M & I SAMARAS NO 1 PTY LTD & M & I SAMARAS NO 2 PTY LTD & M & I SAMARAS NO 3PTY LTD (Migration)

[2022] AATA 3235

M & I SAMARAS NO 1 PTY LTD & M & I SAMARAS NO 2 PTY LTD & M & I SAMARAS NO 3PTY LTD (Migration) [2022] AATA 3235 (10 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  M & I SAMARAS NO 1 PTY LTD & M & I SAMARAS NO 2 PTY LTD & M & I SAMARAS NO 3PTY LTD

REPRESENTATIVE:  Ms Cyril Gabito (MARN: 1383988)

CASE NUMBER:  1902180

HOME AFFAIRS REFERENCE(S):          BCC2017/1684366

MEMBER:P. Maishman

DATE:10 August 2022

PLACE OF DECISION:  Perth

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

Statement made on 10 August 2022 at 4:51pm

CATCHWORDS

MIGRATION – nomination of a position (employer nomination) – Temporary Residents Transition Nomination stream – occupation of Welder (First Class) – evidence of meeting training obligations – actively and lawfully operating a business in Australia – employed in the position for at least 2 years previously – terms and conditions of employment no less favourable – financial capacity to maintain the employment – training contracts of apprentices – decision under review set aside 

LEGISLATION

Migration Act 1958, s 360
Migration Regulations 1994, Schedule 2 cl 457.223; rr 1.13, 1.20, 2.59, 2.87, 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 Home Affairs on 11 January 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 11 May 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

3. In this case, the applicant 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 the applicant’s nomination did not satisfy reg 5.19(3)(f) of the Regulations because the delegate was not satisfied that there was any verifiable evidence to show that the business met its training obligations for the first and second years of its standard business sponsorship.

1. The Tribunal received substantially more information than was before the Department.

2. In reaching its decision 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.

3. The applicant was represented in relation to the review.

4. 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

5. 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 reg 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: reg 5.19(3)(a)

6. 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.

7. The Tribunal has had regard to the information of the Department's file as to the nomination and is satisfied that these requirements are met.

8. The application for approval was made online and the Department’s acknowledgement letter confirms the prescribed fee was paid. The online form includes the relevant s.245AR(1) written certification, and the applicant separately signed a certification on 8 May 2017. The application nominates Ernesto Pineda, to work in the occupation of Welder (First Class) (ANZSCO 322313). The applicant identified a need for it to employ Mr Pineda as a paid employee under the applicant’s direct control. Mr Pineda was granted a Subclass 457 visa based on satisfying cl.457.223(4).

9. Given the above findings, the requirement in reg 5.19(3)(a) is met.

   Status of the nominator: reg 5.19(3)(b)

10. 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.

11. The applicant gave the Tribunal a copy of its most recent sponsorship approval notice dated 21 June 2016 that confirms applicant was an approved standard business sponsor from 21 June 2016 to 21 June 2021. The applicant identified Mr Ernesto Pineda, the holder of a Subclass 457 visa, in its nomination. The applicant’s financial documents and business registration demonstrate the applicant is actively and lawfully operating a business in Australia. The applicant does not operate a business outside Australia.

12. The Tribunal is satisfied that the applicant is a standard business sponsor whose most recent sponsorship was approved on 21 June 2016 and is valid until 21 June 2021. The Tribunal is also satisfied from the detailed documents provided to it, including the applicant’s recent financial statements and its current ASIC and ABN registration, that it is actively and lawfully operating a business in Australia.

13. The Tribunal is further satisfied that the applicant’s business was not granted its most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

14. Given the above, the requirement in reg 5.19(3)(b) is met.

    Previous employment of the nominee: reg 5.19(3)(c)

15. Broadly speaking, to meet the requirement in reg 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.

16. The nominee commenced employment with the applicant on 15 October 2012. The applicant has provided to the Tribunal evidence (including payroll activity statements, and PAYG Payment Summaries since 2013) that confirms the nominee has been employed in the position since 2013. The evidence before the Tribunal confirms that the nominee has worked in a full-time capacity in the position of Welder, for the applicant, for a period of two years whilst holding a Subclass 457 visa. This nomination was lodged on 11 May 2017.

17. On the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the relevant position for at least 2 years in the 3 years before the nomination was made. The requirements of r.5.19(3)(c)(i) are therefore satisfied.

18. Given the above findings, the requirement in reg 5.19(3)(c) is met.

    Future employment of the visa holder: reg 5.19(3)(d)

19. Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 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.

20. The employment contract entered into by the applicant and nominee on 20 June 2016 undertook to employ the nominee, as a subclass 457 visa holder, for four years. The parties entered into a subsequent employment agreement on 8 May 2017 to employ the nominee for a minimum two years from the approval of his Regional Sponsored Migration Scheme (RSMS) application.

21. The Tribunal is satisfied the nominee is the nominee described in reg 5.19(3)(c)(i); the applicant has the financial capacity to employ the nominee full time for the next two years; and the employment contract provides the nominee will be employed for two years with the possibility of extension and the terms and conditions of employment does not expressly exclude the possibility of extending the period of employment.

22. Given the above findings, the requirement in reg 5.19(3)(d) is met.

    No less favourable terms and conditions of employment: reg 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 contract of employment provided to the Department indicates that it will commence on the approval of the nominee’s RSMS visa and that his salary will be $58,273.81 exclusive of superannuation. The company has entered into an Enterprise Bargaining Agreement in relation to these employees and their salaries are above the applicable award wage. The nominee’s proposed salary ($58,273.81) is commensurate with the salaries that are being provided to Australian citizens and permanent residents performing equivalent work in the same workplace as the nominee, and at the same location.

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

    Training commitments and obligations: reg 5.19(3)(f)

26. 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.

27. The Tribunal received a notice of the Department’s decision confirming the applicant was approved as a Standard Business Sponsor from 21 June 2016 to 21 June 2021. The Tribunal finds the period of the applicant’s most recent sponsorship approval is for five years from 21 June 2016 to 21 June 2021.

28. Regulation 5.19(3)(f)(i) requires the applicant to demonstrate that it has fulfilled the commitments made as a standard business sponsor in relation to training. The Tribunal notes that at the time this application was made, these obligations were set out in reg 2.87B(2) of the Regulations. The obligations under reg 2.87B(2) were to comply with requirements relating to training as set out in an instrument in writing for each 12-month period of its sponsorship approval. Regulation 2.87B(5) provides the obligation ends after three years.      

29. The training benchmarks and training requirements are specified in Instrument IMMI 13/030 – Specification of Training Benchmarks and Training Requirements. The training benchmarks for an established business are:

    (A)recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or

    (B)recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business who are Australian citizens or Australian permanent residents.

30. The delegate was not satisfied the applicant has, since the sponsorship approval, fulfilled their training obligation in each sponsorship year.

31. In order to meet either Benchmark A or B, the applicant is required to establish the payroll of the business in the relevant period. It is necessary to consider the meaning of “the payroll of the business” for this requirement. The Department’s policy contained in its Procedures Advice Manual (PAM3) states that for this requirement, payroll expenditure includes any wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions or eligible termination payments, defined as wages in the Act relating to payroll tax in the relevant state/territory, that the applicant has paid to their employees during the relevant 12-month period.

32. The Tribunal notes that expenditure that can count towards Training Benchmark B includes payments to cover the salary of Australian employees engaged by the business as apprentices or trainees under a formal training contract. The applicant provided the Tribunal with training contracts of apprentices (who are Australian citizens or permanent residents) during the period of the applicant’s most recent standard business sponsorship. The Tribunal has considered these documents together with the financial documentation for the applicant. Based on this evidence, the Tribunal is satisfied that these apprentices have been employed in the manufacture and construction of steel, which is the purpose of the business.

33. Payroll expenses (including wages and superannuation) incurred for the financial year 1 July 2016 to 30 June 2017 amounted to $16,552,999. The apprentice payroll for the 2017 financial year is $226,710 and is more than 1% of the payroll of the business.  

34. Payroll expenses (including wages and superannuation) incurred for the financial year 1 July 2017 to 30 June 2018 amounted to $15,121,058. The apprentice payroll for the 2018 financial year is $241,252 and is more than 1% of the payroll of the business.    

35. The Tribunal is satisfied the applicant expended at least 1% of the payroll of the business to cover the salary of Australian employees engaged by the business as apprentices or trainees under a formal training contract.

36. The Tribunal finds the applicant meets Training Benchmark B during the first two periods of the  applicant’s most recent sponsorship approval and fulfilled its commitment made relating to meeting the training requirement from 21 June 2016 to 21 June 2018.

37. On 18 March 2018, amendments to the law occurred. Since 18 March 2018, there are no training obligations or commitments made for the purpose of satisfying the sponsorship criteria because the criteria in reg 2.59(d) and (e) of the Regulations with respect to meeting training benchmarks no longer applies. This means for the applicant’s standard business sponsor approval which commenced in 2016, reg 2.87B of the Regulations requires it to meet the training benchmark for the first two years of its approval but that it was exempt from complying with reg 2.87B for subsequent years which ended after 12 August 2018.

38. Based on the above evidence, the Tribunal is satisfied that the nominator has fulfilled its commitments made relating to meeting its training requirements during its sponsorship period pursuant to Training Benchmark B and complied with the applicable sponsorship obligations relating to the applicant’s training requirements during each of the periods of the sponsorship approval.    

39. Accordingly, the requirement in reg 5.19(3)(f) is met.

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

40. 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 regs 1.13A and 1.13B.

41. There is no evidence before the Tribunal which suggests that there is any adverse information known to the Department about the applicant or a person associated with the applicant.

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

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

43. 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.

44. The Tribunal finds there is no evidence before it to indicate the applicant does not have a satisfactory record of compliance with workplace relations laws in the location in which it operates a business and employs staff.

45. Accordingly, the requirement in reg 5.19(3)(h) is met.

46. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    P. Maishman
    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.