OSTASTAND PTY LTD (Migration)

[2017] AATA 1340

OSTASTAND PTY LTD (Migration) [2017] AATA 1340 (31 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  OSTASTAND PTY LTD

CASE NUMBER:  1513921

DIBP REFERENCE(S):  BCC2015/1405768

MEMBER:R. Skaros

DATE:31 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 31 July 2017 at 11:56am

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Temporary Residence Transition nomination stream – Training commitments and obligations – Required 1% of payroll training expenditure – Reasonable to disregard the requirement

LEGISLATION

Migration Act 1958, ss 140GB, 245AR

Migration Regulations 1994, r 1.13A, r 1.13B, r 5.19, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 September 2015 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).

2. The applicant applied for approval on 15 May 2015. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because the delegate was not satisfied that the applicant had demonstrated the required expenditure on training for the period of its approval as a sponsor, from October 2012 to May 2015, to meet the training benchmark.

5. The director, Mr Jamal Sabsabi, appeared before the Tribunal on 1 May 2017 to give evidence and present arguments. The Tribunal also had the opportunity to take evidence from the nominee, Mr Hamad.

6. The applicant was represented in relation to the review by its registered migration agent.

7. 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

8. 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)

9. 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.

10. The Tribunal is satisfied, based on the material in the Department’s file, that the application was made on the approved form and accompanied by the prescribed fee. The relevant s.245AR(1) certification was not included in the form as this application was made before 14 December 2015. The application identifies Mr Diya Ismail Harb Hamad who, according to Departmental records, was granted a Subclass 457 visa on 6 February 2013 on the basis of satisfying cl.457.223(4). The application identifies the occupation of Massage Therapist – ANZSCO 411611, which has the same 4 digit code as the occupation carried out by Mr Hamad.

11. On the evidence before it, the Tribunal is satisfied that the requirements in r.5.19(3)(a) are met.

    Status of the nominator: r.5.19(3)(b)

12. 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.

13. The nominator was most recently approved as a Standard Business Sponsor on 23 October 2012 for a period of 3 years. Departmental records indicate that the nominator was the sponsor who last identified Mr Hamad, who is the relevant 457 visa holder, in a nomination made under s.140GB. The Tribunal is accordingly satisfied that the requirement in r.5.19(3)(b)(i) is met.

14. At the hearing, Mr Sabsabi informed the Tribunal that the applicant operates three practices located in Engadine, Liverpool and St Marys that provide chiropractic, physiotherapy and remedial massage services. The business operates under the name The Back Dr Clinics. He informed the Tribunal that the applicant had also invested in a farm. They lease land at Bellfield Avenue Rossmore, west of Liverpool NSW, where they have established greenhouses to grow vegetables. The produce is sold through an agent. The applicant has four contractors and employs about 15 people, five of whom are full time. Mr Sabsabi gave evidence that only four of the people who work in the businesses are not Australian and that most are either citizens or permanent residents.

15. In addition to Mr Sabsabi’s oral evidence, the Tribunal has also had regard to the supporting material provided, including company registration documents, recent activity statements, financial reports, employment contracts and wage records. The Tribunal has also had regard to the 2016 profit and loss statement which records the applicant’s income sources, including from professional fees and farm profits.

16. On the totality of the evidence before it, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia. The requirement in r.5.19(3)(b)(ii) is therefore met.

17. The nominator was not granted the most recent business sponsorship on the basis of operating a business outside Australia. The requirement in r.5.19(3)(b)(iii) is therefore met.

18. Given the above, the requirements in r.5.19(3)(b) are met.

    Previous employment of the nominee: r.5.19(3)(c)

19. 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.

20. Departmental records indicate that Mr Hamad was granted the 457 visa on 6 February 2013. This nomination application was lodged on 23 September 2015. Mr Hamad informed the Tribunal that he has been employed as a Massage Therapist on a full time basis at the applicant’s Engadine practice since the grant of the 457 visa. The applicant provided to the Tribunal copies of the PAYG payment summaries issued to Mr Hamad, including for the years ended 30 June 2013, 30 June 2014 and 30 June 2015.

21. On the evidence before it, the Tribunal is satisfied that the nominee has 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 immediately before the nomination application. The requirement in r.5.19(3)(c)(i) is satisfied. Therefore, r.5.19(3)(c) is met.

    Future employment of the visa holder: r.5.19(3)(d)

22. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). Given the above findings, the Tribunal is satisfied that this requirement applies in this case. 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.

23. The applicant has provided to the Tribunal a current signed contract of employment in respect of the nominee dated 6 May 2017. The contract, which sets out the terms and conditions of employment, provides a term of three years employment (renewable). 

24. The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending the period of employment. The requirement in r.5.19(3)(d) is therefore met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

25. 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.

26. The current employment contract, dated 6 May 2017, indicates that Mr Hamad’s total remuneration, inclusive of 9.5% superannuation, is $62,725. Payslips provided for Mr Hamad indicate that his hourly rate is $28.90 and that his weekly earnings based on 38 hours a week are $1,089 plus $104.35 superannuation. This indicates that Mr Hamad’s base salary is $57,115.

27. Mr Sabsabi informed the Tribunal that the practice employs another massage therapist, Daniel Ly, however Daniel was trained as a graduate at the practice and does not have the same level of experience as Mr Hamad, who has also completed physiotherapist qualifications in the Ukraine. The contract of employment and pay slips for Daniel Ly, indicates that his base salary is $47,840. Although Mr Hamad and Mr Ly may both be employed as massage therapists at the same workplace, the Tribunal considers that the difference in experience suggests that they may not be performing equivalent work. So even though Mr Hamad’s terms and conditions of employment are more favourable than that of Mr Ly, the Tribunal does not consider it appropriate to compare their terms and conditions given the difference in skills and experience, and consequently the work they each perform.

28. With the visa application, the applicant provided examples of vacancies for the position of massage therapist indicating that the base salary is between $55,000 and $60,000. Recent Payscale data indicates that the median hourly rate for experienced massage therapists in Australia is $25.95 (which is equivalent $53,072 per annum).  In considering the evidence overall, the Tribunal is satisfied the nominee’s base salary will not be less than that normally paid to an experienced massage therapist.

29. The Tribunal has had regard to the terms and conditions of employment as set out in the employment contract, and in considering the evidence overall, is satisfied that the terms and condition applicable to the 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.

30. Given the above, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

31. 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.

32. Relevantly in this case, the training requirement can be met if the applicant can demonstrate 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, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor: Training Benchmark B. 

33. As noted above, the delegate refused to approve the nomination on the basis that this requirement was not met. At the time of application, the applicant claimed that they met the training requirement through the employment of Ms Daphne Robinson, a qualified physiotherapist, whose role was in part to deliver a formalised training programme for the business’ employees. The delegate was not satisfied that the material provided demonstrated that the applicant had employed a person who trains the business' Australian employees as a key part of their job.

34. The Tribunal spent a considerable part of the hearing discussing this requirement with Mr Sabsabi who gave evidence that the clinics, which operate as The Back Dr, had developed a specialised and comprehensive training programme for its staff. He stated that it was part of the role of experienced staff to deliver the training in accordance with the training programme. Mr Sabsabi stated that the business had employed a number of young graduates who had little if any hands on experience when they commenced employment. He stated that he was responsible for ensuring that the young graduates received the required training, in accordance with the developed training programme, so that they could perform the tasks of the position to the standard set by the clinic. He stated that experienced physiotherapist provided training to graduate physiotherapists and to massage therapists and he provided the training to the administrative staff. He stated that specific time was allocated for the delivery of training each week. He provided examples of the training provided and referred the Tribunal to the documentary evidence provided which included a copy of the training programme, assessment and observation sheets, including samples of those completed in respect of some of the employees.

35. Mr Sabsabi gave evidence that he has employed a number of graduates over the years as physiotherapists, massage therapists and administrative assistants. He stated that as graduates most of them have no hands on experience and are offered comprehensive training, guidance and feedback, which is not available through external training providers. He stated that the internal training offered to graduates makes them more employable and able to progress in their chosen careers. He stated that some of the graduates remained with the clinics and have become valuable to the business while others have left to pursue other positions.

36. At the hearing, the Tribunal explained to Mr Sabsabi that the employment of graduates on an ongoing basis in numbers proportionate to the size of the business can be considered expenditure that counts towards the training benchmarks. The Tribunal gave Mr Sabsabi the opportunity to provide further information regarding the employment of graduates.

37. After the hearing, the Tribunal received information indicating that the applicant employed six graduates between 2011 and 2017. The Tribunal also received evidence of the Australian graduates’ qualifications, passports and birth certificates evidencing the graduate’s Australian citizenship, employment contracts and pay slips.

38. The period of the applicant’s most recent sponsorship approval was between October 2012 and September 2015. The Tribunal considers that the employment of graduates within the first two years of completing their qualifications is expenditure that can count towards meeting training benchmark B. Of the six graduates, four were employed by the applicant within two years after completing their qualifications and part of the two year period of that employment was within the period of the applicant’s most recent approval as a sponsor. The representative provided a document summarising the sponsor’s payroll in each year commencing October 2012, this included salaries/wages paid to the applicant’s employees and contractors, and wages paid to the four graduates within the first two years of their graduation during the sponsorship period. The expenditure on the employment of graduates during each year of approval as a sponsor was, as a percentage of payroll, 6%, 0.5% and 5.2% respectively.

39. The Tribunal notes that the applicant also provided invoices which appear to be issued by the following entities, Smart Training and Education Pty Ltd and Ass’ad Nizar and Sydney Family Health Clinic. No evidence was provided to demonstrate that these entities are registered training providers and nor was evidence provided to indicate that these invoices were actually paid by the applicant. For these reasons, the Tribunal gives no weight to these invoices and will accordingly not to include the stated amounts in its calculations of the applicant’s expenditure on training. 

40. The evidence of expenditure towards the employment of graduates, which the Tribunal has accepted, indicates that the applicant’s expenditure on training in the second year of its approval as a sponsor fell 0.5% short of the required 1% commitment. The applicant’s expenditure in the first and third years however was well in excess of the 1% requirement in each of those years. On this basis, the Tribunal considers that the applicant has fulfilled the commitment made in relation to meeting the training requirement during the period of its approval as a sponsor. Alternatively, given that the overall expenditure during the 3 years of the applicant’s approval as a standard business sponsor was over 11%, which is an average of 3.9% in each year, the Tribunal considers that in the circumstances it is reasonable to disregard the requirement. 

41. In addition to fulfilling the commitment relating to training, the applicant in this case is also required to keep records showing that they have complied with requirements relating to the training obligation. As set out above, the applicant has provided copies of records relating to the employment of recent graduates who are Australian citizens or permanent residents during its period of approval as a standard business sponsor.

42. On the evidence before it, the Tribunal finds that the requirements of r.5.19(3)(f) are met.

    No adverse information known to Immigration: r.5.19(3)(g)

43. 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.

44. Mr Sabsabi gave evidence at the hearing that there is nothing adverse known about the nominator or an associated person. There is also no evidence before the Tribunal to suggest that there is adverse information known to Immigration about the nominator or an associated person.  

45. The Tribunal is accordingly satisfied that the requirement in r.5.19(3)(g) is met.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

46. 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.

47. Mr Sabsabi indicated at the hearing that the applicant has complied with all relevant workplace relations laws. There is also no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with applicable workplace relations laws.

48. The Tribunal is accordingly satisfied that the requirement in r.5.19(3)(h) is met.

    Conclusion

49. 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

50. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    R. Skaros
    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

    (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.