Power System Design Pty Ltd (Migration)

Power System Design Pty Ltd (Migration) [2019] AATA 2828 (29 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Power System Design Pty Ltd
CASE NUMBER:  1802392
DIBP REFERENCE(S):  BCC2017/2087590
MEMBER:Peter Emmerton
DATE:29 May 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 29 May 2019 at 1:28pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Electrical Engineer – genuine need – ongoing staffing growth – challenges associated with recruiting and retaining suitably experienced staff – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), s 245AR, rr 1.13, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 January 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).
The applicant applied for approval on 13 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.194(4)(a)(ii) of the Regulations because they were not satisfied that the nominator had demonstrated the need for a paid employee to work in the position under the direct control of the nominator.
The applicant was represented in relation to the review by its registered migration agent.
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
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The nominating entity runs a large electrical engineering and construction company in the northern suburban Adelaide region of South Australia.
The visa applicant’s responsibilities, qualifications, experience and attributes, clearly align with the duties associated with an Electrical Engineer, ANZSCO 233311.
The Tribunal is cognisant of the challenges associated with recruiting and retaining suitably experienced staff working in moderately sized consulting engineering businesses in a competitive field.
The Tribunal received from the nominator, substantial evidence of the salary determination, recruitment processes and associated advertising in support of their recruitment for the position and their subsequent wage determination. The Tribunal also notes the 2-year employment contract with the provision for extension. The original nominated salary package was $52,340 inclusive of Superannuation, as of 31 may 2017. A salary increase was awarded on 1 July 2018 to $56,792 inclusive of Superannuation and a Performance Bonus of $1,500 was provided in December 2018. This appears to align with the mid-point of remuneration for similar roles at this level of experience.
The Tribunal perused popular employment web sites in order to ascertain the current state of the market in this field. The Tribunal observed a reasonably large number of related vacancies, in a wide variety of locations and organisations currently under recruitment. The Tribunal is cognisant that many of the observed positions may appear to be equally or more attractive environments to some candidates than the nominated position in this northern suburban Adelaide location.
The Tribunal notes that a ‘Satisfied’ RCB Certificate has been issued by the relevant certifying body. The date of the certificate is 9 February 2018.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal finds that the application was lodged electronically using the elodgement facility. The nomination was made under the RSMS Direct Entry stream (r.5.19(4)(h)(ii)) and consequently no fee is payable. The Tribunal finds the applicant meets r.5.19(2).
The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.194(4)(a)(ii) of the Regulations because they were not satisfied that the nominator had demonstrated the need for a paid employee to work in the position under the direct control of the nominator. The Tribunal has formed a different view, in part as a result of the additional materials supplied to it which were not provided to the delegate in the original application.
The Tribunal notes from the current Organisation Charts that the business is operating on a substantial and expanding staffing ratio, which has come about due to the rapidly expanding commitments to clients. The Tribunal notes that revenues between FY 2017 and FY 2018 have increased by 55%. This substantial increase in client engagement would in the Tribunal’s experience, reasonably be expected to require substantial ongoing staffing growth.
The Tribunal notes the supporting statements of both the firm’s accountant and the organisation’s senior management.
The Tribunal is satisfied that the application has identified a need for a paid employee to work in the position of Electrical Engineer, ANZSCO 233311 under direct control of the applicant. The application has included the required written certification relating to conduct that contravenes s.245AR(1). Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
The Tribunal was provided with a range of Business Tax Returns and Profit and Loss Statements including those produced for FY 2017 and FY 2018, all of which correlated. ASIC Registration details were provided, the Tribunal checked the status of the listed ABN and perused the company web site. The Tribunal is satisfied that the applicant is actively, lawfully and directly, operating a business in regional Australia. Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator. The Tribunal finds that r. 5.19(4)(c) is not relevant to the current nomination.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal notes that the business appears to be in a healthy state and has substantial revenues, which are growing rapidly. The revenue increase from FY 2017 to FY 2018 was 55% with a correlating growth in profit. The long-term stability of the nominating entity further attests to its’ ability to employ the visa applicant as does the letter of support provided by their accountants. The Tribunal is satisfied that the business will be able to sustainably, employ the nominee for the required 2-year minimum period.
The Tribunal has had regard to the Employment Agreement and position description. It is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
The Tribunal observes that one of the potential challenges facing the business is retaining the visa applicant and the nominator’s obvious reliance upon their services as they grow their business and attempt to mature their human resources. It notes that the workforce is highly mobile in similar technology consulting organisations and a common factor limiting growth is successful recruitment, training and retention of their human resources. The specialist skills associated with this type of operation are highly sought after and readily transferred between competing businesses or poached by clients, particularly as team members grow in maturity and experience.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(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.
The Tribunal has been provided with the visa applicant’s employment contract and subsequent addendum issued in July 2018. The Tribunal accepts that the nominee’s annual salary of $56,792 inclusive of Superannuation plus a recent bonus of $1,500 as appropriate and is reflective of his experience relevant to the nominated position. The Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence provided by the applicant. It is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience performing equivalent work in the same workplace or a similar workplace. Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia. Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant 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. The Tribunal notes that there is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia. Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains alternative requirements. These are set out in detail in the attachment to the decision. As stated above the nomination was made under the RSMS Direct Entry stream and the Tribunal has proceeded to assess the application against the criteria in r.5.19(4)(h)(ii) which require that:
·the position and nominator’s business are located in regional Australia;
·there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a Australian citizen or permanent resident;
·the tasks of the position correspond to those of an occupation at the ANZCO skill level 1, 2 or 3; and
·a regional certifying body has advised the Minister about certain matters relating to the position.
The Tribunal notes the statement made by the organisation’s accountant that the staffing levels have risen from 30 at the end of FY 2016 to 64 at the end of FY 2018. It also notes that there are now 11 temporary visa holder engineers compared to 3 in 2017. This further attests to the real and increasing need for these skills and associated positions.
The Tribunal is satisfied that there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, particularly in light of the expansion as previously stated in paragraph 18.
Evidence was presented regarding the recruitment process and the subsequent selection of a suitable candidate for the visa applicant’s role. The Tribunal acknowledges that a range of similar roles are readily available and that the demands of the job coupled with the northern suburban location may not have proven overly attractive to some candidates.
The Tribunal observes that a substantially more comprehensive evidence base was provided to it, than was presented to the delegate at the time of their decision. The Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident. The Tribunal is satisfied that the nominator’s business is located in regional Australia.
Regulation r.5.19(4)(h)(ii)(D), requires that the tasks to be performed in the position correspond to those at ANZSCO skill level 1, 2 or 3. The Tribunal has reviewed both the relative descriptors supplied in ANZSCO 233311 for Retail Manager Electrical Engineer and the stated duties of the visa applicant.
The position of Electrical Engineer, ANZSCO 233311, nominated by the applicant is referred to in ANZSCO, as a skill level-1 position and the Tribunal is satisfied that the visa applicant is operating at that level.
The Tribunal is satisfied that the applicant meets 5.19(4)(h)(i) and 5.19(4)(h)(ii).
The Tribunal has had regard to Form 1404 issued by an RCB (Department of State Development), dated 9 February 2018 and is satisfied that the applicant has advised the Minister about matters relating to the terms and conditions of employment, the genuine need for the position and that the position cannot be filled locally.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton
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.
…
Direct Entry nomination
(4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’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)       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
(g)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
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2019] AATA 2828

29 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies