OTTOWAY ENGINEERING PTY LTD (Migration)

[2022] AATA 3113

OTTOWAY ENGINEERING PTY LTD (Migration) [2022] AATA 3113 (12 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  OTTOWAY ENGINEERING PTY LTD

REPRESENTATIVE:  Ms Cyril Gabito (MARN: 1383988)

CASE NUMBER:  1902246

HOME AFFAIRS REFERENCE(S):          BCC2017/2580922

MEMBER:Justin Meyer

DATE:12 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 12 August 2022 at 9.57am

CATCHWORDS

MIGRATION – nomination of a position (employer nomination) – Temporary Residents Transition Nomination stream – financial capacity to maintain the employment for at least 2 years – training benchmarks – applicant went into administration and was purchased – new owner not a party to the nomination – transfer of nominator's rights and obligations – decision under review affirmed           

LEGISLATION

Fair Work Act 2009
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.13, 1.20, 5.19

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 Home Affairs on 15 January 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 20 July 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(3)(d)(i) of the Regulations because there was no quantifiable financial evidence that the business has the financial capacity to provide permanent full-time position to the nominee for at least two years, nor were the training benchmarks met.

5. The applicant appeared before the Tribunal on 12 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Puya Gopal, who is an executive with the applicant's employer.  

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

9. Summary of the case’s progress

   ·20 July 2017: the applicant, Ottoway Engineering Pty Ltd (“Ottoway”), applied for approval of a nomination of Alexander Saul for a Temporary Residence Transition steam Regional Employer Nomination (subclass 187) visa.

   ·June and July 2018: Ottoway went into administration. Ferretti International Pty. Ltd, (“Ferretti”) purchased the business’s goodwill, continues to operate it under a new company formed for the purpose, which retains employees including the nominee Alexander Saul. The details were submitted to the Tribunal in writing before the hearing and elaborated upon during and after the hearing.

   ·15 January 2019: delegate refuses the nomination.

   The issue at hand.

10. The delegate as noted refused the nomination on the grounds that the applicant’s nomination did not satisfy reg 5.19(3)(d)(i) of the Regulations because there was no quantifiable financial evidence that the business has the financial capacity to provide a permanent full-time position to the nominee for at least two years, nor were the training benchmarks met.

11. The Tribunal heard a variety of evidence about the various requirements of the regulations.

12. Nonetheless the Tribunal noted that even if those other aspects might be satisfied the review of the decision could not successful if the purported ‘new’ applicant – Ferretti – was not a party to the nomination application.

13. A question arises as to whether Ferretti can substitute itself for Ottoway, as it had purchased Ottoway’s business.

14. An executive of Ferretti appeared at the hearing. Ottoway did not. The Tribunal requested the purported ‘new’ applicant to address its standing to continue with the nomination review in place of Ottoway.

15. A post-hearing submission was made.

16. The Tribunal considers the legislative provisions.

17. Regulation 1.03 gives meaning to nominator by regulation 1.13. Sub-regulation 1.13(1) as set out below is clear in its meaning and states that the nominator is the person who or which completes the nomination form nominating another person as an applicant for a visa of a class.

18. Regulation 1.13 (meaning of nominator) states:

    (1) The nominator of an applicant for a visa is a person who, on the relevant approved form, nominates another person as an applicant for a visa of a particular class.

19. Further, Regulation 5.19(1) allows a nominator to apply to the Minister for approval of the nomination of a position in Australia. The meaning given to a nominator is that it can be any person who or which can nominate. Thereafter, the terminology then changes to the nominator as if there can be only one that is the nominator. It is that nominator that has made the nomination application.

20. For example, the nominator must give a written certification stating whether the nominator has engaged in conduct, in relation to the nomination, that is a contravention of subsection 245AR(1) of the Act.

21. That certification must be in the application, and if so, only the nominator who or which made the nomination application can certify.

22. The Migration Act 1958 (Act) and the Regulations are both silent of any provision allowing a for a substitute nominator to take over a nomination.

23. There are other references in regulation 5.19 leading the Tribunal to the finding that there is only one nominator once the nomination application has been made. Once that nomination application is made to the Department, then only that nominator can proceed with the nomination including a review to the Tribunal. In this case, it is noted that the review application was made by Ottoway.

24. Another example is regulation 5.19(4)(h)(i)(B) which refers to the nominator having met the requirements for the training of Australian citizens and permanent residents as specified by the Minister in an instrument in writing if the nominator's business has operated for 12 months or if less than 12 months, the nominator has an auditable plan for meeting the requirements.

25. Regulation 5.19(4)(f) refers to there being no 'adverse information' finding known to Immigration about the nominator or person (meaning the nominee). The Department's control of the immigration process would be fraught with difficulties if the nominator was allowed to sell its business without the Department having been advised and for a substitute nominator to step into the process and avoid the responsibilities with which other nominators are required to comply.

26. There is no provision in the Act and the Regulations for the Department to be informed of a transfer of the nominator's rights and obligations to another.

27. The representative made a submission supporting the contention that Ferretti is able to take over the nomination and be the nominator.

28. I summarise the main points of the submission:

    ·Ferretti acquired the assets, including workers from Ottoway on 28 June 2018.

    ·The nominator cannot in any way provide additional requirements that the department required since the former was no longer existing and has not been operating since July of 2018.

    ·The failure of on the part of the nominator to submit additional document cannot in anyway be attributed to them nor the nominee. It is the department’s issue since no action was taken from the date of application, July 2017, up until its decision of 15 January 2019.

    ·Ferretti’s submissions 10 June 2022 are testaments that nominee, by way of this new employer, meet the criteria set by law.

    ·Ferretti after having acquired the assets, including workers from Ottoway on 28 June 2018 is connected and related to Ottoway; and may be substituted for Ottoway as the nominator in this case. This was a legitimate transfer of business as defined under subsection 311 of the Fair Work Act 2009. The employment of the nominee from the nominator was terminated by virtue of Ferretti’s acquisition of Ottoway’s assets and workers. Within three months after the termination, the nominee was immediately an automatically employed by Ferretti. The work the nominee performs for Ferretti is the same as the work the nominee performed for Ottoway.

    ·While it is true that Ferretti acquired all of the assets and employees of Ottoway, it is equally true that the nature of the business and assets of Ferretti likewise did not change. Since the nature of business and assets of Ferretti did not change, the employer- employee relation of the nominee remained. The fact that there was a valid transfer of business between Ottoway and Ferretti, naturally follows that the latter has assumed all obligations the former had with the nominee.

    ·In the present case, Ferretti may now assume the role of Ottoway as nominator of the nominee in the latter’s pending subclass visa without the need of prior nomination.

    Conclusion

29. The Tribunal finds that Ottoway is and has always been the applicant/nominator and review applicant. Ottoway is the only party having standing before the Tribunal. It was confirmed that Ottoway still exists as a company within the Ferretti group but is has no activities, employees or assets. While for Fair Work Act purposes Ottoway may well have assumed obligations to the nominee, but that does not mean that it is now the applicant.

30. The Tribunal finds that Ferretti did not have standing and while it appeared at the hearing and gave evidence relating to the review of the delegate's decision, it is not relevant to the case that Ferretti might have met the legislative requirements.

31. The Tribunal makes no findings on other substantive matters argued before it, but it observes that that it has no issues with the honesty of the parties. The Tribunal did not identify any other aspects of the regulations that on the face of it would necessarily have prevented the applicant from succeeding it were not for the applicant’s insurmountable standing issues, as identified above.        

32. The Tribunal finds that Ottoway has sold the business to Ferretti and no longer employs the nominee. Accordingly, the Tribunal finds the requirements of regulations 5.19(4)(a)(ii), 5.19(4)(b)(ii) and 5.19(4)(h)(ii)(B) are not met.

    DECISION

33. The Tribunal affirms the decision under review to refuse the nomination.

    Justin Meyer
    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.