JOEL CO. GROUP PTY LTD (Migration)

JOEL CO. GROUP PTY LTD (Migration) [2020] AATA 5911 (9 December 2020)
DECISION RECORD
DIVISION:  MIGRATION & REFUGEE DIVISION
APPLICANT:  JOEL CO. GROUP PTY LTD
CASE NUMBER:  1812692
HOME AFFAIRS REFERENCE(S):          BCC2017/1116466
MEMBER:Jane Bell
DATE:9 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 09 December 2020 at 11:55am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Graphic Pre-press Trades Worker – future employment of the nominee – financial capacity to maintain nominee’s full-time salary for at least 2 years – financial documents provided – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 360
Migration Regulations 1994 (Cth), r 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 Home Affairs on 16 April 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 22 March 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(3)(d) of the Regulations because the evidence failed to demonstrate that the applicant had the financial capacity to meet all employment obligations in respect of the nominee on a full time basis for at least the next 2 years.
The applicant was represented in relation to the review by its registered migration agent.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the 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 information in the Department’s file, the Tribunal is satisfied that the nomination was made on the approved online form, that the prescribed fee has been paid and that the relevant written certification has been provided as part of the application that it had not engaged in conduct that contravenes s.245AR(1) of the Act.
The Tribunal is also satisfied on the evidence in the Department’s file that the application for approval identified Youngmin Lee as the relevant person who holds a Subclass 457 visa granted on the basis of satisfying cl.457.223(4) of Schedule 2 to the Regulations and identifies the occupation of Graphic Pre-press Trades Worker in relation to the position that is listed in ANZSCO as 392211 and has the same 4 digit occupation unit group code as the occupation carried out by the Subclass 457 visa holder.
There is documentary evidence that the nominee is under the nominator’s direct control including Employment Agreements to work in the nominated position as a paid employee dated 13 March 2017 and 6 November 2020 between the director of the nominator, and the nominee, as well as an Organisational Chart showing the nominee reporting directly to the director.
Therefore, the Tribunal is satisfied that there is sufficient evidence that the nomination identifies a genuine need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominator’s direct control.
Given the above findings, the requirement in r.5.19(3)(a) is 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’s file indicates that the nominator was previously approved as a standard business sponsor from 14 January 2015 to 17 January 2018 for a period of 3 years.
A nomination application under r.2.72 was approved on 14 January 2015 that identified Youngmin Lee as the nominee, and nominated the occupation of Graphic Pre-press Trades Worker.
The Tribunal is satisfied that the nominator is the standard business sponsor who last identified Youngmin Lee as the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act.
The Tribunal is further satisfied that the nominator was 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).
The Tribunal has current information as evidence that the nominator is actively and lawfully operating a business in Australia including:
AAT File
·ABN Lookup submitted by the applicant, active from 9 May 2007;
·ASIC Company extract submitted by the applicant – ABN 68125308232 dated 26 October 2020 with its status registered with a review date of 9 May 2021;
·ASIC Current & Historical Company Extract dated 27 October 2020;
·2019 Joel Co Group Pty Ltd Financials;
·2018 Joel Co Group Pty Ltd Financials;
·Business Activity Statements dated 2017, 2018 and 2019;
·Employment Agreement dated 6 November 2020;
·Organisation Chart & Position Description;
·Reference Photographs, Printing Job Schedule, emails between the applicant and clients;
·Standard Business Sponsorship letter from Home Affairs, Trainings receipts: 2016, 2017 and 2018 & Financial Statements: 2016, 2017 and 2018; and
·Organisation chart lists the nominator Sae Yong Park as the Director and the nominee as Graphic Pre-press Trades Worker full time.
DHA file
·2016 Financial Statements;
·2016 Company Tax Return;
·ASIC extract dated 23 March 2017;
·Employment Agreement between the nominator and nominee dated and signed on 13 March 2017;
·PAYG statements dated 2016;
·ABN Lookup;
·Staff Training Plan dated 13 March 2017;
·NAB Business Bank Statements dated 2016;
·Business Activity Statements dated 2016 and 2017;
·Contract for the sale of land dated 13 February 2017;
·Letter from the applicant dated 13 March 2017 addressing the need for the position & Job Description;
·Letter from the applicant addressing the need of overseas employees;
·Training receipts paid to Sydney (TAFE);
·Employment Certificate dated 13 March 2017 for period 17 January 2015 to present;
·Work samples, photographs, careerone exerts, letters from the department;
·Organisation chart & Company’s bank statements;
·2017 Company Tax Return & Financial Statements;
·Nominee’s AMP Superannuation Portfolio report dated 21 March 2018;
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 2 of the 3 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 2 years in the 3 years immediately before the application.
The Tribunal has reviewed the occupations specified in IMMI 13/067 for the purposes of r.5.19(3)(c)(ii) which appears as the second dot point above and is satisfied that the nominated occupation of Graphic Pre-press Trades Worker is not included in the list. Accordingly, the applicant must meet the requirements of r.19(3)(c)(i) which appears as the first dot point above.
The Tribunal is satisfied on the evidence before it that:
·The nominator runs a business where the principal activity is providing graphic design including ink cartridges and toner products. Its business address is Unit 6, 71 83 Asquith Street, Silverwater NSW 2017;
·The nominator has been running the business since 9 May 2007;
·Mr Youngmin Lee is the only Graphic Pre-press Trades Worker employed at the business. There are 4 employees. In addition to the nominee, there are 2 Australian citizens and 1 permanent resident. The nominator pays the employees fortnightly by electronic transfer of funds;
·Mr Youngmin Lee has only held one 457 visa from 17 January 2015 to 17 January 2019 for a period of 4 years in the position of Graphic Pre-press Trades Worker – ANZSCO 392211. In his application the nomination type is listed as “Temporary Residence Transition” stream;
·There is evidence of Mr Youngmin Lee’s PAYG Payment Summaries noting the payer as the nominator;
·The nominee has been employed full time as a Graphic Pre-press Trades Worker since January 2015 after receiving his Subclass 457 visa and has worked continuously in the business in the same role since this date and still works in the business. The nomination application was made on 22 March 2017 which demonstrates that the nominee worked in the position while holding a Subclass 457 visa for at least 2 years prior to the nomination application as required by r.5.19(3)(c)(i).
The Tribunal has had regard to the nominee’s PAYG Payment Summaries noting the payer as the nominator, the nominee’s Employment Agreements dated 13 March 2017 and 6 November 2020, the nominee’s Position Description and ATO Business Activity Statements for 2016, 2017, 20218 and 2019.
On the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia by the nominator in the position of Graphic Pre-press Trades Worker for at least two of the three years preceding the nomination application.
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 2 years on terms that do not expressly preclude the possibility of an extension.
The nominee has been employed full time as a Graphic Pre-press Trades Worker with the nominator since January 2015 after receiving his Subclass 457 visa and has worked continuously in the business in the same role since this date and still works in the business as evidenced by his PAYG Payment Summaries.
The Tribunal has before it a copy of employment contracts signed by a director of the nominator and the nominee dated 13 March 2017 and 6 November 2020. The latest contract states that the nominator will provide permanent full time employment for the nominee in the position of full time Graphic Pre-press Trades Worker at a salary of $58,000 per annum plus 9.5% superannuation for a duration of 2 years from the date of the grant of the nominee’s visa.
There is also a statement dated 13 March 2017 from the nominator detailing the Position Description for the nominated position for Mr Youngmin Lee.
The Tribunal notes that the Department was not satisfied that this criterion was met because the nominator had not provided evidence to demonstrate that it had the financial capacity to pay the nominee his salary, which at the time was $55,000 per annum plus 9.5% superannuation, and had not demonstrated that it could provide at least 2 years of full time employment to the nominee in the nominated position.
The Tribunal has considered evidence contained in the Department file together with recent additional documentary evidence provided by the nominator to the Tribunal regarding its financial capacity including:
·the nominee’s Employment Agreements dated 13 March 2017 and 6 November 2020;
·the nominators financial information for 2016, 2017, 2018 and 2019;
·company tax returns for the years ending 2017, 2018, 2019;
·ATO BAS Statements for the financial years ending 2016, 2017, 2018 and 2019; and
·the nominee’s PAYG payment summaries.
After reviewing the above documents, particularly recent 2019 and 2018 Trading, Profit and Loss statements and Balance Sheets, the Tribunal is satisfied that the nominator has increased its sales each year in recent years, with the latest sales for the financial year 2019 being $433,833 and the net profit being $23,749 and sales for the financial year 2018 being $418,034 and the net profit being $19,337 after all expenses have been paid, including wages, superannuation and Workcover payments. The Tribunal is further satisfied that the nominator’s wage payments clearly exceeded the nominee’s salary for the last 3 years as evidenced by the financial statements for the financial years ending 2017, 2018 and 2019 and the ATO BAS statements provided.
Based on the documentary evidence provided on behalf of the nominator, including the nominee’s Employment Agreements dated 13 March 2017 and 6 November 2020, the nominator’s financial information for 2016, 2017, 2018 and 2019, company tax returns for the years ending 2017, 2018, 2019 and ATO BAS Statements for the financial years ending 2016, 2017, 2018 and 2019, the Tribunal is satisfied that the nominator remains financially capable of continuing to employ the nominee in his full time position on a salary of $58,000 per annum plus superannuation for at least 2 years.
Furthermore, the terms and conditions of the nominee’s employment do not and will not expressly exclude the possibility of extending the period of employment.
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.
The Tribunal has evidence before it including the nominator’s Organisation Chart showing that Youngmin Lee is the only Graphic Pre-press Trades Worker employed by the nominator. Youngmin Lee is one of 4 employees, 2 of whom are Australian Citizens and 1 is a permanent resident.
The nominee’s latest Employment Agreement dated 6 November 2020 for the nominated position provides for a salary of $58,000 per annum plus 9.5% superannuation. The Tribunal has information before it, including recent salary surveys and online research for the position. As at 7 December 2020, Payscale stated that an average Graphic Pre-press Trades Worker’s salary in Australia is $56,154 per annum. The Tribunal is satisfied that the nominee’s salary is in accordance with contemporary market rates and within the range of Graphic Pre-press Trades Worker in the same location.
The Tribunal is satisfied that the Employment Agreement for the nominee has standard provisions relating to annual and sick leave and other terms and conditions of employment that are consistent with those in the Fair Work Act 2009 (Cth) and National Employment Standards.
Given the above, the Tribunal is satisfied that the terms and conditions applicable to the nominated position are no less favourable than those that are/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 applicant 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 applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The applicant was most recently approved as a standard business sponsor for a period of 3 years on 14 January 2015 to 14 January 2018.
As part of the sponsorship approval, the applicant undertook to meet Training Benchmark A which required the applicant to contribute at least 2% of its payroll expendiure of the business towards the training of its employees.
Since the Department reviewed this matter, the Tribunal has received from the applicant invoices and receipts for payments for training of Australian employees from 2015 to date.
Payroll expenses (including wages and superannuation) incurred from 14 January 2015 to 14 January 2016 amounted to $112,183. The applicant incurred applicable expenditure for the provision of training for its employees during the 2016 financial year of $2,683 for training. This payment amounts to greater than 2% of the applicant’s payroll expended for this period. The Tribunal is satisfied that the applicant fulfilled its commitments for Training Benchmark A for the period 14 January 2015 to 14 January 2016.
Payroll expenses (including wages and superannuation) from 14 January 2016 to 14 January 2017 amounted to $161,056.The applicant incurred applicable expenditure for the provision of training for its employees during the 2017 financial year of $2,989 and on 14 March 2016 paid $2,200 to the TAFE NSW, Sydney Institute: Printing & Graphic Arts Scholarship Fund. Together these payments amount to greater than 2% of the applicant’s payroll expended for this period. The Tribunal is satisfied that the applicant fulfilled its commitments for Training Benchmark A for the period 14 January 2016 to 14 January 2017.
Payroll expenses (including wages and superannuation) from 14 January 2017 to 14 January 2018 amounted to $122,280.The applicant incurred applicable expenditure for the provision of training for its employees and on each of 28 February 2017 and on 1 March 2017 paid $2,200 to the TAFE NSW, Sydney Institute: Printing & Graphic Arts Scholarship Fund. Together these two payments amount to $4,400 which is greater than 2% of the applicant’s payroll expended for this period. The Tribunal is satisfied that the applicant fulfilled its commitments for Training Benchmark A for the period 14 January 2017 to 14 January 2018.
Therefore the Tribunal has evidence that the nominator has fulfilled its commitments made relating to meeting its training requirements during its standard business sponsorship period pursuant to Training Benchmark A, and complied with the applicable sponsorship obligations relating to the applicant’s training requirements during the period of the sponsorship approval.

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.
The Tribunal has reviewed the Department’s records and has not found anything to indicate that there is any adverse information known to the Department about the nominator or a person “associated with” the nominator.
Accordingly, 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 applicant to have 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 has information from the Fair Work Ombudsman stating that there are no current records of investigations that had resulted in the application of an enforcement tool for the nominator.
There is nothing in the Department’s records to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
Accordingly, the requirement in r.5.19(3)(h) is 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.
Jane Bell
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.

[2020] AATA 5911

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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