PUBLISHER TEXTILES PTY LTD (Migration)

PUBLISHER TEXTILES PTY LTD (Migration) [2019] AATA 6203 (29 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Publisher Textiles Pty Ltd
CASE NUMBER:  1711555
DIBP REFERENCE(S):  BCC2016/4001850
MEMBER:Wan Shum
DATE:29 October 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 October 2019 at 3:51pm
CATCHWORDS
MIGRATION – nomination of a position (employer nomination) – Temporary Residents Transition Nomination stream – position of Screen Printer – employed in the position for at least 2 years previously – evidence of meeting training obligations – evidence of the nominee’s relevant duties and responsibilities – standard business sponsor – financial capacity to maintain the employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140GB, 245
Migration Regulations 1994, Schedule 2 cl 457.223; rr 1.13, 1.20, 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 22 May 2017 to reject an application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
Publisher Textiles Pty Ltd (the nominator) applied for approval on 28 November 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).
In this case, the application for approval of a nomination was sought for the position of Screen Printer, under the Temporary Residence Transition nomination stream. The nominator had earlier sponsored Mr Mohamed Salim Javed Pookhan for a Subclass 457 visa for the same position and occupation, and wished to continue to employ him for the position. Mr Pookhan lodged a Subclass 186 visa application in respect of this nomination.
The delegate refused the application on the basis that the nomination did not satisfy r.5.19(3)(c)(ii)(A) of the Regulations because insufficient evidence was provided that the nominee had been employed in the position for at least 2 years prior to the application. Mr Pookhan’s Subclass 186 visa was refused as a consequence of the nomination being refused.
Both the nominator and Mr Pookhan have sought review of these decisions. Both are represented in relation to the review applications by the same registered migration agent.
Mr Mark Cawood appeared on behalf of the nominator at a hearing of the Tribunal on 1 October 2019 to give evidence and present arguments in support of this application. The Tribunal also received oral evidence from Mr Pookhan in respect of the related visa application. Their representative attended the Tribunal hearing.
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 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 nominator had sponsored Mr Pookhan for a temporary business entry (Subclass 457) visa for the position of Screen Printer which was granted in July 2014.
Prior to the hearing the nominator provided evidence in support of the review application including: Financial Statements, Income Tax Returns, Organisational Chart, Employment Agreement and Payroll information in respect of the nominee and for Mr Remi Read-Fowler.
The Tribunal also requested evidence as to the training obligations being met which were submitted following the hearing.
As noted above, the delegate found that the nominator did not meet r.5.19(3)(c)(ii)(A) of the Regulations as the nominator did not provide sufficient supporting evidence to satisfy the delegate that it had employed the nominee for at least 2 years in the 3-year period immediately before this nomination application was made.
However, in this case, it is r.5.19(3)(c)(i) that needs to be met. This requires that 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…
Having regard to the information provided, including payroll summaries, bank account statements, PAYG summaries and evidence given at the hearing, the Tribunal is satisfied that the nominee had been employed full time as a Screen Printer by the nominator since the grant of the Subclass 457 visa in July 2014 . There is in fact evidence that he was employed in a full-time capacity there since 1 July 2011. The Tribunal thus finds that Mr Pookhan, as the holder of the Subclass 457 visa, was employed full-time in the position for which he held the Subclass 457 visa for a total period of at least 2 years in the 3-year period immediately before this nomination application was made. The Tribunal is satisfied on the evidence that the employment was undertaken in Australia.
Given this, the requirement in r.5.19(3)(c)(i) is satisfied and r.5.19(3)(c) is met.
The Tribunal will now consider the remaining requirements for approval under the temporary residence transition stream.
The application must be compliant: r.5.19(3)(a)
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, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.
On the basis of the information in the Departmental file, the Tribunal is satisfied that the application was made on the relevant form and accompanied by the prescribed fee.
A written certification was provided in the form stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.
The application identifies Mohamed Salim Javed Pookhan who, according to Departmental records, held a Subclass 457 visa granted on 26 July 2014 on the basis of satisfying cl.457.223(4) of Schedule 2.
The occupation identified in the application is Screen Printer, which is listed in ANZSCO with a 4-digit occupation unit group code of 3921. The information given about Mr Pookhan’s duties and responsibilities at hearing is consistent with the tasks set out in ANZSCO for this occupation.
On the information before it, the Tribunal is satisfied that the occupation identified in the application is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
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.
On the basis of the Department’s records and oral evidence at the hearing, the Tribunal is satisfied that the nominator was the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act or under r.1.20G or 1.20GA (pre 14 September 2009).
Given the above, the requirement in r.5.19(3)(b) is met.
Future employment of the visa holder: r.5.19(3)(d)
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.
The Tribunal has before it the most recent Employment contract signed between the nominator and the nominee dated 14 July 2018. The contract indicates that it comes into effect on approval of the Subclass 186 visa and guarantees two years of employment in a full-time position. It provides that the hours of work are 8 am to 4pm Monday to Friday with a base salary of $54,000 per annum plus superannuation of 9.5%.
The Managing Director confirmed it is the nominator’s intention to provide employment for the nominee continually.
The Tribunal has had regard to the nominator’s financial statements, BAS, payroll advices, and PAYG payment summaries for the nominee. The nominator’s sales income has been steady, with modest profits. The nominator’s salaries and wages expenses have been steady, just under $200,000 per year.
The nominator’s financial statements of 2018 and the latest BAS reflect capacity to continue employment of the nominee.
The nominator has employed the nominee since 2011, and given him additional responsibilities including training the apprentices, particularly during periods where the Managing Director had personal time away from work.
Having regard to the lengthy period of employment already, the Tribunal accepts that the nominator has the financial capacity to continue to employ the nominee for another 2 years and meet all employment obligations. The Tribunal is therefore satisfied that the nominator has the financial capacity to maintain the nominee's employment.
On the basis of the supporting documents and oral evidence, the Tribunal is satisfied that the nominee will be employed on a full-time basis for at least 2 years on terms and conditions that do not exclude the possibility of extending the period of employment.
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)
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.
The owner/Managing Director advised at hearing that he is the Australian performing equivalent work in the same workplace at the same location. He confirmed that he and the nominee were being paid the same salary. The Tribunal referred to the contract and noted that the owner had signed the agreement as the employee and also as the CEO of the business. The Tribunal indicated that this may be a problem, and it is unclear whether that contract is valid/enforceable in law. The terms and conditions are identical to those set out in the most recent contract signed by the nominee and Ms Stephanie Isaac-Newton, Operations and Financial and Human Resources Manager, on behalf of the nominator.
In any case there is an Award in place, the Textiles, Clothing, Footwear and Associated Industries Award 2010 which indicates that the minimum weekly gross wage is currently $916.60 for Classification level 5. The Tribunal accepts that the weekly wages of $1,038 is above the award rate.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
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.
The most recent sponsorship approval period commenced 2 July 2014 until 2 July 2017. The CEO confirmed that they did not have a more recent sponsorship approval. The commitment relating to meeting the training requirements must be fulfilled each year that the nominator is approved as a standard business sponsor.
Before the Department, it was submitted that the nominator had engaged an apprentice, Mr Remi Read-Fowler, who is an Australian citizen. His entire wages were submitted as evidence of fulfilling Training benchmark B for the sponsorship period.
The Tribunal was presented with a table of wage payments made to Mr Read-Fowler.
As evidence that he was an apprentice, a letter from NSW State Training Services was provided, dated 15 June 2015, regarding Mr Read-Fowler’s apprenticeship with the date of commencement as 18 May 2015. The name of the traineeship is given as ‘Printing and Graphic Arts (Digital Printing) Certificate III’. However, the evidence at hearing is that the TAFE course was discontinued. According to the email from TAFE that has been provided after the hearing, the Screen Printing Certificate III course was stopped in November 2015 and the screen printing department was closed in August 2016. It thus appears that the course ran for approximately 9 months.
The Tribunal was also provided with course outcome outlines for the following: Water-based screen printing; two copies referred to as Wallpaper Installation; and Wallpaper Trimmer course. However, one of the Wallpaper Installation Course papers appears to refer to ink mixing and colour production. It was submitted that this met the requirements of IMMI 13/030 for permissible on-the-job training. The trainer in these courses was Mark Cawood, the owner and CEO of Publisher Textiles Pty Ltd, the nominee and Mr Shayne Stone, CEO of Dynamic Colours.
However, it is not clear to the Tribunal based on Mr Read-Fowler’s results from TAFE that the units are those that he would have needed to complete for his traineeship. The course names include digital production units which do not appear to have been delivered as part of the “on-the-job” training based on the information provided.
Given this uncertainty, the Tribunal is only prepared to accept the salary paid to Mr Read-Fowler as meeting the requirements of Benchmark B while the traineeship was approved and the Certificate III course was offered, i.e. from 18 May to November 2015. This period crosses over Year 1 (2 July 2014 - 1 July 2015) and Year 2 (2 July 2015 - 1 July 2016) of the sponsorship approval, but not Year 3 (which commenced 2 July 2016).
According to a copy of the PAYG payment summary for year ending 30 June 2015, the gross payments for 1 April 2015 to 30 June 2015 to Mr Read-Fowler was $5,460. As the traineeship commenced on 18 May 2015, the Tribunal does not accept the total amount of $5,460 as meeting the requirements of benchmark B. According to the employment contract between the nominator and Mr Read-Fowler, which commenced on 14 May 2015, the gross weekly wages was $588. After deducting tax, the net weekly wages at the time was $532. Therefore, for the period of approximately 6 weeks from 18 May to 1 July 2015, the total paid in wages (net) to an apprentice was $3,192. On the information provided, the Tribunal accepts that the gross payroll for Year 1 of the sponsorship approval was around $198,615.43. Given this, the net wages paid to Mr Read-Fowler for the 6 week period exceeds 1% of the payroll plus super for Year 1 of $1,986.15.
In respect of Year 2, the Tribunal accepts that the gross payroll for Year 2 of the sponsorship approval was $192,271.56. The summary of payroll for July to September 2015 for Mr Read-Fowler indicates that $9,576 of wages (net) was paid to Mr Read-Fowler. It does not appear that a summary was provided for October and November 2015. However, the calculation for the 3 months to September 2015 is more than 1% of the payroll plus super for Year 2 of the sponsorship approval of $1,912.42.
The payroll for Year 3 (estimated based on the financial statement for FYE 30 June 2017) was $194,866.25. The Tribunal has explained above why it does not accept that the wages paid to Mr Read-Fowler during Year 3 can meet the requirements of benchmark B.
This means that the requirements of Benchmark B have not been met, as it was not fulfilled in Year 3 of the sponsorship approval.
It was submitted that if the Tribunal did not find that the training benchmark requirements have been met, that it consider it reasonable to disregard the requirement. The Tribunal has proceeded to consider whether it is reasonable to disregard the requirement. It notes firstly that the total amount in wages paid to Mr Read-Fowler for the period 18 May 2015 to November 2015 of at least $12,768 exceeds the total of 1% of payroll and super for the entire period of the sponsorship approval ($5,847.23). The nominator has also provided evidence of training and workshops offered to university, college and high students over the years. While this does not meet the terms of IMMI 13/030, the Tribunal accepts that the nominator has provided learning opportunities for students interested in screen-printing.
Given this, and having regard to the continued commitment of the business to training and sharing knowledge and resources with other students as evidenced in the various letters provided, the Tribunal considers that it is appropriate to disregard the training commitments in this case. Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
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.
There is no evidence before the Tribunal that the nominator has any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator. Therefore, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the nominator to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to indicate that the nominator has not complied with workplace relations laws. Accordingly, the requirement in r.5.19(3)(h) is met.
Genuine need to employ nominee: r.5.19(3)(i)
Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
The Tribunal has considered the evidence given regarding the nominee’s contributions to the business based on his skills and expertise. The Tribunal has been advised that the nominee now occupies the position of ‘Ink-Room Manager’.
Having considered the employment contract, offer of continued employment, the website content and oral evidence at the hearing, the Tribunal accepts that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control. The requirement in r.5.19(3)(i) is therefore met.
Conclusion
Based on the findings above, the Tribunal is satisfied that the nominator 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.
Wan Shum
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.

[2019] AATA 6203

29 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal