OK DEVELOPMENTS PTY LTD (Migration)

OK DEVELOPMENTS PTY LTD (Migration) [2021] AATA 1880 (1 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  OK DEVELOPMENTS PTY LTD
CASE NUMBER:  1814672
HOME AFFAIRS REFERENCE(S):          BCC2017/3451218
MEMBER:Amanda Mendes Da Costa
DATE:1 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 1 June 2021 at 10.37am

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – genuine need to employee nominee – documentary evidence and oral evidence of director at hearing – long-term, highly-valued employee – position substantially equivalent to ANZSCO definition – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(3)(i)

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 3 May 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 21 September 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)(i) of the Regulations because the applicant had not demonstrated that there is a genuine need to employ the person, as a paid employee, to work in the position under the applicant’s direct control.
Mr Omri Katz, a director of the company appeared before the Tribunal on behalf of the applicant on 21 May 2021 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a video hearing, that the technology for facilitating the hearing was successfully trialled with the applicant prior to the hearing and the applicant was offered the opportunity to provide the Tribunal with further documentation and submissions following the hearing.
The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 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 is satisfied on the basis of the material in the Department’s file, that the application was made on the approved for and accompanied by the prescribed fee. The relevant s.245AR(1) certification was provided in the application form.
The application identifies Chona Bautista Aduna (the nominee) who according to Departmental records, was granted a Subclass 457 visa on 18 February 2015 on the basis of satisfying cl.457.223(4) The application identifies the position and occupation as Accountant (General) – ANZSCO 221111 and a genuine need for the applicant to employee the nominee, as a paid employee, to work in the position under the applicant’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 applicant was most recently approved as a standard business sponsor for the period 1 July 2014 to 1 July 2017. Departmental records indicate that the applicant was the sponsor who last identified the nominee, who is the relevant 457 visa holder, in a nomination made under s.140GB.
The Tribunal has had regard to ASIC information, ABN details for the applicant, financial information, oral evidence of Mr Katz and publicly available information online regarding the applicant’s business.
On the basis of the evidence provided, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in New South Wales.
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 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, r.5.19(c)(i) is the relevant provision. The nomination was lodged on 7 December 2017. The nominee was granted a Subclass 457 visa on 18 February 2015 to work for the applicant in the nominated occupation of ‘Accountant (General)’ – ANZSCO 221111. The visa ceased on 18 February 2019.
The applicant has provided to the Tribunal an organisational chart, payroll summaries for the financial years 201 to 2019 (inclusive), employment agreements dated 23 June 2017 and 1 January 2021 in support of Mr Katz’s oral evidence that the nominee has been employed in the position of ‘Accountant (General)’ on a full time basis since November 2013. The applicant also provided an Addendum (dated 18 May 2021) to a contract of employment dated 1 April 2014 which set out the nominee’s duties as a ‘Accountant (General)’ with an annual salary of $65,000 (excluding superannuation). Mr Katz confirmed that the nominee continues to be employed on the same terms and conditions.
On the basis of the employment contract and the oral evidence at the hearing, the Tribunal is satisfied the nominee has been employed as a ‘Accountant (General)’ since 2014.
The Tribunal notes that the applicant’s nomination application was lodged on 21 September 2017 and the applicant’s Subclass 457 visa was granted on 18 February 2015. On the basis of all the evidence the Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 visa for at least 2 years in the 3 year period immediately before the nomination application was made. The requirements in r.5.19(3)(c)(i) have been met.
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.
In making this finding, the Tribunal has taken into account the employment agreements financial documentation and the oral evidence of Mr Katz. The Tribunal notes that in his evidence Mr Katz told the Tribunal that the nominee was a dedicated, reliable, and skilled employee who had a detailed understanding of the operation of the business. Mr Katz said that the applicant intends to continue its employment of the nominee on a permanent basis.
The Tribunal is further satisfied that the terms and conditions of nominee’s employment agreements do not expressly preclude the possibility of an extension.
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 addendum to the contract of employment dated 18 May 2021 together with the oral evidence of Mr Katz indicates that the nominee’s annual salary is to be $65,000 plus superannuation of 9.5%. The application indicates that there is no Australian working in the same location as a ‘Accountant (General)’.
Mr Katz confirmed in his oral evidence confirmed that there are no Australian citizens or permanent residents performing equivalent work in the same workplace at the same location to that performed by the nominee. The annual income as based on similar positions in other businesses. Data from Payscale.com indicates that the salary range for a ‘Accountant (General)’ is from $41,000 to $72,000 per annum, with a median annual salary of $54,396.
Having regard to the terms and conditions of employment as set out in the contract of employment and in considering the evidence overall, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that are/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.
If the nominator’s business has been operating for at least 12 months, it needs to satisfy the training requirements specified in the relevant instrument[1]. Or if it has been operating for less than 12 months, it needs to have an auditable plan for meeting the requirement specified in the relevant instrument.
[1] IMMI 17/074.
As the applicant’s business has been operating in Australia for at least 12 months, it is required to show that the training has been and continues to be provided to employees who are Australian citizens or permanent residents and is related to the purpose of the business.
The Training benchmarks for an established business are:
Training Benchmark A
Recent expenditure by the business to the equivalent of at least 2% of the payroll of the business in payments allocated to a training fund that operates in the same or related industry of the business.
Recent expenditure for Training Benchmark A is defined as expenditure made in the previous financial year or the previous 12 months as evidenced by a receipt for the payment or a letter from the relevant fund.
OR
Training Benchmark B
Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business who are Australian citizens and Australian permanent residents.
The business is also required to show that the provision of training is related to the purpose of the business.
The Tribunal has had regard to the applicant most recent period as a standard business sponsor being 1 July 2014 to 1 July 2017. The applicant has sought to meet the requirements of Training Benchmark B.
Based on the financial documentation provided, the Tribunal is satisfied that the applicant’s total payroll expense for the year 1 July 2014 to 30 June 2015 is $718,000; the total payroll expense for the year 1 July 2015 to 30 June 2016 is $1,006,351; and the total payroll expense for the year 1 July 2016 to 30 June 2017 is $748,032.
Given that the total salary expense of the applicant for the period 1 July 2014 to 30 June 2015 is $718,000, its training contribution for that period is $7,180 – representing 1% of the payroll expense.
In respect of its training commitments for the first year of its most recent standard business sponsorship, the applicant provided the Tribunal with:
·A receipt dated 25 May 2015 issued by the Sydney Institute of TAFE in the sum of $5,000 in respect of its contribution to Training Benchmark A.
·An invoice (number 5877) issued by McKkr’s Training in the sum of $2,180. This invoice is undated but indicates it is for the financial year 2014-2015.
·A receipt dated 7 September 2017 issued by McKkr’s Training in the sum of $2,180.
Given that the total salary expense of the applicant for the period 1 July 2015 to 30 June 2016 is $1,006,351, its training contribution for that period is $10,064 – representing 1% of payroll expense.
In respect of its training commitments for the second year of its most recent standard business sponsorship, the applicant provided the Tribunal with:
·An invoice (number 5878) issued by McKkr’s Training in the sum of $10,064. This invoice is undated but indicates it is for the financial year 2015-2016.
·A receipt dated 7 September 2017 issued by McKkr’s Training in the sum of $10,064.
Given that the total salary expense of the applicant for the period 1 July 2016 to 30 June 2017 is $748,032, its training contribution for that period is $7,481 – representing 1% of the payroll expense.
In respect of its training commitments for the third year of its most recent standard business sponsorship, the applicant provided the Tribunal with:
·An invoice (number 5879) issued by McKkr’s Training in the sum of $4,781. This invoice is undated but indicates it is for the 2016-2017 financial year.
·An invoice dated 8 December 2016 in the sum of $2,700 and issued by GQ Get Qualified Australia. A handwritten note on the invoice indicates that it was paid by the applicant by credit card, although no date of payment is given.
·A receipt dated 7 September 2017 issued by McKkr’s Training in the sum of $4,781.
·An ANZ bankcard statement showing a payment to GQ Get Qualified Australia on 8 December 2016 in the sum of $2,700.
Based on the documentary and oral evidence before it, the Tribunal is satisfied that the above training has been and continues to be provided to employees who are Australian citizens or permanent residents and is related to the purpose of the business.
The Tribunal notes that the receipt dated 7 September 2017 in the sum of $2,180 indicates that the payment was not made during the first year of the applicant’s most recent period as a standard business sponsor; the receipt dated 7 September 2017 in the sum of $10,064 indicates that the payment was not made during the second year of the applicant’s most recent period as a standard business sponsor; and the receipt dated 7 September 2017 in the sum of $4,781 indicates that the payment was not made during the third year of the applicant’s most recent period as a standard business sponsor.
Based on the evidence before it, (including the financial documentation, payroll summaries, training invoices/receipts, written submissions and the oral evidence of Mr Katz) the Tribunal is satisfied that the applicant has made the required monetary contribution towards its training obligations for each of the three years of its most recent period of standard business sponsorship. The Tribunal is not satisfied that all of the contributions were made during the appropriate year of the period of standard business sponsorship and accordingly is not satisfied that the applicant has met its training obligations as required by r.5.19(3)(f).
However, given that the applicant has made the appropriate monetary contribution in respect of its training obligation for each of the three years of its most recent standard business sponsorship, the Tribunal considers that it is reasonable to disregard the requirements regarding the applicant’s training commitments.
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 evidence before the Tribunal to suggest that there is any adverse information known to the Department about the applicant or a person associated with the applicant. Mr Katz confirmed in his oral evidence that there was no ‘adverse information’ regarding the applicant or any person associated with the applicant.
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 evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff. Mr Katz confirmed in his oral evidence that the applicant has a satisfactory record of compliance with workplace relations laws.
Accordingly, 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.
Having had the benefit of hearing Mr Katz’s evidence at the hearing and considering the documentary evidence (including company taxation returns, financial reports and an organisational structure chart) the Tribunal is satisfied that the business is of a size and complexity such that the position of ‘Accountant (General)’ is justified and the position is genuine. In arriving at this view the Tribunal notes:
·The applicant operates a business selling and installing drywall and plastering supplies for use in the construction industry. In the early stage of the business it concentrated on domestic construction but as the business has grown it supplies drywall and plastering products for use in large-scale construction such as office blocks and apartment buildings.
·Having reviewed the tasks of the occupation as set out in the position description and in the oral evidence of Mr Katz) the Tribunal is satisfied that the duties correspond to those of an ‘Accountant (General)’ with responsibility for the tasks set out in the ANZSCO dictionary for the position. The nominee has been working in the position for over six years and is a highly valued employee who is effectively responsible for the financial operations of the business.
·After reviewing all of the evidence before it the applicant has a genuine need for an ‘Accountant (General)’. The Tribunal is satisfied that the position is substantially equivalent to the ANZSCO definition of the nominated occupation and the position includes a significant majority of the ANZSCO indicated tasks as the applicant certified in the application.

For these reasons, the requirements of 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.
Amanda Mendes Da Costa
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.

[2021] AATA 1880

1 June 2021

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