Mining Equipment Maintenance Pty Ltd (Migration)
[2020] AATA 2692
•7 April 2020
Mining Equipment Maintenance Pty Ltd (Migration) [2020] AATA 2692 (7 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mining Equipment Maintenance Pty Ltd
CASE NUMBER: 1727985
DIBP REFERENCE(S): BCC2017/1045306
MEMBER:Alan McMurran
DATE:7 April 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 07 April 2020 at 11:33am
CATCHWORDS
MIGRATION – nomination of a position – Temporary Residence Transition stream – position of Welder (First-Class) – nominee employed in the position for several recent years – nominee to be employed in the full-time position for 2 years – financial capacity to employ the nominee – recent financial losses – terms and conditions of employment – training for apprentices and trainees – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, Schedule 2 cl 457.233; r 5.19STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application lodged 13 November 2017 for review of a decision made by a delegate of the Minister for Immigration on 24 October 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).
The nominated position was for a Welder (First-Class) ANZSCO 322313, for a nominee, Froilan Mangayao (related application).
The applicant applied for approval on 16 March 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).
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 information before the Department on the basis the applicant’s nomination did not satisfy r.5.19 (3) (d) (i), namely that the person will be employed in the position on a full-time basis for a minimum period of 2 years.
The delegate found the application did not meet the regulation requirement because the applicant had made a financial loss for 2 out of 3 years, and there was no other information available to show how the business might improve.
The Tribunal requested further information from the applicant, who provided further supporting documents as set out below.
The Tribunal determined that following receipt of the additional information, a hearing was not necessary as the Tribunal was able to find in favour of the nomination on the material now before it.[1]
[1] section 360 (2)
The applicant was represented in relation to the review by its registered migration agent.
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 Tribunal has available its case file, and the electronic records downloaded from the Department file[2] . The tribunal also has the recent submissions from the applicant’s representative and the employer provided 11 March 2020.
[2] BCC 20171045306
That information includes recent ASIC records, financial statements with BAS and tax returns for the financial years ending 2018/2019, organisational chart, position description with current and original contract of employment, the nominee’s PAYG payment summaries, and confirmation of current employment. Training benchmark evidence is produced and evidence of recent monitoring by the Department.
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.
The information before the Tribunal confirms the application was made on the correct Internet form and accompanied by the prescribed fee. The application correctly identifies a position as listed in ANZSCO[3].
[3] Welder (First-Class) ANZSCO 322313
The application identifies the nominee in the related application as the person holding a subclass 457 Visa granted because of satisfying clause 457.223 (4) of the Regulations.
The applicant certifies in the application that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958.[4]
[4] in relation to receiving a benefit for a sponsorship related event
Given the above findings, the requirement in r.5.19(3)(a) is met.
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.
On the available information, ASIC records indicate the company is currently registered in Queensland trading under the name of the applicant, with a registered address and principal place of business in Queensland. Historical records indicate the company has traded since 2006 and is now part of the MEM Group Pty Ltd, it being a principal shareholder.
The evidence provided shows the business is actively and lawfully operating within Australia, principally in Queensland.
The applicant has provided evidence of an approved sponsorship and nomination under section 140 GB of the Act on 27 July 2016, which approval related to the named nominee, Froilan Mangayao as the subclass 457 Visa holder, and which sponsorship was not granted because 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 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 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.
With the information provided, the applicant has included PAYG summaries for each of the financial years since 2014, when the nominee’s employment commenced. The information discloses that the employee has been employed full-time by the nominator since the granting of his 457 Visa in 2015 up until the present.
The Tribunal is satisfied that the applicant is the nominating employer and business entity responsible for the employment of the nominee. The applicant is in the business of repairing and welding machinery and equipment used in the mining industry. The Tribunal finds the information further discloses that the nominee has continued in the occupation of Welder (First-Class) ANZSCO 322313 since the granting of his visa.
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)
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 had regard to the available information. The criterion relevantly applies in this instance.
The Tribunal is satisfied the applicant has produced employment contracts firstly for the full-time engagement commencing 24 November 2014 and updated on 1 April 2016. These contracts are continuing. The Tribunal finds the position of welder is still available to the nominee and for a minimum period of 2 years, without limitation. The Tribunal is also satisfied on the current pay information provided concerning the nominee as to his entitlements.
The Tribunal further finds it is satisfied because of the current financial information now provided and noting the written submissions from the representative,[5] that the nominator will be able to continue to pay the nominee’s entitlements as and when they occur and for a further minimum period of at least 2 years.
[5] 11 March 2020
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 Tribunal has had regard to the employment contract provided and finds that the terms and conditions applicable to the position offered to the nominee are no less favourable than terms and conditions 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.
The Tribunal has had regard to the provided information which includes the current sponsorship agreement approved February 2019. The applicant has provided its most recent financial year tax return (2019) showing total income of $20,543,710. The wages disclosed in the company’s financial reports for 2019 show wages of $6,627,355.17.
The applicant is required to meet the training obligations either by payments to an industry training fund at the rate of 2% of wage expenditure, or payments for Australian employees (or permanent residents) for formal training of at least 1% of the wage expenditure.
The Tribunal is satisfied on the information provided that the applicant has incurred training during the relevant period for apprentices and trainees of $266,254.48, and external training costs of $22,136.95. Total expenditure on training by the applicant is shown at $288,391.43. This represents approximately 4.35% of the wage expenditure[6] on the training obligation in accordance with the relevant instrument, Benchmark B.
[6] $6,627,355.17
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.
The applicant has provided evidence of monitoring conducted by the Department by notice given to the nominator on 7 August 2014.
On 17 February 2015, the Department notified the applicant by letter of a possible contravention under the Act in relation to the provision of travel costs for a sponsored person leaving Australia. Upon notification, the nominator sought to rectify the contravention, which the Department accepted as a “minor” contravention of the nominator’s obligations. The supporting letter from the Department advises that “this apparent contravention will not be considered adverse information for the purposes of monitoring”.
There is no other information before the Tribunal or available from the Department’s records which indicates any other known or potential adverse information concerning the nominator or person associated with nominator.
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 had regard to the available information and finds it is not aware of any failure by the applicant to comply with workplace relations in respect of the Commonwealth, any Territory or State.
On the available information, the Tribunal finds the applicant has a satisfactory record of compliance.
Accordingly, the requirement in r.5.19(3)(h) is met.
Summary
The Tribunal has paid careful regard to all information submitted by the applicant by its representative and referred to above in considering the application on review and dealing with the matter afresh as it is required to do.
Based on the findings above, the Tribunal is satisfied that the applicant now 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.
Alan McMurran
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
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Immigration
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Administrative Law
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Judicial Review
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Procedural Fairness
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Statutory Construction
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