M.J MCCRUDDEN & K THOW (Migration)

[2019] AATA 6029

M.J MCCRUDDEN & K THOW (Migration) [2019] AATA 6029 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  M.J MCCRUDDEN & K THOW

CASE NUMBER:  1719392

DIBP REFERENCE(S):  BCC2017/2336462

MEMBER:S. Jones

DATE:13 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2019 at 11:23am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition – Motor Mechanic – financial capacity to employ nominee full-time for two years – evidence of Training Benchmark A payments provided – nominee previously employed full time in position for two years – possibility of employment extension not precluded – decision under review set aside

LEGISLATION
Fair Work Act 2009
Migration Act 1958 (Cth), ss 140GB, 245AR(1), 359(2)
Migration Regulations 1994 (Cth), rr 5.19, 1.13

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 8 August 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 (the Regulations).

2.The applicant applied for approval on 30 June 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 (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, 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 r. 5.19 (3)(d), r. 5.19 (3)(f)(i)(A) and r.5.19 (3)(f)(i)(B) of the Regulations because the applicant failed to provide any supporting documents or verifiable evidence:

(a)to confirm the terms and conditions of the proposed employment or that the business has the financial capacity to provide a permanent, full-time position to the  nominee for at least two years as required by r. 5.19 (3)(d);

(b)to demonstrate expenditure amounting to at least 2 % of payroll in training expenditure for Australian employees in accordance with r.5.19 (3)(f)(i)(A); and

(c)to demonstrate that they have fulfilled any commitments made in relation to meeting the training requirements during the period of their most recent approval as a standard business sponsor in accordance with r.5.19 (3)(f)(i)(B).

On 23 May 2019, the Tribunal wrote to Mr McCrudden via the agent, pursuant to s.359(2), to invite him to provide updated and current information demonstrating that the applicant met all of the criteria in r.5.19(3). The Tribunal provided examples of the kinds of information that would assist it to assess the criteria in r.5.19(3) and noted that all of the criteria had to be met in order for the Tribunal to set aside the refusal decision and substitute a decision to approve the nomination.

5.The applicant’s agent requested an extension to respond and on 20 June 2019 and submitted various documents. In addition, the applicant was granted extra time at the hearing to provide additional material in support of the application including the  following:

• ASIC company current extract

• Registered business certificate  

• Financial statements, for the financial years ending 2017, 2018 and 2019 prepared by an accountant, including profit and loss statement and balance sheet

  • Business Activity Statements for quarters between July 2016 and July 2019
  • Company bank statements, including statements in FY2018 and  FY2019
  • Merchant statements
  • Current organisational chart
  • Position description for the nominated occupation of motorcycle mechanic
  • Bank Statements of the nominee for 2014 – 2019 as evidence of the nominee income and expense including wages and that the nominee was employed full time in the position for which he held a Subclass 457 visa for 2 of the 3 years preceding the nomination application made on 30 June 2017 and
  • Employment contracts for nominee (2017 and renewal 2019)
  • Motor Mechanics Job outlook  ANZSCO 3212
  • ANZSCO occupation description from
  • Roles and duties of the nominated position and how they correspond to the ANZSCO Code 321211.occupation description
  • Work reference letter with nominee’s detailed work duties
  • Data from to show that an Australian full-time motor mechanics’ average salary with standard employment conditions is $1000 per week or $52,000 p.a.
  • The  nominee’s:

  (a)  PAYG Summary for 2015, 2016, 2017 and 2019

  (b)  ATO Notice of Assessment for 2015, 2016, and 2017

  (c)   Superannuation statement commencing 2014, 201, 2016, 2017

  (d)  Weekly salary pay statements for August 2019

  • Training benchmark payments

6.On behalf of the applicant, Mr Mike McCrudden (1 of the 2 partners in the applicant business) appeared before the Tribunal on 26 July 2019 to give evidence and present arguments.

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

8.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

1. 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)

1. 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.

2. On the basis of the information in the Department‘s file, the Tribunal is satisfied that the applicant was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.

3. The application for approval identifies Mr Jaiwei FAN, the nominee who, according to Departmental, records, holds a Subclass 457 (Temporary Work (Skilled)) visa valid from 30 June 2017. The occupation identified in the application is a ‘Motor Mechanic’ (General) (ANZSCO 321211).

4. The Tribunal is satisfied based on the employment and other documents for the nominee that the occupation identified is the same occupation as that carried out by him as the holder of the Subclass 457 visa. 

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

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

1. 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.

2. Department records confirm that the nominator was the standard business sponsor who last identified Mr. FAN, the nominee, in the nomination under s.140GB of the Act. The nominator was approved to be a standard business sponsor on 21 July 2012.

3. The applicant’s Representative advised the Tribunal that the applicant is a small business operating as “Glenlyon Motors” in Melbourne, Victoria. As the applicant is a partnership, the nominee is the only employee working in the business other than Mr McCrudden and a part-time bookkeeper. The Financial Statements provided confirm this situation.

4. The Tribunal has been provided with current information as evidence that applicant is actively and lawfully operating a business in Australia, including ASIC company current extract, registered business certificate, Financial Statements for the financial years ending 2017, 2018 and 2019, Business Activity Statements for the quarters between July 2016 and July 2019, the applicant’s business bank statements, including statements in FY2018 and  FY2019, and merchant statements showing transactions for work undertaken by the applicant business.

5. The Tribunal has also had regard to Departmental records and is satisfied that the applicant 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).

6. Given the above, the requirement in r.5.19(3)(b) is met.

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

1. 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.

2. In this case, r.5.19(c)(i) is the relevant provision. The nomination was lodged on 30 June 2017. The relevant 3-year period is therefore 29 June 2014 to 29 June 2017. At the hearing, Mr McCrudden advised that the nominee was initially employed by the applicant in 2012 / 2103 on a casual basis and then formally from 2014 when his Subclass 457 visa was granted. The nominee was granted a Subclass 457 visa on 26 June 2014 to work in the nominated occupation as Motor Mechanic for the nominator.

3. Evidence provided by the applicant includes bank statements of the nominee from 2014 - 2019 showing weekly payments made by the applicant to the nominee; the nominee’s superannuation statement from 2014 – 2019; the nominee’s ATO Notice of Assessment for 2015, 2016, and 2017.

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

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

1. 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.

2. Regulation 5.19 (3) (d) (i) requires that nominee be employed on a full time basis for two years. The terms of the nominee’s employment agreement state that the applicant will provide full time employment for the nominee for a period of 2 years with the possibility to renew depending on performance. The applicant at hearing stated that the nominee is an essential part of the applicant’s business, that the nominee is dedicated, reliable and passionate about motor vehicles and has been employed by the applicant since 2014: in short, the applicant considers the nominee to be an important and highly regarded employee.

3. The Financial Statements provided by the applicant show that the applicant’s net profits have maintained a similar range since the nomination was lodged. The applicant explained at the hearing that although the business has been impacted by the structural changes in fleet management of cars, the change to focus on the   restoration of older vehicles has proved successful, that the business continues to improve financially and that revenue continues to improve as indicated in the Business Activity Statements.

4. Despite the adjustments to the business noted above, the documentary evidence establishes that the applicant has paid the nominee for over five years at the time of hearing. The applicant has also provided information that indicates that the applicant business remains financially capable of continuing to employ the nominee in his full time position on a salary of $54,000 plus superannuation, for the next 2 years.

5. Based on the documentary evidence provided, including the applicant’s contracts of employment with the nominee, bank summary statements showing payments made by the applicant to the nominee on a weekly basis, and the applicant’s Financial Statements for 2016-2017, 2017-2018 and 2018-2019, the Tribunal is satisfied that the nominee will continue to be employed on a full-time basis for at least 2 years, and that the terms and conditions of employment do not expressly exclude the possibility of extending his period of employment.

6. Given the above findings, the Tribunal is satisfied that the requirement in r.5.19 (3) (d) is met.

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

1. 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.

2. The Tribunal has before it the nominee’s employment agreements including the most recent signed employment contract in respect of the nominee dated 29 July 2019. The Tribunal is satisfied that the employment contract has standard provisions that are consistent with those in the Fair Work Act 2009 (Cth).

3. The applicant provided an organisational chart showing the employment details and citizen status for its three employees. The Tribunal accepts evidence of the organisational chart that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee.  The Tribunal accepts that although the Mr McCrudden of the applicant undertakes similar work to that of the nominee, he is stated on the organisation chart to be a Senior Motor Mechanic and is also a partner in the business and therefore has additional duties that must be undertaken in addition to his duties in the position of Motor Mechanic.

4. The employment agreement of the nominee for the nominated position was originally dated dated 30 June 2017 for a term of two years. The agreement was renewed on 29 July 2019. The 2019 agreement continues to be current in its essential terms and provides for a salary of $54,000 plus superannuation. The Tribunal is satisfied that the original contract and most recently updated contract for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).

5. At the hearing, the Tribunal, the applicant provided a document showing the average salary by occupation based on ATO data for 2014-2015. It states that the median income for a motor mechanic at that time was $51,521. The Tribunal’s review online of Payscale and Seek shows that a Motor Mechanic in Australian earns in 2019 on average $52,980 or $23.70 per hour.  Depending upon age, experience and qualifications, a Motor Mechanic may earn between $39,297 - $68,126.

6. The Tribunal finds that the nominee’s salary is within the range for the salary expected of a Motor Mechanic noting that the applicant company is small and operating a specialised business. On this basis, the Tribunal accepts that the nominee’s salary would be no less favourable than that which would be offered to an Australian employee for undertaking the same work in the same location.

7. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.

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

1. 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.

2. The delegate refused the application on the basis the applicant’s nomination did not satisfy r. 5.19 (3)(d), r. 5.19 (3)(f)(i)(A) and r.5.19 (3)(f)(i)(B) of the Regulations because the applicant failed to provide any supporting documents or verifiable evidence:

(a)to demonstrate expenditure amounting to at least 2 % of payroll in accordance with r.5.19 (3)(f)(i)(A); and

(b)to demonstrate that they have fulfilled any commitments made in relation to meeting the training requirements during the period of their most recent approval as a standard business sponsor in accordance with r.5.19 (3)(f)(i)(B).

1. The applicant must demonstrate that they have continued to meet the training requirement throughout the validity of their sponsorship. The applicant’s most recent standard business sponsorship was approved on 21 July 2012. During that time (on 26 June 2014), the nominee commenced working for the applicant and the applicant later applied for approval on 30 June 2017.

2. In relation to Training Benchmark A, the Department found that the applicant declared an amount of $1,200.00 paid to TAFE NSW Automotive Scholarship Fund. However, as the Department was not provided with any evidence to demonstrate the recent expenditure amounting to at least 2% of its payroll on the provision of training Australian citizens and/or Australian permanent resident (including any apprentices and/or trainees) to an Industry Training Fund, the applicant failed to meet the necessary requirements.

3. In relation to Training Benchmark B, the Department found that the applicant stated on the nomination application form that recent expenditure on payroll was $59,158.00. The nominator also indicated that they have spent $0.00 on the provision of training to employees of the business who are Australian citizens and/or Australian permanent residents in the previous 12 months.

4. The Department further observed that the applicant did not provide any detail or quantifiable evidence to demonstrate that they have fulfilled any commitments they made in relation to meeting the training requirements during the period of the most recent approval as a standard business sponsor. 

5. The applicant’s representative submitted to the Tribunal that in relation to the Training Benchmark A payments, as the applicant business is a partnership, there is no distribution of salary to the partners and there is reality one employee, being the nominee Mr Fan. This is also reflected in the Financial and various other Bank Statements of the applicant, which show that the annual payroll from 2015 - 2019 was comprised solely of the salary and superannuation for the nominee.

6. The applicant acknowledged that it had failed initially to make the payments required under Training Benchmark A because he did not understand what was required. However, the applicant was subsequently advised by its Representative as to the payment obligations and the applicant made the necessary payments. Further, the applicant provided quantifiable evidence and verifiable proof to show that the applicant had made the payments (as set out in the table below at item 47) to an Industry Training Fund as required by 5.19 (3)(f)(i)(A).

7. At the hearing, the applicant’s Representative advised that prior to the visa application being lodged on 30 June 2017, the applicant paid $3600 to TAFE NSW towards Training Benchmark A. The applicant later paid (on 3 June 2019), $2400 to Bond University to ensure that the applicant would meet the ongoing requirements of Training Benchmark A. The applicant also told the Tribunal that as a small business, payment of $6,000 to an external fund is a significant outlay and that the applicant was and remains, committed to supporting the training of Australians.

2015	2016	2017	2018	2019	Total
Payroll	$59,130	$59,130	$59,130	$58,860	$59,130
2%	$1182.60	$1182.60	$1182.60	$1177.20	$1182.60	$5,907.60
Training expenditure	Nil	Nil	29 June 2017 $2,400 TAFE, NSW	3 June 2019 $2,400 Bond University
29 June 2017 $1,200, TAFE NSW
Total	$3,600	$2,400	$6,000

1. Regulation 5.19(3)(f)(ii) allows the delegate to disregard subregulation 5.19(3)(f)(i) if the delegate considers that it is reasonable to do so.  Whilst the applicant may not have satisfied the requirement to pay the equivalent of 2% of its payroll annually to an industry fund for training purposes, the applicant did provide evidence that the payments were sufficient to cover several years. The Tribunal is satisfied that the evidence provided by the applicant as proof of these payments supports this contention.

2. Considering the verifiable evidence has been provided by the applicant to address the training requirements, the Tribunal finds that it is reasonable to disregard regulations 5.19(3)(f)(i) in this case.

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

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

1. 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. 

2. The Tribunal has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator. 

3. Accordingly, the Tribunal finds that the requirements of r.5.19(3)(g) are met.

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

1. 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.

2. The applicant advised the Tribunal at hearing that it had complied with the laws of the Commonwealth, and of Victoria. The Tribunal can find nothing in the Department’s records or those of the Fair Work Commission to indicate that the applicant does not have a satisfactory record of compliance in relation to workplace law and workplace relations.

3. Accordingly, the Tribunal finds that the requirements of r.5.19(3)(h) are met.

4. 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

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

S. Jones
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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.