Ironbark Asset Management Pty Ltd (Migration)

[2022] AATA 239

Ironbark Asset Management Pty Ltd (Migration) [2022] AATA 239 (27 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ironbark Asset Management Pty Ltd

CASE NUMBER:  1834887

HOME AFFAIRS REFERENCE(S):          BCC2018/4592064

MEMBER:Ian Berry

DATE:27 January 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 27 January 2022 at 9:25am

CATCHWORDS
MIGRATION – application for approval of nomination of occupation – medium-term stream – annual market salary rate – earnings of Australian citizen or permanent resident performing equivalent work – no employment contracts or payslips for equivalent Australian workers provided with application – no response to tribunal’s request for current information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140GB(2), 140GBA, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), rr 1.03, 2.57A, 2.72(15)(b), (c), 2.73

CASE
Hasran v MIAC [2010] FCAFC 40

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 November 2018 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 19 October 2018. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the medium-term stream.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(15) because:

   ·If the nominee’s proposed annual earnings are less than $250,000 (reg 2.72(15)(b)), then the applicant must satisfy the relevant requirements of reg 2.72(15).

   ·The applicant’s nomination application states that the applicant employs an Australian worker or Australian workers (which includes permanent residents) in the workplace performing work equivalent to that of the nominated position.

   ·The applicant states that the equivalent worker or workers is or are not paid under an enterprise agreement or industrial award.

   ·Therefore, the applicant is required to determine the Annual Market Salary Rate (AMSR) based on the equivalent Australian worker’s earnings using evidence of an employment contract and/or payslips.

   ·The applicant has not provided the employment contracts or payslips of the equivalent Australian workers.

   ·The method for determining the AMSR is not required by the relevant legislative instrument where there is an equivalent Australian worker (including a permanent resident).

   ·The delegate was not satisfied that the applicant has determined the AMSR for the nominated occupation with the method specified in reg 2.72(15)(c).

4. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.

   S.359(2) of the Act

6. On 8 November 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide:

   ·Information about company and business registration.

   ·Information current approval as a standard business sponsor.

   ·Information about directly operating an active unlawful business in Australia and the financial position of the business for at least the last two years.

   ·Information about the applicant’s business organisational structure and where the nominated position lies within the structure.

   ·Information about the roles and duties of the nominated occupation and how they correspond to the nominated occupation’s position description in ANZSCO, and whether the nominated occupation is subject to inapplicability conditions information.

   ·Information as to why the condition does not apply.

   ·Information about the Annual market salary rate for the nominated occupation, nominee’s annual earnings and terms and conditions of employment.

   ·Information about the Current and previous Visa status of the nominee and the nominee’s English language ability.

   ·Information about whether the applicant satisfies the labour market testing condition or otherwise if it claims to be exempt.

   ·The applicant’s comments or information were to be provided to the Tribunal in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 22 November 2021, the Tribunal may decide on the review without taking further steps to obtain the comments and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. 

   ·The applicant has not provided the comments or information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit it to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

7. The applicant lost its right to appear before the Tribunal as the information it was invited to supply, was not received by the Tribunal on a before 22 November 2021.  The applicant did not provide any information the subject of the invitation.

   Determining the Annualised market survey rate (AMSR)

8. Regulation 2.72(15) contains several requirements which must be met if the nominee’s annual earnings in relation to the nominated occupation will not be at least the amount specified in the instrument IMMI 18/033: $250,000.00. Regulation 2.57A provides for the meaning of ‘earnings.’ Where reg 2.72(15) applies, it requires that:

   ·The annual market salary rate (AMSR) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The AMSR means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

   ·The AMSR, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the Temporary Skilled Migration Income Threshold (TSMIT), specified in the instrument IMMI 18/033: $53,9000.00; and it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(d) and reg 2.72(16)(a).

   ·The nominee’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): reg 2.72(15)(e) and reg 2.72(16)(aa).

   ·The nominee’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: reg 2.72(15)(f) and reg 2.72(16)(b); and

   ·Either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

9. The applicant’s nomination application (page 7 of 15) states that the nominated position’s annualised market salary is $54,795.00 representing the total monetary component. The applicant states that there is not any non-monetary component in the market salary rate above.

   Method of calculating the market salary rate

10. The nomination application states that the employment arrangement with the nominee is an individual arrangement; a written employment contract. It is for a 38 hour week and does not include the guaranteed superannuation contribution, which if included, aggregates at $60,000.00. The applicant employs 30 professionals which are all Australian citizens or permanent residents, except for one holiday maker who presumably is the nominee.

11. For completeness, the nomination application states the following on page 5 of 15:

    We’ve attempted to fill this position through the Australian Labour Market with the help of a professional recruitment firm, approximately 8-10 weeks. After conducting several interviews with Australians, we were successful in filling this position. The nominee is familiar with the business from previously working at ‘Longreach Alternatives', a related party to Ironbark Asset Management. The nominee has proven a greater understanding of how the investments and operations of Ironbark function and has key experience and knowledge of both the Australian and British financial services industries that was not identified in other applicants.
     

12. The applicant did not provide any evidence supporting those claims. If it is assumed the applicant has employed accountants as it appears to be an accounting business, then, if the salary is to be determined in accordance with an enterprise agreement or industrial award, the applicant is to provide the name of the agreement or award as recorded in the Fair Work Commission - the salary level or occupation group that applies to the nomination occupation must be specified.

13. If an enterprise agreement or industrial award does not apply then the applicant is to explain the salary arrangements providing relevant to information to the Tribunal. There has not been any information or evidence relating to that issue.

14. If the scenario is that there is no equivalent Australian worker, then the salary is determined in accordance with an enterprise agreement or industrial award. That information or evidence is to be supplied by the applicant to the Tribunal. Nothing has been provided. If there is an arrangement that does not come within an enterprise agreement or industrial award, then the applicant is to explain how it has used the relevant information to determine what an equivalent Australian worker would have been paid. The applicant has not presented any evidence to the Tribunal in respect of that issue.

15. Regulation 2.72(15)(d) provides for the Tribunal to be satisfied that the AMSR for the nominated occupation, excluding any non—monetary benefits is not less than the TSMIT which is currently $53,900. There is no evidence from the applicant upon which the Tribunal is to calculate what an equivalent Australian worker would be entitled to receive under an enterprise agreement or award provision. It is in those circumstances the Tribunal is not satisfied that it can exercise any discretion it may have that the nominee’s annual earnings will be not less than the AMSR.

16. The applicant provided to the Tribunal, the employment conditions in respect of employees of the applicant:

    a.an Offer of Employment dated 19 February 2018 to a previous employee. The salient features of that offer were that the nominee was to be employed as Client Services Executive in Sydney at a total remuneration package of $55,000 with employment to commence on 26 February 2018. The terms and conditions of the nominee’s employment states the nominee’s total remuneration package is in respect of ‘your TRP (total remuneration package) is for all the hours you work’. The TRP to be reviewed periodically’. In that offer, no mention was made of or referred to the Fair Work Conditions.

    b.A further Offer of Employment was made to a different employee dated 28 June 2018 for the same or similar employment position in Sydney for a total remuneration package of $60,000 commencing 2 July 2018.

    c.Another offer of settlement dated 18 April 2017 was made to another employee with the total remuneration package of $55,000 with the commencement date 8 May 2017.

    d.A further Offer of Employment for $55,000 was made to another employee with the commencement date of 26 February 2018. The amount of $55,000 included superannuation contributions required by law. There is not any suggestion that these offers of employment relates to a visa applicant or nominee.

17. That information does not assist the Tribunal in determining whether the applicant has complied with its obligation under the regulations. It was for that reason the applicant was invited pursuant to s.359(2) to provide further information to the Tribunal. As the applicant did not respond to the Tribunal’s invitation, the Tribunal remains and continues to be unsatisfied as to the appropriate remuneration to which the nominee should be entitled.

18. A letter from the applicant, dated 27 November 2018, explains an employee’s CV was accidentally saved as an Australian employee employment contract. It was a mistake for this to be included and the applicant attached employment offers of three past employees presumably examples of the terms and conditions of employment of the nominee, though the nominee’s offer of employment was not attached.

19. For these reasons the requirements of reg 2.72(15) are not met.

20. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

21. The Tribunal affirms the decision not to approve the nomination.

    Ian Berry
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    2.72 Criteria for approval of nomination--Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa

    (1)This regulation applies in relation to a person who:

    (a)is any of the following:

    (i)       a standard business sponsor;

    (ii)      a person who has applied to be a standard business sponsor;

    (iii)     …

    (iv)    …

    (b)under paragraph 140GB(1)(b) of the Act, nominates a proposed occupation in relation to any of the following (the nominee):

    (i)       a holder of a Subclass 457 (Temporary Work (Skilled)) visa;

    (ii)      a holder of a Subclass 482 (Temporary Skill Shortage) visa;

    (iii)     an applicant or a proposed applicant for a Subclass 482 (Temporary Skill Shortage) visa.

    (2)For the purposes of paragraph 140GB(2)(b) of the Act, the criteria set out in this regulation are prescribed.

    Note: In addition, subsection 140GB(2) of the Act requires the person to be an approved work sponsor and to have paid any nomination training contribution charge in relation to the nomination.

    (3)The Minister is satisfied that the person made the nomination in accordance with the process set out in regulation 2.73.

    (4)The Minister is satisfied that either:

    (a)there is no adverse information known to Immigration about the person or a person associated with the person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.

    (5)The Minister is satisfied that:

    (a)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the person is a standard business sponsor; or

    (b)…

    (5A)The Minister is satisfied that any debt due by the person as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full.

    (6)If the nominee holds:

    (a)a Subclass 457 (Temporary Work (Skilled)) visa; or

    (b)a Subclass 482 (Temporary Skill Shortage) visa;

    the Minister is satisfied that the person has listed on the nomination each other holder of either of those kinds of visa who was granted the visa on the basis of having the necessary relationship with the nominee as mentioned in clause 457.321 of Schedule 2 (as in force before 18 March 2018) or subclause 482.312(1) of Schedule 2.

    (7)However, the Minister may disregard the fact that one or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.

    (8)The Minister is satisfied that:

    (a)the occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified in:

    (i)       if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream—the instrument made under subregulation (9) in force at the time the nomination is made; or

    (ii)      …; and

    (b)the occupation applies to the nominee in accordance with the instrument or work agreement.

    (9)The Minister may, by legislative instrument, specify occupations and, for each occupation:

    (a)whether the occupation is:

    (i)       a short term skilled occupation; or

    (ii)      a medium and long term strategic skills occupation; and

    (b)either:

    (i)       the 6-digit ANZSCO code for the occupation; or

    (ii)      if there is no 6-digit ANZSCO code for the occupation—a 6-digit code for the occupation; and

    (c)if there is no 6-digit ANZSCO code for the occupation—tasks, qualifications and experience for the occupation; and

    (d)any matters for the purpose of determining whether the occupation applies to a nominee, including matters relating to any of the following:

    (i)       the person who nominated the occupation;

    (ii)      the nominee;

    (iii)     the occupation;

    (iv)    the position in which the nominee is to work;

    (v)     the circumstances in which the occupation is undertaken;

    (vi)    the circumstances in which the nominee is to be employed in the position.

    (10)The Minister is satisfied that the position associated with the occupation is:

    (a)genuine; and

    (b)a full-time position.

    (10A)However, the Minister may disregard the criterion in paragraph (10)(b) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (11)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is not an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person or an associated entity of the person (the employer); and

    (e)the person will give the Minister a copy of the contract signed by the employer and the nominee.

    (12)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the person is an overseas business sponsor; and

    (c)the occupation is not an occupation specified by the Minister in an instrument made under subregulation (13);

    the Minister is satisfied that:

    (d)the nominee will be engaged only as an employee under a written contract of employment by the person; and

    (e)the person will give the Minister a copy of the contract signed by the person and the nominee.

    (13)The Minister may, by legislative instrument, specify occupations for the purposes of paragraphs (11)(c) and (12)(c) …

    (14)If:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and

    (c)the Minister requested the person to provide evidence that the nominee satisfies the language test requirements;

    the person has provided evidence to the Minister that the nominee satisfies:

    (d)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.223 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream; or

    (e)if the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream—any language test requirements specified by the Minister in a legislative instrument for clause 482.232 of Schedule 2 that would apply to the nominee if the nominee were an applicant for a Subclass 482 (Temporary Skill Shortage) visa in the Medium-term stream.

    (15)Subject to subregulation (16), if:

    (a)the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream; and

    (b)the Minister is not satisfied that the nominee’s annual earnings in relation to the occupation will be at least the amount specified by the Minister in a legislative instrument made for the purposes of this paragraph;

    the Minister is satisfied that:

    (c)the annual market salary rate for the occupation has been determined by the person in accordance with the instrument made under subregulation (17); and

    (d)the annual market salary rate, excluding any non-monetary benefits, for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of this paragraph; and

    (e)the nominee’s annual earnings in relation to the occupation will not be less than the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)); and

    (f)the nominee’s annual earnings, excluding any non-monetary benefits, in relation to the occupation will not be less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (d); and

    (g)either:

    (i)       there is no information known to Immigration that indicates that the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is inconsistent with Australian labour market conditions relevant to the occupation; or

    (ii)      it is reasonable to disregard any such information.

    (16)However:

    (a)the Minister may disregard the criterion in paragraph (15)(d) if the Minister is satisfied that:

    (i)       the annual market salary rate for the occupation (determined by the person in accordance with an instrument made under subregulation (17)) is not less than the temporary skilled migration income threshold specified by the Minister in a legislative instrument made for the purposes of paragraph (15)(d); and

    (ii)      it is reasonable in the circumstances to do so; and

    (aa)the Minister may disregard the criterion in paragraph (15)(e) if:

    (i)       under subregulation (10A), the Minister disregards the criterion in paragraph (10)(b) in relation to the position associated with the occupation; and

    (ii)      the Minister is satisfied that it is reasonable in the circumstances to do so; and

    (b)the Minister may disregard the criterion in paragraph (15)(f) if the Minister is satisfied that it is reasonable in the circumstances to do so.

    (17)The Minister may, by legislative instrument, specify a method for determining the annual market salary rate for an occupation nominated under section 140GB of the Act or an occupation in relation to which a position is nominated under regulation 5.19.

    (18)If the occupation is nominated for a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream, the Minister is satisfied that:

    (a)either:

    (i)       there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the nominee are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

    (ii)      it is reasonable to disregard any such information; and

    (b)if the person is lawfully operating a business in Australia—the person has not engaged in discriminatory recruitment practices.

    (19)…