is not aware of any information, at the time of decision, which would indicate that the nominator is not actively and lawfully operating a business in Australia.
Accordingly, the requirement in r.5.19(4)(b) is met.
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.
The Tribunal is satisfied that all the employees engaged in the business are direct employees with employment contracts with Indsoft Pty Ltd and that no other personnel are independently sub-contracted corporate entities.
Accordingly, 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 more than years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant gave evidence that the nominee was subject to a contract of employment that would be in place for a period exceeding 2 years, and that the current employment contract that commenced on 14 February 2016 is subject to approval of the applicant’s ENS 186 visa being approved. The contract includes a salary of $54,000 per annum. [Tribunal File: Folios 43-45]
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition 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 applicant in the written submissions prior to the hearing provided the Tribunal with the following document, which confirmed that award and statutory obligations under the provisions of the Fair Work Act 2009 are being complied with:
·A copy of the employment contract for 14 February 2016 [Tribunal File: Folios 43-45];
Further, the applicant gave evidence that superannuation payments are contributed into HostPlus, in accordance with Superannuation Guarantee.
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.
As previously stated, the Tribunal has considered the ‘Adverse Information’, which was considered by the delegate in this case and for the reasons stated herein, the Tribunal is satisfied that the applicant is not the subject of ‘Adverse Information” that would impact upon consideration of the approval of the application.
The Tribunal is satisfied that the requirements of r.5.19(4)(g) 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.
The Tribunal is satisfied on evidence that the underpinning award covering the nominee’s occupation is the Graphic Arts Industry Modern Award 2010 and that at the time of engagement the nominee was provided with a contract of employment.
The Tribunal is satisfied that the nominee is paid a wage that exceeds the minimum rate of pay provided under the award and a base salary of $54,000 per annum is paid to the nominee, exclusive of superannuation, as per the obligation of the contract of employment [Tribunal File: Folios 43-45].
The Tribunal, following a review of the submitted material, which was provided prior to the hearing, has verified the remuneration paid to the nominee, including superannuation contributions.
The nominee gave evidence that he works 38 hours per week and has been granted 4 weeks annual leave in accordance with the Fair Work Act 2009.
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 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:
·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 the relevant Register of Instruments. As such, 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 at the ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal is satisfied that the skills applied by the nominee with Indsoft Pty Ltd conforms with the following skills identified in ANZSCO descriptor code 392211:

“
UNIT GROUP 3922 GRAPHIC PRE-PRESS TRADES WORKERS

“GRAPHIC PRE-PRESS TRADES WORKERS manipulate, set and compose text and graphics into a format suitable for printing and other visual media.

Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:

AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

Tasks Include:

o    operating graphic cameras and other photographic equipment to reproduce camera-ready copy onto films, plates and digital output devices

o    using computer applications to generate images, text, layouts and impositions for print and other visual media displays

o    operating plate making equipment to reproduce images from film to printing plates, digital output devices and presses

o    operating computer screen-based equipment for scanning, colour separation, colour correction, masking, creative design, combining, imposing, retouching, and other processes used to transfer copy to film and produce film for plate, digital output and cylinder productions

o    carrying out digital and chemical proofing from digital systems, and negative and positive films

o    evaluating printed proofs, checking and correcting them for quality

o    preparing and exposing carbon tissue for laying on cylinders by transfer method, and developing images

Occupation:

392211 Graphic Pre-press Trades Worker

392211 GRAPHIC PRE-PRESS TRADES WORKER

Manipulates, sets and composes text and graphics into a format suitable for printing and other visual media.

Skill Level: 3
Specialisation: Desktop Publishing Operator”

The Tribunal is satisfied that based upon the oral evidence from both the applicant and the nominee that the role performed by the nominee is that of a Graphic Pre-press Trades Worker.
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.

Warren Stooke AM
Member

[2019] AATA 4008

26 August 2019

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