MARTINEZ VALIENTE (Migration)

[2019] AATA 2066

MARTINEZ VALIENTE (Migration) [2019] AATA 2066 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SANTOS MARTINEZ VALIENTE
Ms NIEVES VELA EGEA
Mr SANTOS MARTINEZ VELA
Miss SONIA MARTINEZ VELA

CASE NUMBER:  1704717

HOME AFFAIRS REFERENCE(S):           BCC2016/2217185

MEMBER:Karen McNamara

DATE:14 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.223 of Schedule 2 to the Regulations

Statement made on 14 February 2019 at 1:27pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Facilities Manager – nomination refused – adverse information – nominator barred as sponsor for six months – inadvertent underpayment of wages – employees reimbursed wages owed – decision substituted – nomination approved – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 140M(2)
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 186.223

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 and Border Protection on 3 March 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 3 March 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant, Mr Santos Martinez Valiente (the first named applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Facilities Manager ANZSCO 149913.

5. The delegate refused to grant the visas because the first named applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the nomination of a position in relation to the applicant had not been approved.

6. The applicants appeared before the Tribunal by video conference on 30 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Guillermo Alonso and Ms Telma Martinez on behalf of the nominator.

7. The applicants were represented in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the first named applicant (Mr Santos Martinez Valiente) meets the requirements of cl.186.223.

   Nomination of a position

10. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

11. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

12. The nominating employer, Steelcon Cava Pty Ltd, applied to the Department of Immigration for approval of a nomination in relation to the position of Facilities Manager ANZSCO 149913.  That nomination was refused by the Department and consequently the applicant’s visa application was refused.

13. Steelcon Cava Pty Ltd, applied to the Tribunal for review of the decision not to approve the nomination (AAT case No. 1701723). On 14 February 2019, the Tribunal set aside the Department’s decision and substituted a new decision to approve the nomination under r.5.19(4) of the Regulations.

14. Based on the evidence before it, the Tribunal is satisfied that:

    ·The person who will employ the applicant in the nominated position (that is Steelcon Cava Pty Ltd), is the person who made the nomination.

    ·Steelcon Cava Pty Ltd’s nomination for the position of Facilities Manager has been approved by the Tribunal and has not been subsequently withdrawn.

    ·The nominator advised at the hearing the positon is still available to Mr Santos Martinez Valiente; and

    ·The visa application was made at the same time as the employer nomination and was therefore not made more than six months after the nomination was approved.

15. There is evidence before the Tribunal regarding the nominator that may be considered adverse. The information relates to the nominator being barred as a sponsor for a period of six months.

16. At the hearing, the nominator advised the Tribunal that the Australian Border Force on 29 January 2019 (the day preceding the hearing) had issued a Notice of Decision to Steelcon Cava Pty Ltd.  The nominator has provided the Tribunal a copy of the Department’s decision.

17. The nominator told the Tribunal that the Department’s actions were the result of a pay matter in which the Department found that the business had underpaid two employees including Mr Martinez Valiente. The nominator indicated to the Tribunal that the pay discrepancy had arisen through a miscalculation in the hourly rate of pay and that the nominator had subsequently taken action to rectify the matter. The Tribunal provided the nominator through their authorised representative opportunity to provide a detailed submission about the adverse information.

18. A detailed submission and supporting documentation was received by the Tribunal on 6 February 2019. The Tribunal has considered the submission and accompanying documentation and notes the following:

19. On 29 January 2019, Australian Border Force issued a Notice of Decision to the nominator. The decision under section 140M(2) of the Migration Act 1958, is a bar for a period of six months from making applications for approval as a standard business sponsor and temporary activities sponsor. The bar does not prohibit the continuation of the Nomination Application.

20. The nominator believed that they had been paying the visa holders correctly due to the annual salary being paid being more than the Guaranteed Annual Earnings (GAE), however the Department found that the visa holders were working in excess of the hours provided at nomination stage in order to receive the approved GAE.  The delegate noted that the sponsor has since provided evidence of additional allowances paid to the visa holders.  None of these allowances were previously included in the employment contracts provided at time of nomination application and therefore were not included in the GAE amount approved.

21. The nominator has provided evidence in the form of payroll advice and copies of cheques made out to the two employees, that it has paid the employees the back pay owed due to the identified underpayment of salary during the monitoring audit period and continues to pay the employees the appropriate hourly rate. 

22. Based on the evidence before it and the oral evidence provided at the hearing, the Tribunal accepts that the sponsor did not deliberately attempt to underpay the visa holders and that the nominator has demonstrated the value it places on these employees through the payment of significant additional allowances previously not included as salary at the time of the nomination application.  Evidence before the Tribunal suggests Mr Martinez Valiente receives a food allowance, motor vehicle allowance (including use of a company motor vehicle) and a telephone allowance.  The nominator submits that in addition to Mr Martinez Valiente’s salary and the aforementioned allowances, Mr Martinez Valiente has also received financial assistance from the business through the payment of upfront personal expenses in excess of $32,000 and payment of repairs to his personal motor vehicle amounting to $4375.

23. The Tribunal has considered the information before it in regard to the action taken by Australian Border Force in barring the nominator under 140M(2) for a period of six months (effective from 29 January 2019) and has given weighting to the nature of the adverse information, the circumstances contributing to the Department’s decision and the subsequent action taken by the nominator to rectify the matter.

24. Based on the information before it, the Tribunal finds that the underpayments were not intentional and that the nominator cooperated with the Department during the monitoring process and took prompt action to rectify the underpayments.  Copies of payroll reports, payslips and company cheques confirm reimbursement of the underpayments to the employees, were made on 10 October 2018. The Tribunal notes that the nominator’s payroll is over $2,000,000 per annum and that employee’s including the applicant have received financial payment beyond the terms stipulated in their contracts of employment. These payments are demonstrated by the payment of personal costs and allowances by the nominator.

25. The Tribunal has further placed weighting on the nominator’s contribution to and support of the Mt Isa region through their commitment to the employment of local indigenous workers in addition to financial support of local sporting groups and services including the Royal Flying Doctor Services and RACQ North Queensland Rescue. The Tribunal has cited evidence of this support and of the nominator’s donations to charities including the Leukaemia Foundation Mt Isa Branch, and the Prostate Cancer Foundation. The Tribunal considers this support indicative of an employer who values their workforce and local community.

26. The Tribunal therefore finds on the information before it, that the nominator did not intend to underpay the visa holders and has demonstrated a commitment to ensure its employees are valued and remunerated in accordance with their sponsorship and legislative responsibilities as an employer. In consideration of the circumstances which contributed to the Department’s actions, full disclosure by the nominator at the hearing of the adverse information and action taken by the nominator to rectify the pay anomaly, the Tribunal finds in this instance it is reasonable to disregard adverse information about the nominator. Accordingly, the Tribunal is satisfied it is reasonable to disregard the information.

27. Accordingly, the Tribunal is satisfied it is reasonable to disregard the information.

28. On the basis of the above, the Tribunal finds that the requirements of cl.186.223 is met.

29. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

30. Ms Nieves Vela Egea, Mr Santos Martinez Vela and Miss Sonia Martinez Vela, applied on the basis of being a member of the family unit of the first named applicant. The applications by Ms Nieves Vela Egea, Mr Santos Martinez Vela and Miss Sonia Martinez Vela will be determined by reference to the outcome of Mr Santos Martinez Valiente’s application on remittal to the Department for consideration.

    DECISION

31. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223 of Schedule 2 to the Regulations

    Karen McNamara
    Member

    
    

    ATTACHMENT A

    186.223(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)      The position is still available to the applicant.

    (5)      The application for the visa is made no more than 6 months after the Minister approved the nomination.