Ozzy Fortune Group Pty Ltd (Migration)

[2019] AATA 735

Ozzy Fortune Group Pty Ltd (Migration) [2019] AATA 735 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ozzy Fortune Group Pty Ltd

CASE NUMBER:  1816802

DIBP REFERENCE(S):  BCC2017/2332303

MEMBER:R. Skaros

DATE:10 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 10 April 2019 at 10:37am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Program or Project Administrator - 511112 – financial capacity of applicant to employ nominee full-time for two years­ – evidence of financial capacity provided – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR(1)
Migration Regulations 1994, Schedule 2, r 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 Immigration on 26 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).

2. The applicant applied for approval on 30 June 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 (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 the 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)(d)(i) of the Regulations because the delegate was not satisfied that the applicant had the financial capacity to employ the nominee in the nominated position on a full-time basis for at least two years.

5. The applicant’s Director, Mr Dannis Arora, appeared before the Tribunal on 25 February 2019 to give evidence and present arguments on behalf of the applicant.

6. The Tribunal notes that this matter was heard together with case number 1706736, which was also an application for review of a decision to a refuse an employer nomination for the same position in respect of the same nominee. In matter number 1706736, the Tribunal set aside the Department’s decision and substituted a decision approving the nomination. There is nothing in the Regulations that prohibits the Tribunal from considering multiple nominations of a particular position, even where that position has already been approved. In the circumstances, where a valid application for review has been made and the applicant has not withdrawn from the review, the Tribunal considers that it must still carry out a review of the decision to refuse the nomination.

7. The applicant was represented in relation to the review by its registered migration agent. The representative attended the hearing.

8. 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

9. 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)

10. 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.

11. On the basis of information in the Department’s file, the Tribunal is satisfied that the nomination was made on the approved form, that the prescribed fee has been paid and that the relevant written certification relating to conduct that contravenes s.245AR(1) has been provided as part of the application form.

12. The Tribunal is also satisfied, on the basis of information in the Department’s file, that the application for approval identifies Mr Palwinder Singh as the relevant 457 visa holder and identifies the  occupation (Program or Project Administrator - 511112) in relation to the position that is listed in ANZSCO and has the same 4-digit occupation unit group (5111) as the occupation carried out by the relevant holder of the subclass 457 visa.

    Given the above, the requirements of r.5.19(3)(a) are met.

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

13. 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.

14. Departmental records confirm that the nominator is the standard business sponsor who last identified Mr Palwinder Singh in a nomination made under section 140GB of the Act.

15. The Tribunal has received current evidence that the applicant is actively and lawfully operating a business in Australia, including an ASIC current and historical statement, business activity statements, financial report for year ended 30 June 2018, a letter from the applicant’s accountant, bank records and an organisational chart.

16. The Tribunal has also had regard to Departmental records and is satisfied that the applicant 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).

17. Given the above, the Tribunal is satisfied that the requirements in r.5.19(3)(b) are met.

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

18. 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.

19. In this case, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 on 13 September 2013 to work in the nominated occupation of Program or Project Administrator with the nominator. This nomination was lodged on 30 June 2017. At the hearing, Mr Arora provided details of the tasks carried out by the nominee in the position, which the Tribunal is satisfied is consistent with the occupation of Project Administrator.

20. The Tribunal has had regard to payroll documents for the nominee, including the payslips for the years 2014 through to 2018 and tax assessment notices for the nominee for the 2014, 2015 and 2016 financial years. The Tribunal has also had regard to the business’ bank records which show regular wage transfers to the nominee.

21. On the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the relevant position for at least 2 years in the 3 years before the nomination was made. The requirements of r.5.19(3)(c)(i) are therefore satisfied.

22. 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)

23. 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.

24. The Tribunal has before it a copy of the most recent signed employment contract in respect of the nominee, dated 10 August 2018, which states that the applicant will provide full time employment for the nominee for a period of 2 years. The contract states that the nominee’s salary will be $66,560 plus superannuation.

25. The Tribunal has had regard to the applicant’s financial capacity to employ the nominee and is satisfied, on the basis of the applicant’s financial reports and its ability to maintain the nominee’s employment to date, that the applicant can provide employment to the nominee for a period of at least 2 years.

26. Given the above, the Tribunal is satisfied 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. It follows that the requirement in r.5.19(3)(d) is met.

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

27. 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.

28. The applicant informed the Tribunal that the business employs another Project Administrator who is an Australian permanent resident however, that employee is based in Darwin NT. The applicant provided an organisational chart which indicates that there are no equivalent Australian employed in the same position at the same location (Sydney NSW). It was submitted that the nominee’s salary is consistent with market rate information, including similar job vacancies, data from Job Outlook, ABS and Pay Scale, for Project Administrators in Sydney. The supporting documents provided indicate that the annual base salary for Project Administrators in Sydney is between $55,000 and $65,000.

29. As the nominated base salary exceeds the salary range, the Tribunal is satisfied that the terms and conditions applicable to the nominated 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 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. The applicant was most recently approved as a standard business sponsor on 6 September 2018 for a period of five years. The requirements at the time of the most recent sponsorship approval did not include any training commitments that have to be fulfilled by the applicant. The Tribunal further notes that the sponsorship obligation to provide training does not apply in this case. In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied.    

33. Accordingly, the requirement in r.5.19(3)(f) is met.

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

34. 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. 

35. The Tribunal had regard to the Department’s electronic records for the applicant, which indicates that the outcome of the Department’s monitoring of the applicant was finalised as ‘Genuine’ on 2 June 2016. The Department’s electronic records also indicated that information had been received in March 2016 from the Department of Fair Trading Queensland regarding a possible breach of the Australian Consumer Law.

36. At the hearing, the Tribunal queried Mr Arora regarding the investigations undertaken by the Department of Fair Trading QLD. Mr Arora gave evidence that a settlement agreement had been reached between the applicant and Department of Fair Trading and that the matter had been finalised without any adverse findings. After the hearing, the Tribunal received information indicating that the applicant entered into an enforceable undertaking, without prejudice and without admission basis, with the Commissioner of Fair Trading QLD and the Commissioner of Fair Training NSW and that the investigations have been finalised. Departmental records do not indicate any adverse findings against the applicant as an outcome of the investigations. The Tribunal further notes that the Department, since finalisation of the investigations, has approved the applicant as a standard business sponsor.

37. Having regard to the relevant definition of adverse information in r.1.13A, the Tribunal notes that the information before it relating to the investigations does not indicate that the applicant, or an associated person, has been found guilty of an offence, acted in contravention of a relevant law or has been the subject of an administrative action for contravention of such a law. Furthermore, at the time of this decision, the applicant is not under investigation and is not subject to disciplinary action or legal proceedings regarding contravention of a relevant law.

38. On the information before it, the Tribunal finds that there is no adverse information known to the Immigration about the nominator or an associated person. Accordingly, the requirement in r.5.19(3)(g) is met.

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

39. 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.

40. Mr Arora gave evidence at the hearing that they have complied with all applicable workplace relations laws. There is also no evidence before the Tribunal to indicate 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. The Tribunal accordingly finds that the requirement in r.5.19(3)(h) is met.

    Conclusion

41. 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

42. 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

    (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); 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.