Latino Australia Education (Perth) Pty Ltd (Migration)

[2021] AATA 449

Latino Australia Education (Perth) Pty Ltd (Migration) [2021] AATA 449 (19 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Latino Australia Education (Perth) Pty Ltd

CASE NUMBER:  1820024

HOME AFFAIRS REFERENCE(S):          BCC2017/748149

MEMBER:Andrew George

DATE:19 February 2021

PLACE OF DECISION:  Darwin

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

Statement made on 19 February 2021 at 6:01pm

CATCHWORDS

MIGRATION – application for approval of nomination of position – financial capacity to pay full-time salary for two years – visa applicant employed for more than two years since delegate’s decision – financial statements for last three years provided to tribunal – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 360(2)(a)

Migration Regulations 1994 (Cth), r 5.19(4)(d)(i)

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 20 June 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 on 24 February 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. The nominated person is Ms Ana Maria Montoya Jimenez. The proposed occupation is Office Manager – 512111.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(d)(i) of the Regulations. Materially, the delegate found:[1]

   Taking all of the information into account, I find that the applicant has not demonstrated that the business has the financial capacity to pay the full time salary for the nominated position for at least two years. Therefore, I find that the applicant has not demonstrated that the nominee will be employed on a full time basis in the position for at least two years.

   [1] Notice of Decision/6.

5. On 22 January 2021, the Tribunal invited the applicant to a hearing on 25 February 2021. In compliance with paragraphs 6.7 and 6.12 of the practice directions, the applicant lodged an indexed and paginated bundle of documents in preparation for the hearing (the ‘Hearing Bundle’). Upon review of these documents, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. The applicant was represented by Mr Antony Wallace of I-Migration Pty Ltd.

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 a paid employee to work in the position under their direct control.

10. The Tribunal has before it a copy of the application, generated on 24 February 2017 at 13:20:00 EST. From that document, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the fee prescribed in r.5.37. The Tribunal also notes that the application includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1).

11. The application was accompanied by a Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, dated 16 February 2017. The advice contained in this document is of substance as the Regional Certifying Body is the State of Western Australia, through Skilled Migration WA in the Department of Training and Workforce Development. The Tribunal affords this advice the weight to be expected of the Crown in right of one jurisdiction advising the Crown in right of another. It is not to be disregarded lightly.

12. Materially, the Regional Certifying Body Advice is that the nomination satisfies the following requirements:

    As a body approved by the Minister for Immigration and Border Protection (in an instrument in writing) for the purposes of regulation 5.19 (4) I have assessed the nomination referred to in this document against the following requirements:

    ·there is a need for a paid employee in the nominated position within the business activities of the nominating employer;

    ·the nominated position cannot be filled by an Australian citizen or Australian permanent resident who is living in the same local area as the nominated position; and

    ·the terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the same workplace at the same location.

13. There is no evidence before the Tribunal that contradicts this advice. Accordingly, the Tribunal is satisfied that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. The requirement in r.5.19(4)(a) is therefore met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

14. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. The Tribunal accepts Ms Jimenez’s letter dated 18 February 2018 that she is a director of the applicant and that it is an education and agency, which has long been providing advice to students who want to study in Australia.[2] Ms Jimenez’s evidence is broadly consistent with the submitted Australian Business Register and Australian Securities and Investment Commission documentation.[3] Having also noted the signed financial statement for the year ended 30 June 2020,[4] the Tribunal is satisfied that the applicant is directly, actively, and lawfully operating a business in Australia. Accordingly, the requirement in r.5.19(4)(b) is met.

    [2] Hearing Bundle/5.

    [3] ibid/7-9.

    [4] ibid/63-79.

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

15. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business, however there is no indication that the nominator is 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)

16. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least two years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. This is the ground upon which the nomination was initially refused.

17. The Tribunal notes that over two years have transpired since the delegate’s decision. The nominated person has been employed by the applicant since 2017.[5] She has been remunerated $55,000 per annum during this time,[6] without any express exclusions of an extension.

    [5] ibid/91.

    [6] ibid/18; Employment contract, executed 26 August 2016.

18. The Tribunal appreciates the detailed reasoning of the delegate regarding the applicant’s financial capacity. However, the transpiration of time has proven this decision incorrect. Given the healthy 2018, 2019, and 2020 financial statements before the Tribunal,[7] the Tribunal does not share the delegate’s concerns as at the present date. Accordingly, the requirement in r.5.19(4)(d) is met.

    [7] ibid/24-85.

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

19. 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.

20. The Tribunal accepts Mr Wallace’s written submissions,[8] as supported by the labour market testing evidence.[9] The Tribunal notes that no Australian citizen or permanent resident is employed in a comparable position in the applicant’s business. The Tribunal accepts the Regional Certifying Body’s advice, as contained in paragraphs [11] to [13] above. On the evidence before it, the Tribunal is 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 requirements of r.5.19(4)(e) are met.

    [8] ibid/2.

    [9] ibid/21-24.

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

21. 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.

22. There is no evidence before the Tribunal of any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator. Accordingly, the requirements of r.5.19(4)(f) are met.

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

23. 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.

24. There is no evidence before the Tribunal of any breaches of any workplace relations laws by the applicant in the locations in which it operates a business and employs staff. Accordingly, the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position r.5.19(4)(h)

25. Regulation 5.19(4)(h) contains several alternative requirements. These are set out in detail in the attachment to the decision.

26. The Tribunal notes its findings in paragraphs [11]-[13] and [20] above, and is satisfied that:

    a.the position and business is located in ‘regional Australia’ and that a Regional Certifying Body located in the same State as the position, being Western Australia, has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C);

    b.there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control; and

    c.the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

27. The Tribunal has considered whether the tasks to be performed in the position correspond to the tasks of an Office Manager – 512111. The Tribunal accepts Ms Jimenez’s evidence to this end,[10] noting also that the nominated person’s curriculum vitae is consistent with the tasks enumerated in ANZSCO.[11] For completeness, the Tribunal also accepts that the nominated person’s Diploma of Leadership and Management is consistent with a Skill Level 2 position.[12]

    [10] ibid/5.

    [11] ibid/91-93.

    [12] ibid/94.

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

29. 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

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

    Andrew George
    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.

    …

    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)       both 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;

    (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 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).