Intermost Pty Ltd (Migration)

[2020] AATA 5815

Intermost Pty Ltd (Migration) [2020] AATA 5815 (15 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Intermost Pty Ltd

CASE NUMBER:  1807143

HOME AFFAIRS REFERENCE(S):          BCC2017/3359663

MEMBER:Sheridan Lee

DATE:15 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 15 December 2020

CATCHWORDS

MIGRATION – approval of a nomination – Direct Entry Nomination stream – occupation of Civil Engineer – financial capacity to employ the nominee for at least 2 years – actively and lawfully operating a business – terms and conditions of employment – tasks of the position correspond to the occupation – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 245
Migration Regulations 1994, rr 5.19., 5.37

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 26 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 to nominate Mr Jasmin Trgo to work in the occupation of Civil Engineer on 14 September 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 Direct Entry nomination stream.

4. The delegate refused the application on the basis that the applicant’s nomination did not meet the requirements set out in r.5.19(4)(d)(i) of the Regulations because they were not satisfied that the nominee would be employed on a full-time basis in the position for at least two years.

5. Mr Mladen Kljaic, Director of Intermost Pty Ltd, appeared before the Tribunal on 6 October 2020 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from the nominee, Mr Jasmin Trgo.

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 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)

9. 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 an identified person as a paid employee to work in the position under their direct control.

10. Having reviewed the Departmental file, the Tribunal is satisfied that the application for approval:

    ·was made on the approved form 1395 and was accompanied by the fee prescribed in r.5.37

    ·includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1), and

    ·identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control.

11. 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)

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

13. In submissions to the Tribunal, the applicant outlined that Intermost offers land development, site preparation and civil engineering services for the development of large-scale projects in the residential and commercial construction sector.

14. An Australian Securities and Investments Commission extract reports that Intermost has been registered as an Australian Proprietary Company since 19 March 2014.

15. The applicant supplied the Tribunal with Business Activity Statements (BAS) lodged with the Australian Taxation Office for September 2019 to August 2020 and tax returns and financial statements for the 2018 and 2019 financial years.

16. Based on the evidence before it, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating and meets the requirement in r.5.19(4)(b).

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

17. 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. 

18. While Intermost provides consulting services to other companies, the nominator is not involved in 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)

19. 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.

20. The applicant supplied the Tribunal with a signed letter of engagement to Mr Trgo, dated 20 October 2020. The letter outlines that the nominee will be employed on a full-time basis for a period of at least two years and the terms do not exclude the possibility of extending the employment period beyond that time.

21. Having reviewed the company financials, the Tribunal is satisfied that the company can support the position for at least two years. The Tribunal further notes that the company has demonstrated that it can continue to operate and maintain the nominee’s salary since he was employed in 2017.

22. Accordingly, the requirement in r.5.19(4)(d) is met.

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

23. 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.

24. At the Tribunal hearing, Mr Kljaic gave evidence that there are no other Civil Engineers employed by Intermost. The applicant originally engaged the nominee on a salary of $72,500. As discussed with the applicant, the Tribunal had some concerns as to whether this salary would be less favourable than that which would be paid to an Australian citizen or permanent resident.

25. In post-hearing submissions, the applicant advised that having reviewed Mr Trgo’s terms and conditions and current market rates, Intermost increased his salary to $100,000 per annum. The letter of engagement supplied to the Tribunal confirmed the new rate of pay.

26. The Tribunal finds that the terms and condition applicable to the 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. Accordingly the requirements of r.5.19(4)(e) are met.

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

27. 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. 

28. 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.

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

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

30. 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.

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

32. 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)

33. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but the relevant provisions in this matter can be briefly summarised as requiring 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 17/080),

    ·the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument,

    ·there is a genuine need for the nominee to be employed as a paid employee in the position, and

    ·certain specified training requirements are met.

34. The applicant has nominated the position of Civil Engineer, which is an occupation specified by the Minister in IMMI 17/080. Submissions dated 12 August 2020, outline that the nominee performs the following tasks as listed in the ANZSCO occupational dictionary:

    ·determining construction methods, materials and quality standards, and drafting and interpreting specifications, drawings, plans, construction methods and procedures

    ·organising and directing site labour and the delivery of construction materials, plant and equipment, and establishing detailed programs for the coordination of site activities

    ·studying architectural and engineering drawings and specifications to estimate total costs, and preparing detailed cost plans and estimates as tools to assist in budgetary control

    ·monitoring changes to designs, assessing effects on cost, and measuring, valuing and negotiating variations to designs.

35. The full list of tasks outlined in ANZSCO are:

    ·determining construction methods, materials and quality standards, and drafting and interpreting specifications, drawings, plans, construction methods and procedures 

    ·organising and directing site labour and the delivery of construction materials, plant and equipment, and establishing detailed programs for the coordination of site activities 

    ·obtaining soil and rock samples at different depths across sites and testing samples to determine strength, compressibility and other factors that affect the behaviour of soil and rock when a structure is imposed and determining the safe loading for the soil 

    ·studying architectural and engineering drawings and specifications to estimate total costs, and preparing detailed cost plans and estimates as tools to assist in budgetary control 

    ·monitoring changes to designs, assessing effects on cost, and measuring, valuing and negotiating variations to designs 

    ·analysing structural systems for both static and dynamic loads 

    ·designing structures to ensure they do not collapse, bend, twist or vibrate in undesirable ways 

36. At the Tribunal hearing, Mr Trgo gave evidence that his daily tasks include reading drawings, preparing calculations for tendering, submitting council applications and arranging traffic management. Once construction starts on a project he deals with sub-contractors, manages the budget, goes onsite to measure, check if there needs to be changes. The rest of the time, he is in the office dealing with things via email and telephone.

37. At the time of the Tribunal hearing, the nominee was managing two projects: one is a service station with additional buildings around the site, the other is a subdivision creating the roads and electricity etc for a new housing development.

38. Mr Trgo gave evidence that he started with Intermost in mid-2015. He is qualified as a civil engineer, which is recognised in Queensland.  From 2017 he has been registered with Engineering Australia.

39. On the basis of the above evidence, the Tribunal finds 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 and the occupation is applicable to the proposed employee. Given the nature of the business, as outlined earlier in this decision, the Tribunal further accepts that there is a genuine need for the nominee to be employed as a paid employee in the position of Civil Engineer.

40. For the purposes of r.5.19(4)(h)(i)(B)(I) of the Regulations, the specified requirements for the training are set out in IMMI17/074. Training Benchmark B requires recent expenditure to the equivalent of at least 1% of the payroll of the business in the provision of training of employees who are Australian citizens and permanent residents.

41. The applicant supplied letter dated 24 August 2020 from Malcolm Orman, Director of Namro Services Pty Ltd. The letter states that the firm has acted as the accountant for Intermost since January 2020 and ‘for the period from 21 August 2019 to 21 August 2020, the gross payroll is $510,977.50 and expenditure training [sic] is $5,500’. BAS were supplied to verify payroll expenses.

42. In respect of the training expenditure, the applicant supplied an invoice issued by McKkr’s Training, dated 11 August 2020, for the amount of $5,500 for two attendees for a range of units. In addition, a transfer receipt from Suncorp Bank for a payment from Intermost to McKK for $5,500 on 20 August 2020 and a receipt for payment issued by McKkr’s were supplied.

43. In order to demonstrate the citizenship status of the two training attendees, the applicant supplied a birth certificate issued in the District of Hobart for Lindsay James Haddrick and a payslip issued to Lindsay Haddrick by Intermost. The applicant further supplies a birth certificate issued in New South Wales for Nikola Pozder and a certificate of Australian Citizenship issued to Milorad Pozder, Nikola’s father. Plus, a payslip issued to Nikola Pozder by Intermost.

44. Accordingly the requirements of r.5.19(4)(h) are met.

45. 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

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

    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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).