Mithra Investments Pty Ltd ATF The Samaranayake Family Trust (Migration)

Mithra Investments Pty Ltd ATF The Samaranayake Family Trust (Migration) [2019] AATA 4579 (3 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mithra Investments Pty Ltd ATF The Samaranayake Family Trust
CASE NUMBER:  1728550
DIBP REFERENCE(S):  BCC2017/1903493
MEMBER:Mary Sheargold
DATE:3 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 03 October 2019 at 11:20am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Graphic Designer – training commitments and obligations – requirements no longer applicable – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 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 applicant applied for approval on 29 May 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 basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because there was no evidence provided to the Department to demonstrate that the applicant met its training obligations in each year of its most recent standard business sponsorship approval.
Mr Mithra Samaranayake, the director of Mithra Investments Pty Ltd (the applicant), appeared before the Tribunal on 23 September 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal 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.
Prior to the hearing, the applicant’s representative provided submissions and supporting documentation to demonstrate that the applicant could comply with r.5.19(3)(f), including evidence of its most recent standard business sponsorship approval, granted on 16 August 2018; and a market rate salary survey dated August 2019. After the hearing, the applicant’s representative submitted more documents on the applicant’s behalf, including a copy of the trust deed for The Samaranayake Family Trust; a copy of the business name registration for TDC3; copies of business activity statements (BAS) from 1 July 2017 to 30 June 2019; detailed financial statements for the applicant for the financial years ending on 30 June 2018 and 30 June 2019; copies of tax returns for The Samaranayake Family Trust for the financial years ending on 30 June 2018 and 30 June 2019; a copy of the employment contract for the nominee, Mr Sean Sansoni; copies of PAYG statements for Mr Sansoni for each financial year ending on 30 June from 2013 to 2019 inclusive; evidence of payment of superannuation to the applicant’s staff; and evidence of current WorkCover insurance held by the applicant.
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 Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and that the relevant s.245AR(1) certification was also provided in the application form. The letter from the Department to the applicant dated 29 May 2017 indicates that the nomination application fee has been paid.
The application for approval identifies Mr Sean Sansoni, the nominee who, according to Departmental records, held a Subclass 457 visa from 24 October 2013 that was granted on the basis of satisfying cl.457.233(4) of Schedule 2 to the Regulations.
The application for approval identifies the occupation of Graphic Designer, ANZSCO 232411. Based on the employment documents for the nominee, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by him as the holder of a Subclass 457 visa. Accordingly, the Tribunal is satisfied that this occupation carries the same 4 digit code (2324) as the occupation carried out by the nominee whilst he held the Subclass 457 visa.
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.
Departmental records confirm that the nominator was the standard business sponsor who last identified Mr Sansoni in a nomination made under s.140GB of the Act. The nominator 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).
At the hearing, Mr Samaranayake gave evidence that he operates a small graphics and communications business in Melbourne, trading as TDC3. According to the trust deed provided by the applicant, Mithra Investments Pty Ltd is the trustee for The Samaranayake Family Trust. The Tribunal notes that according to the documents provided by the applicant, the business name TDC3 is registered to the Trustee for The Samaranayake Family Trust, which is, as set out above, the applicant.
After the hearing, the applicant provided the Tribunal with a copy of the trust deed, BAS for the periods covering 1 July 2017 to 30 June 2019, trust tax returns for the financial years ending on 30 June 2018 and 30 June 2019, detailed financial statements for the financial years ending on 30 June 2018 and 30 June 2019, and other information about the business’s activities.
Based on the material before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia. Therefore, 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 case, the relevant provision is set out in r.5.19(3)(c)(i). The nomination application was made on 29 May 2017.
The nominee was granted his Subclass 457 visa in the nominated occupation of Graphic Designer on 24 October 2013, sponsored by the applicant. The applicant was approved as a standard business sponsor from 19 September 2013 to 19 September 2016, and more recently was approved as a standard business sponsor from 16 August 2018 to 16 August 2023.
The Tribunal has had regard to the PAYG statements for the nominee, provided by the applicant, for each financial year from the year ending on 30 June 2014 to the year ending on 30 June 2019 inclusive, as well as the evidence provided by Mr Samaranayake at the hearing, which the Tribunal accepts, that the nominee has been working for the applicant as a graphic designer continuously since 2013.
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. As set out above, r.5.19(3)(c)(i) applies to this application, and so the applicant must also comply with r.5.19(3)(d).
The applicant has provided the Tribunal with a copy of the nominee’s most recent employment contract, which the Tribunal notes is undated, but states it will commence on the grant of the nominee’s Subclass 186 visa (the employment contract). Clause 2.1 of the employment contract states that the nominee will be required to work an average of 38 hours per week, and the table on the front page of the employment contract states that the basis of the nominee’s employment is “full time”.
Clause 1.1 of the employment contract states that the term commences upon the grant of the nominee’s Subclass 186 visa, and clause 1.2 of the employment contract states that the employment will be full time and for a “minimum” of 2 years. Therefore, the Tribunal is satisfied that the terms and conditions of employment do not expressly exclude the possibility of extending the period of employment beyond the initial minimum two year term expressed in the employment contract.
The Tribunal has considered the detailed financial statements for the applicant’s business for the financial years ending on 30 June 2018 and 30 June 2019, as well as the PAYG statements for the nominee for each financial year from the year ending on 30 June 2013 to the year ending on 30 June 2019 inclusive. Based on the information set out in those documents, the Tribunal is satisfied that the applicant has the financial capacity to pay the nominee’s salary of $55,000 per annum plus 9.5% superannuation for at least 2 years.
Based on the evidence before it, the Tribunal is satisfied that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly exclude the possibility of extending the period of employment.
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.
Prior to the hearing, the applicant’s representative provided a recent market salary survey in relation to the nominee’s role of Graphic Designer. The Tribunal has considered the information contained in the survey, including information obtained from PayScale in relation to the average salary for a graphic designer in Australia, and finds that the nominee’s proposed salary of $55,000 plus 9.5% superannuation per annum is above the median salary of $54,210 per annum set out in PayScale. The Tribunal also notes the 3 recent job advertisements for graphic designer roles in Melbourne, and finds that the nominee’s proposed salary fits within the range of the advertised salaries in each of those positions.
The Tribunal has considered the terms of the employment contract and finds that the provisions with respect to leave (including long service leave), notice, and termination are in accordance with the minimum standards set out in the National Employment Standards.
Based on all the evidence before it, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be 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.
As set out above, the Tribunal notes that the applicant’s most recent standard business sponsorship was approved on 16 August 2018. The requirements at the time of the most recent sponsorship approval did not include any training commitments that have to be fulfilled by the applicant. The Tribunal notes that the sponsorship obligation to provide training no longer applies. In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied.
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.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
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.
There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws. The Tribunal notes that the employment contract provides the minimum terms and conditions of employment set out in workplace relations legislation.
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.
Mary Sheargold
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.

[2019] AATA 4579

3 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness