J.K HEDERICS & M.G HEDERICS & PWR LAND HOLDINGS PTY LTD (Migration)

J.K HEDERICS & M.G HEDERICS & PWR LAND HOLDINGS PTY LTD (Migration) [2019] AATA 2647 (2 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  J.K HEDERICS & M.G HEDERICS & PWR LAND HOLDINGS PTY LTD
CASE NUMBER:  1702830
DIBP REFERENCE(S):  BCC2016/2007466
MEMBER:Penelope Hunter
DATE:2 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 02 April 2019 at 2:28pm
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – nomination did not satisfy – not satisfied that the relevant training benchmarks had been met – no contributions to industry training fund – has not provided evidence of who undertook relevant training and their status – satisfied that the applicants have fulfilled the commitment made relating to meeting the training requirements – training requirements of 1% of payroll expenditure were met – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 1.20DA, 2.59(h), 2.68(i), 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 on 31 January 2017 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 10 June 2016. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because they were not satisfied that the relevant training benchmarks had been met.
Background
The applicants are engaged in primary production and produces citrus, vegetables and wine. Through the application, the applicants have sought approval to sponsor Mrs Parmjit Kaur Purba (the nominee) in the nominated position of nursey person (ANZSCO 362411) for a salary of $54,000 plus entitlements.
Before the Department the applicants filed the following relevant material:
i.Monthly Business Activity Statements (BAS) for the applicants for the periods July 2014 to June 2015, and September 2015 to September 2016.
ii.Employment contract for the nominee and letter confirming employment with the applicants.
iii.Job Outlook extracts and market salary submission.
iv.PAYG summaries for the nominee for the financial years ending 30 June 2015 and 30 June 2016.
v.Belah Heights Partnership financial report for the years ending 30 June 2015 and 30 June 2016.
vi.Several training receipts.
The delegate who considered the matter noted that the applicants stated on the application form that it had made no contributions to industry training funds in the past 12 months, and consequently Benchmark A was found not to be met. In relation to Benchmark B, the delegate set out that three documents were provided by the applicants in relation to training and noted the following issues:
i.Document 1 consisted of an invoice from PD Training dated 5/04/2013 for a ‘Communication Skills and Training Course’ and ‘Time Management Training’ for a total of $6,612 and there were no attendees named. Also included was receipt no. 4798 from McKkr’s Training dated 10 April 2014. This receipt stated that it was for (training benchmark B) ‘Safety in the Workplace’ and ‘Supply Chain Management’ for 9 attendees for a total of $9,900. There were no attendees named and it was noted from the financial statements for the year ending June 2015 there was no indication that this amount had been spent on training. As the attendees had not been named, nor evidence of their Australian citizenship/permanent residency status provided it was not possible to determine the company expenditure on training for Australian citizen/permanent residents.
ii.Document 2 was titled Training receipt FY 2015 to 2016. This was a tax receipt no. 10508 dated 11/01/2017. It stated that it was for ‘Training Benchmark B’, ‘Build client Relationships and Business Networks’, ‘Customer Service’, ‘Communication Strategies’, ‘Teamwork and Team Building’, Handling a Difficult Customer’, ‘Overcoming Sales Objectives’, for 2 attendees. The receipt was for $6,500 and notes on the receipt state that it was for training expenses relating to the financial year 2015-2016. There were no attendees named, although the delegate assumed they were Craig Baker and Raylene Kemp from information in document 3.
iii.Document 3 consisted of multiple listed training delivery confirmations for e-learning modules that were delivered to Craig Baker and Raylene Kemp for courses of ‘Build Client Relationships and Business Networks’, ‘Customer Service’, ‘Communication Strategies’, ‘Teamwork and Team Building’, ‘Handling a Difficult Customer’ and ‘Overcoming Sales Objectives’. While Craig Baker and Raylene Kemp had been named as attendees for the course, the delegate was concerned that an organisational chart outlining their positions in the business or evidence of their Australian citizenship/permanent residency status had not been provided.
The delegate concluded that it was not possible to establish the applicants’ expenditure on training for Australian citizens/permanent residents and concluded that Benchmark B was not met.
Information before the Tribunal
Prior to the Tribunal hearing the following additional documents were submitted:
i.Agent’s submission.
ii.Letter of submission regarding training benchmarks and receipts.
iii.Employee schedule.
iv.Letter of confirmation of employment of nominee and employment contract.
v.PAYG Summaries and Notices of Assessment for the nominee for the years ending 30 June 2015, 2016, 2017 and 2018.
vi.Partnership return for the financial year ending 30 June 2016 and 30 June 2017.
vii.Special Purpose Financial Reports for the year ending 30 June 2016, 30 June 2017 and the 6 months ending 31 December 2017.
viii.Asset schedules for the periods 1 July 2016 to 30 June 2017 and 1 July 2017 to 3 December 2017.
ix.BAS for the period November 2016 to November 2018.
x.Department visa grant notice dated 4 June 2014 issued to the nominee.
xi.Department letter of notification of approval of nomination for a Subclass 457 visa issued to the applicants dated 22 October 2013.
xii.Notice of Decision Sponsorship Approval from 25 July 2013 to 25 July 2016.
Mr John Hederics, on behalf of the applicants, appeared before the Tribunal on 28 February 2019 to give evidence and present arguments via video from Mildura. The applicants were represented in relation to the review by their registered migration agent. The hearing of this application was combined with the hearing of the application lodged by the nominee. Mrs Parmjit Kaur Purba also provided evidence in relation to the application. Where relevant the Tribunal has set out the evidence provided at hearing below.
On 13 March 2018, following the hearing, the applicants provided further documents in support of the application including a letter of submission from the applicants, confirmation of change of name by one of the partnership members and a letter of explanation of the partnership accounts by the partnership accountants, WMS Solutions Pty Ltd, and a schedule of contractor transactions.
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 applicants 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)
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.
On the basis of the information in the Department file, the Tribunal is satisfied that the application was made on the relevant form and the relevant s.245AR(1) certification was also provided to the Department.
The application for approval identifies Parmjit Kaur Purda who, according to Departmental records, has held a Subclass 457 visa since 4 June 2014 on the basis of satisfying cl.457.223(4).
The occupation identified in the application is Nurseryperson (ANZSCO 362411). The Tribunal is satisfied based on the nominee’s Notices of Assessment, PAYG Summaries, and the oral evidence presented at the hearing the occupation identified is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is also satisfied that this occupation carries the same code (362411) as the occupation carried out by the nominee whilst she held a Subclass 457 visa. Mr Hederics and the nominee gave evidence that she is responsible for tasks consistent with the occupation. The applicants’ business was previously mainly involved in melon production and was in the process of transitioning also to citrus. The nominee undertook tasks of budding and grafting the fruit stock, she was particularly adept at branch bending which was a new technique aimed at bringing the citrus crop into production as soon as possible. Additionally the nominee monitored the irrigation schedule. With the watermelon production, the nominee had a role in selecting seeds and cuttings, and planting them. The nominee also monitored and treated plant disorders and kept records of treatment, plantings, losses and yields. The Tribunal is further satisfied that the occupation carried out by the nominee substantially corresponds with an occupation in unit group 3624.
Given the above findings, the requirements in r.5.19(3)(a) are met.
Status of the nominator: r.5.19(3)(b)
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.
The Department records confirm that J.K Hederics & M.G. Hederics & PWR Land Holdings Pty Ltd were approved as a standard business sponsor in the period 25 July 2013 to 25 July 2016. The post hearing submissions and ASIC records confirm that PWR Land Holdings Pty Ltd changed its name to Belah Heights Property Pty Ltd on 11 September 2015. The partnership ABN has remained the same. The Tribunal is satisfied that although one of the partners has changed their name, there has been no change in the business structure and the partnership entity was the standard business sponsor who last identified the nominee, the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act.
The Tribunal has had regard to the BAS, partnership income tax returns, special purpose financial statements, PAYG summaries, and invoices issued by training suppliers, and the oral evidence provided during the hearing . On the basis of this evidence the Tribunal is satisfied that the applicants are actively and lawfully operating a business in Australia.
The Tribunal has also had regard to the Departmental records and is satisfied that the applicants were not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
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 two of the three 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 two years in the three years immediately before the application.
The nomination was lodged on 10 June 2016. The applicants have provided to the Tribunal evidence that the nominee has been employed in the position since 16 September 2013 pursuant to a letter of engagement. On 10 June 2016, the nominee was provided with a further full-time employment contract. In addition, the applicants have provided PAYG summaries for the applicants issued from 1 July 2014 to 30 June 2018. The Tribunal has also had regard to the oral evidence of Mr Hederics and the nominee.
On the basis of the evidence, the Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 visa for at least two years in the three year period immediately before the nomination application was made.
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)
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 two years on terms that do not expressly preclude the possibility of an extension.
The Tribunal has had regard to the signed contract of employment for the nominee dated 10 June 2016. This contract provides that the duration of employment will be for a minimum of two years upon the approval of the nominee’s visa. It does not exclude an extension. The base salary offered is $54,000. The nominee is to be paid superannuation in accordance with the legislative requirements and her leave entitlements include the following types of leave: annual, sick, carer’s, personal, compassionate, parental and long service. There is no term excluding an extension of the contract. The Tribunal has also had regard to the financial documentation and activity statements of the applicants and the nominee’s ATO notices of assessment. It is noted that the PAYG summary for the year ending 30 June 2017 provides only for gross payments of $28,215. At the hearing, evidence was provided that during this financial year the nominee had a child, and approximately six months of maternity leave. Having regard to this material, Tribunal is satisfied that the applicants have the financial capacity to maintain the nominee’s full-time employment as they have done so since 2013.
In making this finding the Tribunal is mindful of the information provided at hearing that due to problems with a virus affecting their watermelon product, the partnership business no longer supplies watermelons/vegetables and it has diversified and the main business is now citrus for the domestic/international market. This process of re-structuring is currently in the development stage as fruit production is yet to be realised. This has affected the partnership profits in the 2017/2018 financial year. However, the partnership business operators, lenders and accountants were comfortable of a return to profitability once production resumed after a period of restructure and growth.
Therefore, the Tribunal is satisfied on the totality of the evidence the applicants would employ the nominee for at least two years full-time and on terms that do not expressly preclude the possibility of extension.
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)
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.
There is a contract of employment between the applicants and the nominee signed on 10 June 2016. With the exception of the year ending 30 June 2017, the nominee’s PAYG summaries indicate that she has been remunerated in accordance with her contract of employment.
The Tribunal has also taken into account evidence provided by the applicants in relation to the market salary rate for nursery persons. It has been provided with samples of recruitment advertising and information from the government’s job outlook website. The information from records the average weekly pay for a nursery person was $963 (equivalent to an annual salary of $50,076 for a person working 38 hours per week on a full-time basis). The evidence from the Nursery Award 2010 indicates that for a grade 4 level employee the weekly pay rate is $837.40, or an annual salary of $43,544. The comparable job advertisements submitted also provide evidence of salary offerings between $52,000 to $68,000 per year. Finally, the Primary Industry Salary Centre in the subsector of horticulture shows the salary trend of an average salary of $57,752.
Based on the information before it, the Tribunal is satisfied that the nominee’s base salary is within the range appropriate that is normally paid to an experienced nursery person working in regional New South Wales.
Having regard to the employment contract and the evidence before it, the Tribunal is also 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.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicants 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 applicants’ most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The Tribunal finds that the period of the applicants’ most recent sponsorship approval was 25 July 2013 to 25 July 2016.
The Tribunal noted the delegate did not accept that the applicants met this requirement because they were not satisfied that the evidence demonstrated that the applicants had spent an amount on training equivalent to at least 1% of the payroll expenditure in the relevant period on the training of Australian citizens or permanent residents. The Tribunal notes that the applicants had not provided evidence of who undertook relevant training and their status as either Australian citizens or permanent residents.
The Tribunal has before it additional information and the benefit of the oral evidence provided on behalf of the applicants at the hearing. The employment schedule sets out the citizenship status of all employees of the applicants and their employment basis. Furthermore, additional documentation from the applicants has addressed the concern that training expenditure was not documented in the special purpose financial reports prepared by the accountants. The expenses were recorded as contractor expenses, as the business contracts with an outside education provider. The applicants have also provided a schedule of payments to contractors in the relevant periods which confirm that the accounts were paid as contractor expenses and during the period of the sponsorship approval.

For the first year of the nomination approval, roughly corresponding to the 2013/2014 financial year, there was payroll expenditure, including contract expenditure of $1,193,901. Invoice 20143006-1, dated 30 June 2014, issued by Victorian Academy of Commerce and Technology Startups ABN 64600 078 886, for the sum of $13,200 lists the employees who undertook the relevant training. The Tribunal confirmed their citizenship status with Mr Hederics at the hearing and many of whom were consistent with the employees listed as at 30 December 2018. The Tribunal is satisfied that training requirements were met in this year.
For the second year, the applicants provided a payroll expenditure figure of $883,949. The training expenditure undertaken in this period was $9,900, as documented in the invoice of McKkr’s Training dated 19 March 2015. Again, the Tribunal has confirmed that the attendees were Australian citizens and permanent residents. The Tribunal is satisfied that training requirements were met in the second year of the nomination approval.
In the third year, which marked the beginning of the applicants’ restructure, the payroll expenditure figure was $589,526. Invoice 20163006-1, dated 30 June 2016, also issued by Victorian Academy of Commerce and Technology Startups, for the sum of $6,600.00 is the expenditure that was incurred during this period. The invoice lists the employees who undertook the relevant training, those were confirmed by the Tribunal at the hearing and with the pre-hearing submission to be employees that are Australian citizens or permanent residents. The Tribunal is also satisfied that training requirements of 1% of payroll expenditure were met in the third year of the nomination approval.
On the evidence before it, the Tribunal is satisfied that the applicants have fulfilled the commitment made relating to meeting the training requirements and complied with the applicable sponsorship obligations relating to the training requirements during the most recent period of approval as a sponsor.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
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.
There is no evidence before the Tribunal to indicate that there is any adverse information known to Immigration about the applicants or any person associated with the applicants.
The Tribunal is therefore satisfied that the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicants to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicants operate a business and employ employees in the business, relating to workplace relations.
There is also no evidence before the Tribunal to indicate that the applicants do not have a satisfactory record of compliance with workplace relations laws in the locations where the applicant has operated their business and employed staff.
Accordingly, the requirement in r.5.19(3)(h) is met.
Based on the findings above, the Tribunal is satisfied that the applicants 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.
Penelope Hunter
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.

[2019] AATA 2647

2 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Appeal