Positive Real Estate Pty Ltd (Migration)

[2017] AATA 384

Positive Real Estate Pty Ltd (Migration) [2017] AATA 384 (13 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Positive Real Estate Pty Ltd

CASE NUMBER:  1504827

DIBP REFERENCE(S):  BCC2014/2661664

MEMBER:Rania Skaros

DATE:13 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 March 2017 at 2:12pm

CATCHWORDS

Migration – Nomination – Temporary Residence Transition nomination stream – Training commitments and obligations – Complied with training requirements

LEGISLATION

Migration Regulations 1994, 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 27 March 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 10 October 2014. 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 nomination did not satisfy r.5.19(3)(f) of the Regulations because the delegate was not satisfied that the applicant had demonstrated its training commitments and obligations.

5. Ms Lila Ghani, the Company’s Contracts Manager, appeared before the Tribunal on 1 March 2017 to give evidence and present arguments on behalf of the nominator. The Tribunal also took evidence from the nominee Ms Maria Del Pilar Suescun Bahamon (aka Maria Mazza). Mr Marco Mazza, the nominee’s Australian spouse, attended the hearing but the Tribunal did not consider it necessary to take evidence from him.

6. After the hearing, the Tribunal received further supporting documents, including information relating to the nominator’s payroll and expenditure on training, which are relevantly referred to further below.

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

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. The Tribunal is satisfied on the material in the Department’s file that the application was made in accordance with the approved form and accompanied by the fee prescribed.  The written certification in relation to s. 245AR(1) only applies to applications made from 14 December 2015 and is therefore not relevant in this case. 

12. The application identified Ms Maria Del Pilar Suescun Bahamon (Ms Bahamon) for the nominated position of Marketing Specialist ANZSCO 225113. Departmental records indicate that Ms Bahamon was granted a subclass 457 visa on 2 August 2011 on the basis of satisfying cl.457.223(4) of Schedule 2. At the hearing, Ms Ghani confirmed that Ms Bahamon has been carrying out the role of Marketing Specialist with the nominator.

13. On the evidence, the Tribunal is satisfied that the requirement in r.5.19(3)(a) is met.

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

14. 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.

15. The nominator was most recently approved as a Standard Business Sponsor on 3 November 2010 for a period of 3 years.  Departmental records indicate that the nominator was the sponsor who last identified Ms Bahamon, who is the relevant 457 visa holder, in a nomination made under s.140GB. The Tribunal is accordingly satisfied that that the requirement in r. 5.19(3)(b)(i) is met.

16. The applicant has provided to the Tribunal information evidencing its current operations, including registration documents, activity statements, financial reports, organisational chart and wage records. The Tribunal is satisfied on the material before it that the applicant is actively and lawfully operating a business in Australia. The nominator was not granted the most recent business sponsorship on the basis of operating a business outside Australia. Accordingly, the Tribunal finds that the requirements in r. 5.19(3)(b)(ii) and (iii) are met.

17. Given the above findings, the requirements in r.5.19(3)(b) have been 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. The material before the Tribunal, including Departmental records and employment documents, indicate that Ms Bahamon’s last held Subclass 457 was granted on 2 August 2011 for a period of 4 years and that she has been employed on a full time basis by the nominator as a Marketing Specialist during that time. On this basis, the Tribunal is satisfied that the nominee has been employed full time in Australia in the position for which she 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)

20. 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.

21. Ms Bahamon has been employed by the nominator since 2007, including on a full time basis since her last 457 visa was granted in 2008, except for the period that she was on maternity leave, which was from August 2015 to August 2016.

22. The Tribunal has had regard to the material provided to it, including Ms Bahamon’s PAYG statements, employment history and to the terms and conditions of her employment as set out in the most recent employment contract dated 12 June 2014. Ms Ghani confirmed at the hearing that the nominee continues to be employed in accordance with the terms and conditions set out in the contract of employment. The employment contract indicates that the position offered is full time and ongoing. The Tribunal has also had regard to the applicant’s declaration in the nomination form indicating that it will provide full time employment to Ms Bahamon for a period of at least two years.

23. The Tribunal is satisfied on the totality of the evidence that the applicant will employ Ms Bahamon for at least two years full-time and on terms that do not expressly preclude the possibility of an extension.

24. 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)

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 employment contract for Ms Bahamon indicates that her current base salary is $75,000. The Tribunal has had regard to the terms and conditions of employment as set out in the employment contract and has had regard to the terms and conditions of employment set out in the contract for Ms Annie Riches, an Australian whom Ms Ghani indicated performs equivalent work at the same location as Ms Bahamon. Ms Riches’ base salary is $72,000 and the terms and conditions of employment, particularly relating to bonus and incentive payments and leave entitlements, are the same as the nominee.

27. The Tribunal is satisfied on the evidence 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. Accordingly, the requirement in r.5.19(3)(e) is met.

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

28. 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.

29. The applicant was most recently approved as a standard business sponsor on 3 November 2010 for a period of 3 years.  Ms Ghani indicated that the Company was approved as a standard business sponsor on the basis of meeting training benchmark B (IMMI 09/107), which required the applicant to 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.

30. The delegate in this case was not satisfied that the applicant had demonstrated that they met the requirements relating to training commitments and obligations. On review, the Tribunal received further documents, including a record of the applicant’s annual payroll in the financial years ended 30 June 2011, 2012 and 2013, activity statements indicating the total wages, salary and payments for the same periods, invoices, receipts, correspondence and information regarding the Company’s annual training conference and its cost to the applicant. At the hearing, Ms Ghani gave evidence that the Company is highly committed to training its staff. She stated that the applicant has a strong record of training its staff, most of whom are Australians, and takes its training obligations seriously.

31. Information on the Department’s file indicates that the nominator employed between 31 and 35 in the relevant period and that all of those employed, with the exception of the nominee and another person, were Australian citizens or permanent residents.

32. The material before the Tribunal indicates that the business’ payroll for the relevant financial years are follows:

    a.2011: $1,249,449 (1% is $12,494)

    b.2012: $1,573,688 (1% is $15,736)

    c.2013: $2,573,361 (1% is $25,733)

33. The documentary evidence before the Tribunal indicates that in the financial year ended 30 June 2011, the applicant’s expenditure on training from 29 November 2010 to 29 April 2011 was $9,569. The Tribunal notes that the applicant was not an approved sponsor for the full financial year and calculated its payroll for the period from 1 November 2010, to be approximately $832,966. The Tribunal finds that 1% of this amount is $8,329. The Tribunal is accordingly satisfied that the applicant’s expenditure on training for the relevant period in the 2011 financial year exceeded 1% of its payroll.

34. In the financial year ended 30 June 2012, the applicant’s expenditure on training was $30,289. This amount well exceeds the 1% of the business’ payroll for that fiscal year, which as calculated above is $15,736. The Tribunal is accordingly satisfied that the applicant’s expenditure on training in the 2012 financial year exceeded 1% of its payroll.

35. In the financial year ended 30 June 2013, the applicant’s expenditure on training was $37,221. This amount again exceeds the 1% of the business’ payroll for that fiscal year, which as calculated above is $25,733. The Tribunal is accordingly satisfied that the applicant’s expenditure on training for in the 2013 financial year exceeded 1% of its payroll.

36. On the evidence, the Tribunal is satisfied that the applicant fulfilled the commitments made relating to meeting the training requirements and complied with the applicable sponsorship obligations relating the training requirements during its most recent period of approval as a sponsor.

37. Given the above, the requirement in r.5.19(3)(f) is met.

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

38. 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. 

39. Ms Ghani gave evidence at the hearing that there is nothing adverse known about the nominator or any person associated with the nominator. There is also no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with the immigration laws of Australia. 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)

40. 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.

41. Ms Ghani gave evidence at the hearing that the nominator has complied with all relevant workplace relations laws. 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 the nominator operates a business and employs staff. The Tribunal is accordingly satisfied that the requirement inr.5.19(3)(h) is met.

    Conclusion

42. 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

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

    Rania 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.