LIVE PRODUCTIONS AUSTRALIA PTY LTD (Migration)

[2019] AATA 3888

LIVE PRODUCTIONS AUSTRALIA PTY LTD (Migration) [2019] AATA 3888 (9 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Live Productions Australia Pty Ltd

CASE NUMBER:  1804697

DIBP REFERENCE(S):  BCC2017/2290900

MEMBER:Wan Shum

DATE:9 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2019 at 3:36pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Performing Arts Technician – training requirements met – at least 1% of payroll expenditure spent on training employees – nominee employed in occupation for at least two years – financial capacity to maintain nominee’s employment – nominee will be employed full-time for at least two years – possibility of extending employment – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140, 245AR
Migration Regulations 1994(Cth), rr 1.13, 1.20, 5.19, Schedule 2, cl 457.223(4)

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 Immigration on 7 February 2018 to reject an application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. 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).

3. In this case, Live Productions Australia Pty Ltd (the nominator) had applied for approval on 28 June 2017, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream in respect of Mr Benedict Deave. They had sponsored Mr Deave for a temporary residence Subclass 457 visa for the position of Senior Technician in 2014.

4. The delegate refused the application on the basis the nomination did not satisfy r.5.19(3)(f) of the Regulations because the nominator had not provided any evidence of meeting its training obligations and failed to respond to the delegate’s request to provide more information.

5. The Managing Director, Mr Ben Elliott, appeared before the Tribunal on 13 March 2019 to give evidence to an authorised person.

6. 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

7. 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.

8. Mr  Elliott gave evidence that the nominator designs and produces personalised staging services to live events such as conferences, exhibitions, launches, concerts, etc. It also supplies high-end rentals for audio, video, lighting and staging systems and equipment.

9. The following material has been provided on review:

   -A letter from Mr Elliott explaining the circumstances for not being able to respond to the delegate’s request

   -Current company extract dated 3 March 2019

   -Evidence of training records for 2016 to 2018

   -Employment contract dated 1 January 2017

   -Full time employment statement for the nominee dated 20 February 2019

   -Position description

   -Company structure chart

   -PAYG payment summaries for the nominee 2015 - 2018

   -Financial statements for 2016 and 2017

   -Company tax return 2016 and 2017

   -Business Activity Statement (BAS)s from April 2017 to September 2018

   -Further evidence of training undertaken by Australian employees

   -Financial statements for 2018

   -Company Tax Return 2018

   -Current employment contract

   -Copies of payslips of nominee for July 2014, July 2015, July 2016, July 2017, July 2018

   The application must be compliant: r.5.19(3)(a)

10. 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.

11. On the basis of the information in the Departmental file, the Tribunal is satisfied that the application was made on the relevant form and accompanied by the prescribed fee.

12. A written certification was provided in the form stating the applicant has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.

13. The application identifies Mr Benedict Deave who, according to Departmental records, held a Subclass 457 visa, granted on 3 November 2014, on the basis of satisfying cl.457.223(4) of Schedule 2. That visa ceased on 3 November 2018.

14. The occupation identified in the application is Performing Arts Technician (not elsewhere classified), which is listed in ANZSCO with a 4-digit occupation unit group code of 3995.

15. Given the above findings, the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

16. 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.

17. On the basis of the Department’s records and oral evidence given, the Tribunal is satisfied that the nominator was the standard business sponsor who last identified Mr Deave, the holder of the Subclass 457 visa, in a nomination made under s.140GB of the Act or under r.1.20G or 1.20GA (pre 14 September 2009).

18. Having considered the latest financial statements, business activity statements and business tax returns as well as oral evidence given, the website of the business and social media, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia.

19. The Tribunal notes the Department initially approved the applicant as a standard business sponsor from 17 September 2013 to 3 November 2014, and most recently approved the applicant as a standard business sponsor from 5 February 2016 to 5 February 2021. The information before the Tribunal indicates that the business sponsorship was not granted on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i) which are provisions relating to the operation of a business overseas.

20. Given the above, the requirement in r. 3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

21. 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.

22. As outlined above, the nominee was granted a Subclass 457 visa in November 2014 on the basis that he would work full-time in the Performing Arts Technician’s position. A selection of payslips for Mr Deave were provided with the earliest for July 2014, and the Tribunal was advised that he had started as a casual employee before becoming a permanent employee in November that year. The nominator has provided evidence that his employment in the position has continued to date.

23. On the basis of the employment contract, position description, employment statement, PAYG payment summaries, copies of payslips and oral evidence, the Tribunal is satisfied that the nominee has been employed full time in Australia in the position of Performing Arts Technician since November 2014.

24. Therefore, 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 this nomination application was made.

25. 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)

26. 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.

27. The Tribunal has before it the employment contract dated 2 January 2017, position description and full-time employment statement for the nominee. The employment contract indicates that the basis of employment is ‘permanent, full-time’ and the base gross salary was $65,000.  An updated version of the employment contract effective 1 January 2019 has essentially the same terms of employment but with an increase in base salary to $72,500.

28. The Tribunal has also had regard to the nominator’s financial statements, BASs and tax returns provided. The financial statements reveal that the nominator had a steady trading income of over $2.5 million each financial year between 2015 and 2018, and profits before tax varied from $664,759 to $921,743.

29. The Tribunal notes that the applicant’s company structure in 2019 lists seven full-time staff members including a managing director, technical director, operations manager, accounts, one AV technician and two senior AV technicians (one of the positions is held by the nominee). This structure is similar to the structure chart provided to the Department in 2017.  The wage expenses for the years 2015 to 2018 were $509,134, $524,796, $381,124 and $398,712 respectively.

30. As the related visa applicant has been nominated for an existing position, his employment does not affect the nominator’s overall payroll expenditure. Having considered the nominator’s recent financial performance, the Tribunal is of the view that there is nothing to suggest that it would not have the financial capacity to employ the nominee for another two years and meet all employment obligations.

31. The Tribunal is therefore satisfied that the applicant has the financial capacity to maintain the nominee’s employment as it has done since 2014.

32. On the basis of the contract and oral evidence, the Tribunal is also satisfied that the nominee will be employed on a full-time basis for at least two years on terms and conditions that do not exclude the possibility of extending the period of employment.

33. 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)

34. 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.

35. The nominee was granted his Subclass 457 visa in 2014 for the same position on a lower base salary. While the Department was satisfied that the base salary was no less favourable than that which would be provided to an Australian citizen or permanent resident performing equivalent duties in the same location at that time, it is necessary to consider whether the salary is no less favourable at the time of this decision.

36. In terms of the employment of other audio/visual (AV) technicians, the managing director advised that the nominator had sponsored three to date as it has been extremely hard to find the right people with the right skills locally. They advertised in 2014 and sponsored the nominee, a second technician was sponsored in 2015 (who left in 2017), and another technician was sponsored in 2017. The nominator currently employs a third AV technician who holds a working holiday visa.

37. Mr Elliott confirmed that all the AV technicians are paid around the same level, although none are Australians. The nominee was offered a pay rise in 2018 and 2019 as he has been an integral part of the business. There are an additional four full-time employees who are Australian citizens or permanent residents but they do not perform similar roles.

38. The nominator is relying on evidence that the terms and conditions are within the range that would be provided to an Australian for a similar role in the same location. According to Payscale.com.au, the average annual salary for an Audio/Visual Technician is $55,614 per year in Australia with salary ranging from $42,000 to $78,000.[1] The Tribunal has also had regard to job advertisements provided of similar positions advertised on seek.com.au, with the salary range for one position being $45,000 to $65,000 and another position from $60,000 to $65,000. As the position offered to the nominee is a senior position and is based in Sydney, which according to Payscale.com.au tends to be 7% higher than the national average salary for this occupation, the Tribunal would expect the salary offered to be on the higher end of the range.

    [1] (accessed 18 Jun 2019)

39. The nominee’s most recent Employment Contract indicates that he was offered $72,500 base salary per annum, working 40 hours per week from 1 January 2019. The Tribunal considers that this salary is consistent with the market rate for the nominated position having regard to the nature and size of the business.  The superannuation rate specified in the contract is 9.5%.

40. On the basis of the information before it, the Tribunal is satisfied that the nominee’s base salary is within the appropriate range of that normally paid to a performing arts technician/AV technician in Sydney. It thus finds 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

41. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

42. 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.

43. The delegate found that the nominator did not meet r.5.19(3)(f) of the Regulations as it did not provide any evidence to support its claim and failed to respond to the delegate’s request to provide more information.

44. Mr Elliott submitted that he was unable to respond to the delegate’s request for further information because he was on personal leave due to his brother’s death at the time. He was not checking his email as it was a very traumatic time, but his email address had an automated ‘out of office’ response.

45. As noted above, the most recent standard business sponsorship was approved from 5 February 2016 to 5 February 2021, which is the relevant period the Tribunal must consider. The commitment relating to meeting the training requirements must be fulfilled each year that the applicant is approved as a standard business sponsor and employs a Subclass 457 visa holder.

46. Mr Elliott has confirmed that in relation to past standard business sponsorship obligations, the nominator was obliged to spend the equivalent of at least 1% of the payroll expenditure in the provision of training employees of the business (Training Benchmark B).

47. Mr Elliott advised at the hearing that the nominator had been investing a large amount of time and money on training its employees as it is not easy to find suitable external training opportunities within this industry in Australia. The business did not itemise training expenses separately in its accounts until 2017-18 when a new record keeping practice for training was established.

48. According to the Profit and Loss Statement for the year ending 30 June 2018, staff training expenditure of $7,902 was recorded against payroll expenditure (wages plus superannuation) of $436,563. Although the Tribunal notes that the applicant spent $133,697 on subcontractors during this period, the expenses were recorded under the cost of sales for ‘event subcontractors’ only, therefore were not counted towards the payroll expenditure.     

49. Mr Elliott gave evidence that the nominator providers regular in-house training throughout the year for its staff, including supplier based training days and ongoing training for audio/visual equipment. The Tribunal accepts given the nature of the business that there is regular training of employees in using the equipment and that it may be reflected in a specific monetary/recordable expense. Nonetheless, this training cannot be counted for the purposes of assessing whether the training obligations have been met.

50. The nominator has provided a summary of the external training courses undertaken by its Australian employees from February 2016 to March 2019. The summary covers information such as the training provider, subject, outcome, progress/outcome monitoring, date(s), attendee(s), trainer and total cost. Copies of the associated invoices were provided in support of the claims.

51. Based on the summary table and invoices provided, the total expenditure on external training courses for Australian employees was $8,316.08 against payroll expenditure of $470,985.54 (around 1.7%) from February 2016 to January 2017. From February 2017 to January 2018, training expenditure amounted to $5,200 against payroll of $373,823.61 (1.4%) and from February 2018 to January 2019, training expenditure of $7,902 against payroll of $481,223.07 (1.6%). The training expenditure for 2018 to 2019 includes $1,000 for truck driving. A PAYG payment summary for a part-time employee who received training to obtain a truck driver’s licence in order to transport the equipment for the business was provided. Even if this is excluded, the percentage would still be 1.4%. An invoice from AV Alliance indicates that it was for the 2017 calendar year, but it is not clear when the training was delivered to the employees of the business. Mr Elliott’s evidence is that the training was undertaken on 6 April 2017, 24 April 2017 and 5 and 6 October 2017, which the Tribunal accepts.          

52. On the basis of the written and oral evidence before it, the Tribunal is satisfied the nominator has fulfilled the commitments relating to training requirements during the period of its most recent approved sponsorship period.

53. Accordingly, the requirement in r.5.19(3)(f) is met.

    No adverse information known to Immigration: r.5.19(3)(g)

54. 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. 

55. There is no evidence before the Tribunal that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.

56. Accordingly, the requirement in r.5.19(3)(g) is met.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

57. 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.

1. There is no evidence before the Tribunal to indicate that the nominator has not complied with workplace relations laws. While the 2017 employment contract did not have the correct superannuation rate, the payslip provided that fell within that period indicates that a rate of 9.5% was paid to the related visa applicant.

2. Accordingly, the requirement in r.5.19(3)(h) is met.

   Conclusion

3. 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

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

   Wan Shum
   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.