NSW FIRE EXTINGUISHER SERVICES PTY LTD (Migration) - [2018] AATA 504

NSW FIRE EXTINGUISHER SERVICES PTY LTD (Migration) [2018] AATA 504 (6 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  NSW Fire Extinguisher Services Pty Ltd
CASE NUMBER:  1710846
DIBP REFERENCE(S):  BCC2016/2858692
MEMBER:Katie Malyon
DATE:6 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 06 March 2018 at 3:55 pm

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 May 2017 to refuse the application made by NSW Fire Extinguisher Services Pty Ltd (the Company) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval on 26 August 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 2 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) of the Regulations and meets all 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) of the Regulations.
In this case, the Company 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 Company’s nomination did not satisfy r.5.19(3)(f) of the Regulations because the Company failed to demonstrate its commitments made in meeting training requirements in each relevant year of its approved standard business sponsorship. A copy of the delegate’s decision was provided to the Tribunal. The Company was represented in relation to the review by its registered migration agent.
No documentation was lodged with the Tribunal in support of the review application, other than the delegate’s decision. Accordingly, on 13 February 2018, the Tribunal wrote to the Company pursuant to s.359(2) of the Act and invited it to provide documentation to enable the Tribunal assess whether the Company meets the requirements for approval of the nomination. In this regard, the Tribunal requested updated and current information addressing all the criteria for approval of the nomination. Without limiting the information that may be provided, the Company was requested to provide: an ASIC current and historical extract for the Company; the Company’s tax returns, financial statements prepared by an Accountant and BAS lodged with the ATO for FY2015/16 and FY2016/17; an Organisational Chart with details of all current and proposed employees, their position title, residence status in Australia; information about the roles and duties of the nominated position and how they correspond to the ANZSCO occupation of Customer Service Manager; an employment contract or letter of offer with the nominee; previous contracts of employment with the nominee including details of their role and duties; and, information about the Company’s compliance with its training commitments and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 504
Decision Date: 6 March 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to refuse the nomination application made by NSW Fire Extinguisher Services Pty Ltd. The dispute concerned whether the Company met the requirements for approval of a nomination under the Temporary Residence Transition stream of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the Company had fulfilled its training commitments and complied with applicable training obligations during the period of its most recent sponsorship approval, as required by regulation 5.19(3)(f). This involved assessing the evidence provided by the Company to demonstrate its compliance with Training Benchmark B, which requires a certain level of expenditure on training employees.

The Tribunal reviewed financial statements and training receipts provided by the Company. While the financial statements did not list a specific training expenditure item, the Company submitted receipts for safety training services. However, the Tribunal found that the Company had not provided sufficient evidence, such as corresponding account transactions or clarification on payments, to substantiate the amounts claimed as paid for these services. Furthermore, no evidence was presented regarding the Australian citizenship or residence status of employees other than the Company's Director. Consequently, the Tribunal concluded that the Company had not sufficiently demonstrated compliance with Training Benchmark B, nor had it provided evidence of meeting Training Benchmark A.

As the Company failed to satisfy the requirements of regulation 5.19(3)(f), the Tribunal affirmed the delegate's decision to refuse the nomination. The Company had not sought to satisfy the criteria under the Direct Entry nomination stream, meaning it did not meet the requirements of regulation 5.19(4). Therefore, the Tribunal affirmed the decision under review to refuse the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the Company meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3) of the Regulations, which is extracted in the Attachment to this decision. For the nomination to be approved, all the requirements must be met. If any of the requirements are not met then the application must be refused: r.5.19(5) of the Regulations. In the circumstances, the Tribunal has considered the criterion on which the delegate decided to refuse the Company’s nomination application. Training commitments and obligations: r.5.19(3)(f) Regulation 5.19(3)(f) requires the Company to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training its employees, during the period of the Company’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so. The Tribunal has reviewed documentation in the Department’s file. Financial Statements signed by the Company’s Director have been provided in respect of financial years ended 30 June 2014 and 2015. Total wages expenditure including superannuation and subcontracting of $598,778 for the year ended 30 June 2014 and $591,632 for the year ended 30 June 2015 has been reported. No training expenditure item is listed in the Financial Statements. However, the Company has provided 3 training receipts from training provider CSI. Receipt Ref 2059-0914 dated 16 September 2014 states safety training services valued at $3,780 were provided by CSI to the Company in the period Oct 2013 – Sept 2014 and the invoice has been ‘paid in full’. Further, a receipt Ref 2059-0915 dated 18 September 2015 states safety training services valued at $7,027 and ‘AUD $3,870’ were provided by CSI to the Company in the period Oct 2014 – Sept 2015 and have been ‘paid in full’ (emphasis added). As noted in the delegate’s letter, no evidence of corresponding account transactions or clarification from the amount ’paid in full’ was provided to substantiate payments made by the Company to CSI. Subsequently, this last invoice was reissued: receipt Ref 2059-0915 dated 24 March 2016 states safety training services valued at $4,527 were provided by CSI to the Company in the period Oct 2014 – Sept 2015 and the invoice been ‘paid in full’. Again, no evidence of a corresponding account transaction was provided to substantiate payment being made by the Company to CSI. Furthermore, the Tribunal notes no evidence has been provided of the Australian citizenship or residence status of any employees of the business other than the Company’s Director who provided evidence of his Australian citizenship. In the circumstances, the Tribunal finds that there is insufficient evidence to demonstrate that the Company has met Training Benchmark B during the 3 year term of its standard business sponsorship approval which expired on 5 September 2016. No evidence was provided of the Company meeting Training Benchmark A in this period.

Decision

Reasons for decision

For the above reasons the Tribunal is not satisfied that the Company meets the requirements of r.5.19(3) of the Regulations. The Company has not sought to satisfy the criteria in Direct Entry nomination stream and, as such, has not met the requirements in r.5.19(4) of the Regulations. In the circumstances, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision under review to refuse the nomination.Katie MalyonMemberATTACHMENT - Extracts from the Migration Regulations 19945.19Approval 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); andNote 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 Company operates a business and employs employees in the Company, relating to workplace relations.oOOo

Ratio Decidendi

Legal Principle Established

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