M M & K M Pty Ltd (Migration)
[2021] AATA 314
•8 January 2021
M M & K M Pty Ltd (Migration) [2021] AATA 314 (8 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: M M & K M Pty Ltd
CASE NUMBER: 1808896
HOME AFFAIRS REFERENCE(S): BCC2016/2189365
MEMBER:Michelle East
DATE:8 January 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 08 January 2021 at 1:49pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Cook – future employment of the nominee – financial capacity to maintain nominee’s full-time salary for at least 2 years – nominator’s financial position – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 March 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 28 June 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the delegate was not satisfied the nominee would be employed full time for a period of two years.
The applicant was represented in relation to the review by its registered migration agent.
Shortly before the listed hearing on 11 January 2021 the applicant’s representative provided updated submissions. The Tribunal has also had the benefit of having heard and determined another nomination application by the same applicant.
The Tribunal decided it had sufficient evidence to make a decision without the need for a hearing.
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 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)
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.
On the basis of the information in the Department’s file, the Tribunal is satisfied that the nomination was made on the approved form, that the prescribed fee has been paid and that the relevant written certification relating to conduct that contravenes s.245AR(1) has been provided as part of the application form.
The Tribunal is also satisfied based on the information in the Department’s file, that the application for approval identifies Ms Amanpreet KAUR as the relevant 457 visa holder and identifies the occupation Cook in relation to the position that is listed in the ANZSCO and has the same 4-digit occupation unit group as the occupation carried out by the relevant holder of the subclass 457 visa.
Status of the nominator: r.5.19(3)(b)
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.
Departmental records confirm that the nominator is the standard business sponsor who last identified Ms Kaur in a nomination made under section 140GB of the Act.
The Tribunal has received current evidence that the business is actively and lawfully operating a business in Australia, including ASIC information and financial documents.
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).
Given the above the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
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.
In this matter, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a 457 visa on 13 June 2013 with ATCO Corporation Pty Ltd. On 1 July 2015 the Grandview Hotel Fairfield where the nominee works, started operating under ownership by the applicant.
A review of ASIC records indicates that the two companies have the same directors and office holders.
A new sponsorship application for the applicant for SBS approval was lodged and approved on 1 October 2015, with a new nomination being approved on 24 November 2015 in respect of the nominee’s 457 visa.
Evidence in the form of pay slips, bank statements and tax records has been provided to the Tribunal that the nominee has been working in the same position as a Cook since 1 July 2013.
In January 2020 the nominee went offshore to India for her annual holidays. Evidence in the form of flight itineraries was provided to show that she was booked to return to Australia in April 2020. With the outbreak of the global pandemic she changed her flight to 20 March 2020 however was still unable to return because of the strict lockdown imposed in India at that time.
At this stage the nominee is still offshore due to circumstances beyond her control.
Even though the company ownership of the business has moved from one private company to another, after reviewing the relevant ASIC records, the Tribunal is satisfied that the two companies have the same directors and office holders. Even though they are technically different legal entities, the Tribunal is satisfied that the supporting material indicates that the trading name of the business, its address and its operations remain unchanged.
On the evidence before it the Tribunal is therefore satisfied that the nominee has worked in a full-time capacity in the position of Cook, for the applicant, for a period of two years whilst holding a Subclass 457 visa.
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.
Given the above findings, the requirements in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
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.
The Tribunal has a copy of the nominee’s employment contract dated 19 May 2016 which provides for employment for a period of two years commencing after the visa grant with the option of extending for a further two years.
The delegate was concerned that the applicant did not have the financial capacity to employ the nominee for at least 2 years.
This Tribunal also conducted a hearing in a related application for the same applicant sponsor with a different nominee (Tribunal reference:1807530). The Tribunal in that matter comprehensively examined the applicant regarding its financial position and is satisfied that the applicant has the capacity to employ the nominee full time for at least a further two years with no exclusion of the possibility of an extension.
Evidence in the form of PAYG payment summaries have been provided to demonstrate the nominee has been provided with all her entitlements since she started work with the applicant.
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)
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.
The employment contract for the nominee indicates that her salary is $54,000 plus superannuation. According to the organisation chart provided, the other Cook is also a proposed nominee and all other employees are Australian citizens.
The Tribunal after considering all the evidence is satisfied that the terms and conditions applicable to the position are no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
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.
A review of the Department’s records indicates the date of the most recent approval was from 1 October 2015 to 1 April 2017. As this is the most recent approval as a standard business sponsor, the Tribunal is required to consider whether its commitments have been fulfilled during that period.
Receipts from RTO Connect Pty Ltd dated 11 May 2016 and Australian Study Link Institute dated 3 March and 12 April 2017 demonstrate payments of $3650 and $4300.
It appears that the applicant was approved as a standard business sponsor on the basis of meeting training benchmark B (IMMI 13/030), which required the applicant to demonstrate 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.
Payroll for the business for financial years 2015/2016 was $341,454 and for 2016/2017 was $373,003.
Based on the evidence before it, the Tribunal is satisfied that the applicant complied with the applicable sponsorship obligations relating to the applicant’s training requirements during the period of the most recent sponsorship approval and has fulfilled commitments made relating to meeting the training requirements.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
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.
As noted in the related nomination application decision, there was potentially adverse information which was put to the applicant in that matter, pursuant to section 359AA of the Act.
The Tribunal considers it reasonable to disregard the information in this case.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
The Tribunal has no evidence suggesting that it does not have a satisfactory record of compliance in relation to workplace relations.
Accordingly, the requirement in r.5.19(3)(h) is met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Michelle East
MemberATTACHMENT - 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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