Premier Metals Pty Ltd (Migration)

[2019] AATA 5137

Premier Metals Pty Ltd (Migration) [2019] AATA 5137 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Premier Metals Pty Ltd

CASE NUMBER:  1706595

DIBP REFERENCE(S):  BCC2016/1287783

MEMBER:Karen McNamara

DATE:29 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 July 2019 at 1:36pm

CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Other Hospitality, Retail and Service Manager – Yard Manager – need for employee to work in position under nominator’s direct control – position cannot be filled locally – regional Australia – business growth – nominee to be employed in position for 2 years full time – possibility of extension – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 5.19, 5.37(2)(a)

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 10 March 2017 to reject the application by Premier Metals Pty Ltd (the applicant) 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 27 March 2016. 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 Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (4)(a)(ii) of the Regulations because the delegate was not satisfied that the applicant had demonstrated a need to employ a paid employee to work in the position under the nominator’s direct control.

5. The applicant lodged an application for review with the Tribunal on 3 March 2017.

6. Mr Abdullah Abdullah on behalf of the applicant appeared before the Tribunal via video conference on 20 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ali Naqi Jaffare (the nominee), who provided evidence of his employment with the applicant.  

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

8. At the conclusion of the hearing, the Tribunal invited the applicant to provide further documentation (including financial statements, BAS returns, payroll information, bank statements and tax returns from the applicant and nominee) regarding the company's financial position and the employment of the nominee. The Tribunal gave the applicant until      24 June 2019 to provide this information. The applicant subsequently provided this information to the Tribunal on 24 June 2019.

9. Upon review of this documentation, on the 4 July 2019, the Tribunal wrote to the applicant seeking clarification in regard to the total amount declared for salary and wages on their 2018 Business Activity Statements (BAS) and comment as to salary payments to the nominee.  The Tribunal also sought copies of the nominee’s bank statements which despite being requested at the hearing had not been provided to the Tribunal.

10. On 17 July 2019, the applicant provided a written response and additional supporting documentation to the Tribunal addressing the matters raised in the Tribunal’s correspondence of 4 July 2019.

11. 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

12. 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.

13. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

14. The Tribunal discussed with the applicant the requirements of r.19(4). The following is a summary of the oral and written evidence provided to the Tribunal during and following the hearing.

    The application is compliant: r.5.19(4)(a)

15. 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.

16. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). On the 23 July 2019, the applicant provided the Tribunal written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly the requirements of r.5.19(4)(a)(i) are met.

17. In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mr Abdullah Abdullah.

18. The Tribunal accepts on the evidence before it that the nominator operates a scrap metal recycle and automotive dismantling business. The business was registered with ASIC on     6 December 2012 and operates out of Welshpool, Western Australia and Brisbane Queensland. The nominated position is based at Welshpool, Western Australia. The Tribunal was told that the business employs approximately 21 staff with 11 staff based in Western Australia. The business reported an annual turnover for the 2018 financial year of $4,530,895 with net assets of $269,516 and total salary and wage expense $887,040.  BAS returns for 2019 financial year to March 2019 recorded sales of $3,862,140 and total salary and wage expense of $685,524.

19. The applicant told the Tribunal that he has operated the business for five years and has overseen the growth in the business. The business purchases and dismantles motor vehicles and provides parts and scrap metal domestically and overseas. Due to the physical nature of the work and exposure to waste products, the applicant believes these working conditions contribute to a reluctance of people willing to work in this type of industry.  As a result, the applicant has experienced problems in attracting and retaining staff. 

20. The applicant told the Tribunal his business has invested in training staff only for them to leave the business. Loyalty is important to the applicant and he enforced this requirement when he interviewed the nominee for the position. The nominee has been employed by the applicant for approximately two years.

21. The applicant told the Tribunal of his plans to expand the business, particularly the exporting side of the business. The business is currently experiencing an increase in overseas demand for scrap metal and second hand car parts, which has resulted in an increase in yard operations.  This has therefore contributed to the need for a Yard Manager to oversee the logistical and technical operations associated with the export arm of the business.

22. On the totality of evidence before it, the Tribunal is satisfied that the applicant presented a persuasive argument as to why the business requires this position. The Tribunal therefore finds that the application has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement in r.5.19(4)(a) (ii) are met.

23. As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

24. Regulation 5.19(4)(b) requires the applicant is actively, lawfully and directly operating a business in Australia.

25. Based on the material provided to the Tribunal, including, financial statements, Business Activity Statements, ASIC Company details, payroll advice and evidence from the applicant about the operations of the business, the Tribunal is satisfied the applicant is actively and lawfully operating a scrap metal/automotive dismantling business in Australia and directly operates that business.

26. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

27. 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. 

28. There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.

29. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

30. 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.

31. The Tribunal examined the financial information submitted by the applicant. The business’s 2018 Company Tax return and financial statements (including BAS), record an annual turnover of $4,530,895 with net assets of $269,516 and total salary and wage expense $887,040.  BAS returns for 2019 financial year to March 2019 recorded sales of $3,862,140 and total salary and wage expense of $685,524.

32. In considering whether the business has the financial capacity to pay a base salary of $60,000 per annum plus 9.5% superannuation to the nominee for two years, the Tribunal has taken into consideration evidence before it including the business’s financial statements, payroll information and documents submitted to the ATO.

33. The applicant has provided evidence of payment of wages to employees through the provision of BAS and bank statements for the period 31/03/18 to 28/06/2019. The Tribunal also has before it the nominee’s PAYG payment summaries for 2017 and 2018. The nominee also provided the Tribunal copies of his ATO Notice of Assessment’s for 2017 & 2018 and bank statements for the period 20 /12/2017 to 20/06/2019 showing the deposit of wages into his personal account.

34. Based on the evidence before it, the Tribunal is satisfied the applicant can afford to pay a base salary of $60,000 per annum to the nominee and is satisfied that the nominee will be employed on a full time basis in the position for at least 2 years. Accordingly, the requirement in r.5.19(4)(d)(i) is met.

35. The Tribunal has had regard to the signed Contract of Employment (signed and dated 13 June 2016), which sets out the terms and conditions of the nominee’s employment. The contract stipulates that the position is full time and available for a minimum of 2 years from approval of the nominee’s visa and does not exclude the option of renewal. Accordingly, the requirement in r.5.19(4)(ii) is met.

36. As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

37. 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.

38. The Contract of Employment (signed and dated 13 June 2016) sets out the terms and conditions of employment and indicates that the nominee’s salary will be $60,000 per annum excluding superannuation. The contract stipulates that the position is full time and available for a minimum of 2 years from approval of the nominee’s visa. The nominee’s leave entitlements include annual and sick leave.

39. The Tribunal has received payslips and bank statements confirming that the nominee is currently working full time 38 hrs per week and receiving $66,559 per annum. The Tribunal notes the nomination application states the full time base rate of pay per annum is $60,000. The Tribunal is therefore satisfied the nominee will be paid in accordance with the terms of employment.

40. The Tribunal is satisfied on the totality of the evidence before it 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. 

41. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

42. 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. 

43. There is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.

44. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

45. 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.

46. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.

47. 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)

48. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in an instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is 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 locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

49. In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;

50. The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Welshpool, Western Australia, postcode 6101 which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.

51. The Tribunal next considered whether there is a genuine need for the applicant to employ a Yard Manager and for the tasks of that position. The evidence before the Tribunal indicates the applicant is the Director of scrap metal recycle and automotive dismantling business operating at Welshpool Western Australia and Brisbane Queensland. The applicant gave evidence at the hearing that the position is an existing position and in the past he had employed an Australian citizen in the role. Prior to employing the nominee he didn’t get the chance to advertise the position and interviewed the nominee on the basis of him being recommended by another employee. The business is experiencing growth, particularly in the export arm of the business. To meet operational requirements the business requires a position to oversee the logistical and technical operations of the Yard and to oversee the supervision of staff responsible for dismantling and loading. The position is also responsible for the preparation of export documentation.

52. The applicant and the nominee provided the Tribunal with a satisfactory explanation of the duties and tasks associated with the position. The nominee has been working with the applicant since January 2016, in the position of Yard Manager. Tribunal has considered evidence supporting the nominee’s suitability in so far as his experience and qualifications for the position.

53. Information before the Tribunal shows that the nominee has approximately fifteen years’ experience in retail supervision and management. The nominee holds a Diploma of Management obtained in 2015 from the Metro College of Technology Queensland.

54. Having considered the evidence attesting to the nominee’s experience and qualifications the Tribunal is satisfied that the nominee is suitably qualified for the position.

55. The Tribunal is satisfied that there is a genuine need for a paid employee to work in the occupation of Other Hospitality, Retail and Service Manager NEC(ANZSCO 141999) under the nominator’s control. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in a relevant instrument in writing for this sub-subparagraph. Furthermore, the Tribunal is satisfied the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly the requirements of r.5.19(4)(h)(ii) (B) and (D) and (DA) are met.

56. The Tribunal is satisfied that the evidence provided supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant told the Tribunal that in the past, the position was held by an Australian Citizen and that he has been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to fill the position. The applicant advised the Tribunal that he has in the past advertised the position on Gumtree but could not recall how many applications he received.  Due to operational requirements and need to fill the position he interviewed the nominee on the basis of the nominee being referred to him by another employee. The applicant told the Tribunal that he has found it difficult to attract and retain people willing to work in what he described as dirty conditions. The applicant said that in his opinion and experience he had found that Australian’s were not interested in this sort of work and tended not to stay with the business, which as an employer, he found frustrating given the amount of training the business had provided to these staff.

57. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.

1. The Tribunal has cited the completed Form 1404 dated 28 June 2016 from the relevant RCB, Skilled Migration Western Australia, indicating that they are satisfied regarding the matters specified in paragraph (e) and sub subparagraphs (B) and (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.

2. Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.

   Conclusion

3. 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

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

   Karen McNamara
   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).