Pillingers Hiring Service Pty Ltd (Migration)

[2021] AATA 2135

Pillingers Hiring Service Pty Ltd (Migration) [2021] AATA 2135 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Pillingers Hiring Service Pty Ltd

CASE NUMBER:  1812884

HOME AFFAIRS REFERENCE(S):          BCC2017/1745882

MEMBER:Glenn O’Brien

DATE:9 April 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 09 April 2021 at 11:23am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – Conference and Event Organizer – nominated occupation corresponds to a specified occupation – would not be employed on a full time basis in the position for at least 2 years –decision under review affirmed

LEGISLATION
Corporations Act 2001, S 50AAA
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 2.72, 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 13 April 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 16 May 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).

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) of the Regulations because the delegate was not satisfied the nominee was employed in the position nominated and performing the duties of the position in respect of which the nominee holds the Subclass 457 (Temporary Work) visa, and the nominee’s 457 visa was not granted on the basis that he was identified in a nomination of an occupation mentioned in s.2.72(10(d)(iii)(B) or 2.72(10)(e)(iii)(B).

5. On 9 November 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.5.19 of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, financial records, ASIC information, an employment contract (SBS), an organisational chart, work samples and various training documents and invoices. There were 15 annexes to the written submissions filed by the applicant on 23 November 2020. Further documents were filed on 22 and 31 December 2020. All material received prior to the review hearing has been duly considered by the Tribunal.

6. Mr Christian Lamberty and Ms Nathalie Green represented the applicant and appeared before the Tribunal on 7 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Melanie Lucas.

7. After the hearing, the applicant through its registered migration agent, filed further submissions on 29 January 2021 of approximately 67 pages.  Those submissions have been carefully reviewed and considered in the review.

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

9. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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.

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

11. 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 two of the three 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 two years in the three years immediately before the application.

12. The nominee commenced employment with the applicant on 13 August 2014, then as a Subclass 457 visa holder for more than two years, and subsequently, the subclass 186 nomination application was made on 17 May 2017.

13. The delegate refused the nomination in part on the basis that the nominee was not employed full time in the position for which he holds a Subclass 457 visa for at least two of the proceeding three years.

14. The delegate was concerned, on the evidence before him that the nominee had been employed exclusively as a Conference and Event Organiser in accordance with the tasks as set out in ANZSCO 149311. 

15. The applicant, through submissions made by the registered migration agent on 29 January 2021 submitted the Tribunal must be satisfied that the nominee has been employed in the nominated occupation for at least two years of the three years preceding the nomination application.

16. While the Tribunal is satisfied the documents establish the nominee was employed by the applicant for the requisite period (and that the employing entity being, Graffham Pty Ltd is an associated entity of the applicant pursuant to s.50AAA of the Corporations Act 2001) the issue before the Tribunal was whether or not he was employed in the nominated position.  In determining that issue it is entirely appropriate to consider the tasks performed by the nominee during the requisite period with the corresponding tasks as set out in ANZSCO which is as follows:

    UNIT GROUP 1493 CONFERENCE AND EVENT ORGANISERS

    
    CONFERENCE AND EVENT ORGANISERS organise and coordinate services for conferences, events, functions, banquets and seminars.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    
    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    opromoting conferences, conventions and trade shows to potential customers

    oresponding to inquiries concerning services provided and costs for room and equipment hire, catering and related services

    omeeting with clients to discuss their needs and outlining package options to meet these needs

    oarranging and coordinating services, such as conference facilities, catering, signage, displays, audiovisual equipment, accommodation, transport and social events, for participants

    oorganising registration of participants

    onegotiating the type and costs of services to be provided within budget

    ooverseeing work by contractors and reporting on variations to work orders

    
    Occupation:

    149311 Conference and Event Organiser

    
    149311 CONFERENCE AND EVENT ORGANISER
    
    Alternative Title:

    Event Management Consultant

    
    Organises and coordinates services for conferences, events, functions, banquets and seminars.

    Skill Level: 2

17. A position description has not been provided to the Tribunal, however in the applicant’s letter dated 20 April 2017 and provided to the Department the tasks of the nominee are said to be as follows:

    ·Promote hiring services for events such as weddings, corporate outings, festivals and events, conventions, conferences, and parties to potential customers;

    ·Organise and coordinate hiring services for events such as weddings, corporate outings, festivals and events, conventions, conferences, and parties;

    ·Liaise with clients to ascertain their precise service requirements and outline various event packages that meet their needs;

    ·Respond to inquiries about the various event packages and its associated costs such as venue hire, catering etc;

    ·Negotiate the type and cost of the services to be provided within budget;

    ·Organise the registration of event participants;

    ·Organise and coordinate work by venue management, caterers, stand designers, contractors, audio and sound personnel, equipment hire etc and report on variations to work orders;

    ·Arrange and coordinate services such as transport, accommodation and social events for participants;

    ·Liaise with marketing and PR staff to promote the event;

    ·Oversee the dismantling and removal of the event and clearing the venue efficiently; and

    ·Post-event evaluation and producing reports for event stakeholders.

18. The Tribunal has carefully reviewed the work examples of the nominee provided to both the Department and the Tribunal in addition to the calendar entries (mostly dated 2014, 2015, and 2018) and emails provided. 

19. The delegate reviewed the documents before him, in particular details about an interview with Mr Lamberty which occurred onsite on 14 December 2017 and Mr Lamberty’s subsequent statutory declaration to the Department.  Further documents were provided to the delegate addressing the issues raised.  The applicant also made further submissions to the Tribunal. 

20. The applicant explained that the applicant is a family business and that the nominee does attend worksites.  The applicant told the Tribunal that sales generally receive enquiries from customers which are then allocated to the event organiser.  Sales have the role of initiating the event and create a job order which is then turned into an invoice order or contract.  The event organiser oversees the contract.  In that role he discusses what is required for the event and passes any additionally agreed requirements to the sales department who add it to the customer order.  The process of permits, access, entry and exit to the site is controlled by the event organiser.

21. Having reviewed the various documents provided by the applicant, including calendar entries, hire contracts and load lists, in addition to the oral evidence of the applicant representatives, it is apparent the nominee’s primary tasks do not relate to the promotion of conferences or events or the initial costing of such events, which is undertaken by sales.  None of the hire contracts provided (as work samples of the nominee) list the nominee as the salesperson. 

22. Those documents list “Nomi” (a name by which the nominee is also known within the applicant) as either delivering or collecting hired equipment. 

23. The applicant told the Tribunal that the nominee does attend on site and discusses with client representatives what is required and passes those requirements to the sales team to add on to the order which is then executed by the operations team.

24. It is not necessary that the applicant undertake all the tasks of the position in accordance with those set out in ANZSCO.  The Tribunal is satisfied that the nominee does undertake some of the tasks as set out in ANZSCO, in particular responding to (onsite) inquiries concerning services provided and costs for equipment hire, catering and related services, meeting with clients to discuss their needs, and overseeing work by contractors and reporting on variations to work orders. The Tribunal finds the predominant task of the nominee is the delivery, set up, dismantling and/or removal of hired equipment. 

25. While it is a fine balance, based upon the evidence provided and having regard to the tasks of a Conference and Event Organiser (ANZSCO 149311) the Tribunal is not satisfied the tasks of the nominated position within the applicant company correspond to the specified position for which the nominee holds the Subclass 457 (Temporary Work)(Skilled)) visa .  The Tribunal therefore finds the nominee has not been employed in the position in respect of which he holds the Subclass 457 (Temporary Work)(Skilled) visa for a total period of at least two years.

26. Given the above findings, the requirement in r.5.19(3)(c) is not met.

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

27. 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 two years on terms that do not expressly preclude the possibility of an extension.

28. During the course of the hearing it was disclosed that the nominee had been on unpaid leave since March 2020.  Notably, none of the applicant’s submissions prior to the hearing indicated the nominee had not been in full-time paid employment since March 2020.  The applicant’s registered migration agent’s written submissions dated 22 November 2020 asserted “[W]e also submit that the Nominee has been performing the work as a Conference and Event Organizer from when he was granted a Subclass 457 visa until now”.  The Tribunal does not accept that is accurate as the nominee has not been undertaking paid work in that role since March 2020.

29. In post hearing submissions the applicant’s registered migration agent submitted:

    The Nominee has been on unpaid leave since April 2020 to COVID-19 and its impact on the Applicant who is in the event hiring industry. This arrangement is not because of the fault of the Applicant and the nominee. As an event hiring company, the Applicant needs to rely on outdoor projects and events. Since the pandemic outbreak, mass gathering has been banned globally and as per Australian Government’s directive too. Like many other businesses and industries, the Applicant is affected.

    Nevertheless, as explained by the Applicant during the hearing, the business is recovering well, and the Nominee will start performing work for the Applicant soonest.

    The Department of Home Affairs itself has recognized this hardship and effect of the

    pandemic. The Migration (IMMI 18/052: Specified Persons and Periods of Time for
    Regulation 5.19) Instrument 2018 provides concessions for specified Subclass 457 visa holders whose work hours were reduced or were required to take unpaid leave due to the pandemic. The effect of this instrument is that the period of time required to be employed in the occupation and the position for TRT stream Subclass 186 nominations and visas, will not be affected by the visa holder working reduced hours or being on unpaid leave during the concession period, as a result of the coronavirus pandemic. The concession period starts 01 February 2020.

30. The Tribunal has considered IMMI 18/052.  The instrument applies in relation to an application made on or after 18 March 2018 (Part 5 of IMMI 18/052).

31. The present application was made on 16 May 2017, accordingly, IMMI 18/052 does not apply to this application.

32. Even if it did apply, the evidence of the applicant is that as the date of the hearing being 7 January 2021 (and confirmed to be the case as at the date of further submissions made on 29 January 2021) the nominee was not working in the nominated position and had not engaged in paid employment since April 2020.  The Tribunal is satisfied the business of the applicant has been adversely affected by COVID-19 but continues to operate at a reduced capacity.  The applicant representatives were unable to specify when the nominee would return to work noting it is “a little bit vague” but events were slowly happening and that there was not a great need for the position at present.

33. The applicant, however, told the Tribunal that the business was financially in very good condition, however, the nominee position was required for the business to properly function and move forward.  A comparison was made in relation to other occupations and businesses asserting the position of an event organiser is always needed the same way a restaurant needs a cook and a hospital needs a doctor.

34. In post hearing submissions the applicant’s registered migration agent also asserted:

    At the hearing, the Applicant has confirmed in confidence that they do not have any issues in paying the Nominee the nominated base salary upon the grant of his subclass 186 visa.

35. The fact however is that the business continued to operate at a reduced capacity without the nominee undertaking paid work in the nominated position for at least nine months.  The applicant is not providing financial support to the nominee through paid employment.  There is no certainty as to when, or if, the nominee will return to full-time employment.  The applicant’s confidence in paying the nominee his salary on the grant of a Subclass 186 visa is entirely different to whether or not the nominee will be employed.  The evidence of the applicant is that the nominee is not currently engaged in paid work and that there is not a great need for the position presently.  The grant of a Subclass 186 visa does not change whether or not the applicant will be employed on a full-time basis for two years as the decision by the applicant not to engage the nominee in paid full-time work since April 2020 is on the basis of need rather than visa status.

36. In considering the evidence as a whole, the Tribunal is not satisfied that the nominee will be employed on a full-time basis in the position for at least two years and the applicant does not therefore meet the requirements as set out in r.5.19(3)(d)(i).

37. Given the above findings, the requirement in r.5.19(3)(d) is not met.

38. For the sake of completeness, the Tribunal considered potentially adverse matters that were disclosed by the applicant in relation to what it described as a minor outcome in relation to false and misleading information which resulted to a bar being imposed on the applicant for a six month period from around March 2020 to 6 November 2020.  Ms Lucas explained to the Tribunal that it was a result of payroll information provided to the Department which was printed in 2019 but related to periods in 2016 and 2017 and technical issues around the details that were provided on the financial records. 

39. These matters were not relevant to the matters upon which the Tribunal has decided the review and no adverse inference was drawn from the matters disclosed by the applicant in relation to the bar.  Notably, the bar is no longer in force and no monetary penalty was imposed.

40. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in the Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

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

    Glenn O’Brien
    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.