MRSM FABRICATION PTY LTD (Migration)

MRSM FABRICATION PTY LTD (Migration) [2020] AATA 5219 (26 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  MRSM FABRICATION PTY LTD
CASE NUMBER:  1807571
HOME AFFAIRS REFERENCE(S):          BCC2017/4330080
MEMBER:Andrew George
DATE:26 August 2020
PLACE OF DECISION:  Darwin
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 August 2020 at 6:16pm
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream –genuine need for the nominator to employ a paid employee– financial capacity of the business to employ the nominee for at least 2 years full time – no less favourable terms and conditions of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, rr 1.13, 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 Home Affairs on 16 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 17 November 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 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. Materially, the delegate found:
On the basis of the evidence currently before me, the business has not demonstrated the financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years. The assessments raise a concern if the nominee, once granted the permanent visa, will be continuously employed and paid the nominated salary for [a] minimum of 2 years after the permanent visa grant. Therefore, I find that the appointment will not provide the employee with full-time employment for at least 2 years.[1]
[1] Decision under review/4.
Mr Robert Giuliani and Ms Janelle Giuliani, Directors of the applicant company, appeared before the Tribunal on 13 August 2020. This was a combined hearing with Mr Maninder Singh’s visa application in case number 1812787. The parties were represented by Dr Rahuraj of RTN Migration and Citizenship Services.
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.
In accordance with the practice directions the applicant submitted a 329-page Hearing Book, outlines of evidence of the respective witnesses, and written submissions.
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 and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.
The Tribunal has examined the application and is satisfied of that it was made on the proper form and accompanied by the fee prescribed in r.5.37. The application includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). The application nominates a person who holds a Subclass 457 visa granted based on satisfying cl.457.223(4), namely Mr Singh. It includes an occupation in relation to the position that is listed in ANZSCO and has the same 4-digit code as the occupation carried out by the Subclass 457 visa holder, namely 322211 – Sheetmetal Trades Worker.
A letter dated 15 November 2017 from Mr Giuliani, that was not relied upon at the hearing, in substance identifies a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
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.
The oral evidence of Mr and Mrs Giuliani is overwhelmingly to the effect that the applicant is actively and lawfully operating a signage business in Australia. This is supported by the wealth of company and financial documents that form the Hearing Book and need not be itemised to protect commercial-in-confidence aspects of the applicant’s finances.
The applicant was the standard business sponsor,[2] who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act, and 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).
[2] Hearing Book/180-181.
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly, 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.
The Tribunal accepts that the nominee, Mr Singh, has been employed full-time as a Sheetmetal Trades Worker by the applicant since approximately 31 July 2014. [3] The Tribunal accepts the submission that the nominee has been working under a 457 visa and an associated bridging visa with the applicant since that time. Noting the application date of 17 November 2017, the requirement in r.5.19(3)(c) is met.
[3] ibid/171-173.
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 accepts the submission that the applicant business is a financially sound and ongoing concern with a seven-figure sales turnover. This submission is supported by the contents of the Hearing Book.
The Tribunal notes that the application was refused by the delegate on the basis “… that the appointment will not provide the employee with full-time employment for at least 2 years”. Although that decision may have been sound on the material before the delegate, it has proven to be incorrect given that the nominee has remained employed by the applicant for over two years since the delegate’s decision. The Tribunal finds the fact of this enduring employment to be compelling.
The Tribunal accepts the oral evidence of Mr Giuliani and Mr Singh of their mutual intention for Mr Singh to remain employed on a full-time basis for at least another two years, and probably longer. This evidence from Mr Giuliani is telling during a period where the applicant is not eligible for JobSeeker subsidies for Mr Singh’s employment, but Mr Singh remains employed, nevertheless.
There are no terms and conditions of Mr Singh’s employment that expressly exclude the possibility of extending Mr Singh’s employment.[4] The requirement in r.5.19(3)(d) is therefore met given this, and earlier, findings.
[4] ibid/174.
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 notes that the nominee’s salary is $54,184.[5] This is consistent with the Building and Construction General On-site Award 2010 (MA000020).[6] The Tribunal has perused PayScale and is satisfied that the nominee’s terms and conditions of employment are no less favourable than those that are be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace in Victoria, noting the difficulties of this test during the current pandemic lockdown in that place. Accordingly, the requirement in r.5.19(3)(e) is met.
[5] ibid.
[6] ibid/160.
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 applicant’s most recent sponsorship approval period is from 27 May 2015 to 27 May 2020.[7] The Tribunal notes Dr Rahuraj’s submission regarding the applicant’s commitment to training.[8] This submission does not address any period after 12 August 2018, however the Tribunal is satisfied that Training Benchmark B is satisfied for the period from 27 May 2015 to 12 August 2018. It is open to the Tribunal to find that the applicant did not fulfill its commitments relating to training requirements from 13 August 2018 to 27 May 2020 and, due to a want of evidence, the Tribunal so finds.
[7] ibid/179.
[8] Ibid/181.
The Tribunal finds that it is reasonable to disregard the strict requirements of r.5.19(3)(f)(i) given the applicant’s substantial commitment to training, the overall strength of this case, and the present economic circumstances resulting from the COVID-19 pandemic. The Tribunal also accepts Mr Giuliani’s evidence that much training is conducted in-house and the cost of that training, in terms of wages and materials, is not quantified by the applicant.
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. Given that there is no adverse information known to the Department about the nominator or a person ‘associated with’ the nominator before the Tribunal 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 evidence before the Tribunal of any non-compliance with workplace relations law. Accordingly, the Tribunal is satisfied that the nominator has a satisfactory record of compliance with workplace relations laws in the several locations in which it operates a business and employs staff and the requirement in r.5.19(3)(h) is met.
Genuine need to employ nominee: r.5.19(3)(i)
Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
Mr Giuliani gave persuasive oral evidence regarding the difficulty he has employing sheet metal workers who can work with aluminium, acrylics, and non-ferrous materials. Mr Giuliani requires his workers to be multiskilled and invests much in in-house training for his employees. As such, Mr Singh has become a “valued asset” over the course of his lengthy employment with the applicant. The Tribunal accepts this evidence and, accordingly, the requirement in r.5.19(3)(i) 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.
Andrew George
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
(iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and
(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

[2020] AATA 5219

26 August 2020

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