Louenhide Pty Ltd (Migration)

[2018] AATA 3247

Louenhide Pty Ltd (Migration) [2018] AATA 3247 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Louenhide Pty Ltd

CASE NUMBER:  1712544

DIBP REFERENCE(S):  BCC2016/3286845

MEMBER:Ian Berry

DATE:17 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 17 July 2018 at 1:40pm

CATCHWORDS
Migration – Employer Nomination – Approval of nomination – Temporary Residence Transition nomination stream – financial capacity to pay nominees salary – standard business sponsor – previous full time employment of nominee – profitable business – salary – extra benefits – funds for staff training – satisfactory record of compliance – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 245AR
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19

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 26 May 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 (Regulations).

2. The applicant, Louenhide Pty Ltd (Louenhide), applied for approval on 4 October 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).

3. In this case, Louenhide has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis Louenhide’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because Louenhide had not demonstrated that it had the financial capacity to be able to pay the full-time salary for the nominated position for at least the next 2 years.

5. Louenhide appeared before the Tribunal on 24 May 2018 to give evidence and present arguments. The Director, Mr Kendall, gave evidence.

6. Louenhide was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

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

   The Issues

   ·Has Louenhide now demonstrated that it had the financial capacity to pay the salary of its nominee for at least 2 years?

   ·If the answer is yes, then does it satisfy all the requirements outlined in r. 5.19(3)?

   Is the application compliant as required by r.5.19(3)(a)

8. 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) of the Migration Act 1958 (Act). The application must also identify a relevant person and occupation.

9. The Departmental file does not indicate Louenhide has not paid the requisite fee on the relevant form.

10. The departmental and Tribunal files do not contain any information of the nominator having engaged in conduct (concerning the nomination) that contravenes s. 245AR(1), however the requirement is for Louenhide to provide a certification in writing

11. The application nominated Selika Thapa who is identified as a 457 (Business (Long Stay)) visa holder at the time of the application and now.  The position identified was a sales and marketing manager ANZSCO 131112.

12. The Tribunal is satisfied that the requirement in r.5.19(3)(a) is met.

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

13. 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.

14. Departmental records confirm Louenhide having been a standard business sponsor, which is actively and lawfully operating a business in Australia.

15. The nominator provided details extracted from ASIC that show details of Louenhide Pty Ltd ABN 87 131 591 109. There is not any evidence to suggest the nominator was granted the most recent business sponsorship on the basis of meeting 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)

16. 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 she 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.

17. Documents on the Tribunal and Departmental files contained a statement from Louenhide Pty Ltd that the nominee Ms Selika Thapa has been employed as a full-time sales and marketing manager from 2014 until the present time.  Ms Selika Thapa is the holder of a 457 (Business (Long Stay)) visa at the time of the nomination application.

18. 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)

19. Regulation 5.19(3)(d) applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of persons, the regulations require the nominee to have been employed on a full-time basis for at least 2 years in the on terms that do not expressly exclude the possibility of an extension.

20. The nominator has provided a contract of employment of full-time employment as a sales and marketing manager for Ms Selika Thapa that lasts for at least 2 years from 16 March 2018.  The position identified was that of a sales and marketing manager ANZSCO 131112.

21. The delegate raised concerns about losses sustained within the financial statements. Both Mr Kendall explained in detail the operations of Louenhide and its wholesale and internet partnership business. In past years, this business operated retail stores at major shopping centres. Rents, wages and profits were the factors leading to closing the retail arm of the business. The nominee, in her evidence at her visa hearing, gave some particularity as to the necessity for a decision to be made about the retail outlets. The Tribunal is satisfied that the business is profitable and had adjustments to make in ensuring it remains profitable. It is noted that Louenhide had depreciation amounts of approximately $50,000 and $80,000 in 2013 and 2014, which is actual cash terms increases the actual profits by those amounts. For 2015, 2016 and 2017 depreciation amounts in “expenses” were respectively, $74,013, $62,798 and $51,291. Other than for 2015, Louenhide had substantial profit of at least $200,000 and $500,000 for 2016 and 2017 respectively.

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

    No less favourable terms and conditions of employment: r.5.19(3)(e)

23. 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.

24. The nominator provided a copy of an employment contract between it and the nominee commencing 16 March 2018 for a period no less than 2 years.  This employment agreement provided for payment of $53,900 per annum plus superannuation.  The contract was for full-time work as a sales and marketing manager at the nominator’s headquarters in Brisbane.  The employment agreement provided for a 38 hour week, overtime to be paid consistent award, annual leave, sick leave, parental leave and long service leave. 

25. Salary data provided by Louenhide includes a Digital Marketing and Web Projects is between $55,000 and $65,000 plus superannuation[1]; Digital Marketing client manager has a salary range between $45,000 and $60,000[2].

    [1] T1, folio 113.

    [2] T1, Folio 111.

26. The nominee stated in evidence at her visa application hearing, of her employer nominator providing extra benefits for which she was grateful. She is a young mother with a child and received educative assistance and other benefits. Notwithstanding, the salary is within range.

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

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

28. Regulation 5.19(3)(f) requires Louenhide 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.

29. Louenhide provided receipts for monies paid to training organisations and  detailed submission as to the fulfilment of its commitment[3]. It has met its training obligations the evidence of which was provided to the Department. There is not an issue raised by the Department concerning the fulfilment of its obligations.

    [3] T1, folio 178

30. For the years 2016 and 2017, Louenhide allocated $6,050 to staff training in 2017 to meet training benchmark B (1% of the payroll)[4].

    [4] T1, folio 178 (paragraph 8). Training Benchmark.

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

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

32. 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.

33. There is no evidence before the Tribunal to suggest that there is any adverse information known about Louenhide or its business.

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

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

35. Regulation 5.19(3)(h) requires Louenhide to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which Louenhide operates a business and employs employees in the business, relating to workplace relations.

36. There is no evidence before the Tribunal to suggest that Louenhide does not have a satisfactory record of compliance with workplace relations laws in Australia.

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

38. Based on the findings above, the Tribunal is satisfied that Louenhide meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Ian Berry
    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.