RADIO SYSTEMS AUSTRALIA PTY LTD (Migration)

[2020] AATA 3999

RADIO SYSTEMS AUSTRALIA PTY LTD (Migration) [2020] AATA 3999 (11 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  RADIO SYSTEMS AUSTRALIA PTY LTD

CASE NUMBER:  1805742

HOME AFFAIRS REFERENCE(S):          BCC2017/3848814

MEMBER:De-Anne Kelly

DATE:11 September 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 11 September 2020 at 2:44pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Management Accountant – genuine need to employ nominee – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), 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 Home Affairs on 16 February 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 19 October 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)(i) of the Regulations because the applicant did not demonstrate a genuine need to employ the person, as a paid employee, to work in the position under the nominators direct control.

5. The applicant appeared before the Tribunal on 13 August 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.

6. The applicant was represented in relation to the review by its registered migration agent, Mrs Maree Elliott MARN: 9902416 of Brisbane, Qld 4000.

7. 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

8. 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.

9. Radio Systems Australia Pty Ltd commenced trading in 2000 and is located at Bundall, Gold Coast Qld 4217 and has 13 Australian employees and one foreign skilled employee (the nominee).

10. The nominator, Radio Systems Australia Pty Ltd on 19 October 2017 lodged an Employer nomination – visa subclass 186 application in the Temporary Residence Transitional (TRT) stream for the position of Management Accountant (ANZSCO 221112) on a salary of $69,000 in favour of Mariana Goncalves Camacho.

11. The applicant company is owned by US company Radio Systems Corporation, 2012 which acquired Pet Products some 20 years ago. The company is located at the Gold Coast where it’s financial operations and administration is based. The company started a product called invisible fencing hence the name Radio Systems which would not suggest the real activity of the company which is selling pet products. The company was represented by one of the directors Mr Travis Hull

    The application must be compliant: r.5.19(3)(a)

12. 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.

13. Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 19 October 2017 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.

14. The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.

15. The application identified a person who holds a subclass 457 visa, namely Ms Mariana Goncalves Camacho which was granted on the basis of satisfying cl.457.223(4) of the Regulations. The application identified an occupation, namely Management Accountant (ANZSCO 221112) that is listed in ANZSCO and has the same 4-digit code as the occupation carried out by the Subclass 457 visa holder.

16. Given the above findings, the requirement in r.5.19(3)(a) is met.

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

17. 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.

18. Radio Systems Australia Pty Ltd was the standard business sponsor who identified Ms Mariana Goncalves Camacho as the holder of a Subclass 457 visa in a nomination made under s.140GB of the Act. The sponsor is actively and lawfully operating a business in Australia as evidenced by tax returns for 2018 and 2019 as well Profit and Loss statement for those financial years. BAS statements from Q4 2018 to Q1 2020 were also provided as evidence of active and lawful operation.

19. The most recent business sponsorship was not granted on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

20. Given the above, the requirement in r.5.19(3)(b) is met.

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

21. 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.

22. PAYG payment summaries were provided from 1 July 2015  to 30 June 2017 showing the nominee in full employment during that period and an employment contract dated 1 May 2015 signed by Mr Travis Hull as director of Radio Systems Australia Pty Ltd and the nominee showing she was employed for two of the three years before the nomination was lodged on 19 October 2017. At the hearing, Mr Hull explained that the nominee was still employed by the company and was a valued employee.

23. Given the above findings, the requirement in r.5.19(3)(c) is met.

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

24. 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.

25. During the hearing, Mr Hull advised that sales had grown over the Covid-19 pandemic as pet products were largely unaffected by the crisis. The tax returns for 2018 and 2019 show a high turnover and a profitable enterprise.

Tax return	2019	2018
Income	11,222,410	11,252,947
Super	115,615	112,386
Wages	1,331,679	1,283,036
Total expenses	10,316,497	10,654,819
Profit	905,913	609,006

1. BAS show the same strong sales and wages growth as below;

BAS	Sales	Wages
Q2 2018	2,510,810	97,038
Q3 2018	3,305,736	106,473
Q4 2018	2,818,565	93,250
Q1 2019	2,698,758	114,001
Q2 2019	2,727,264	104,519
11,550,323	418,243
Q3 2019	3,241,466	105,300
Q4 2019	2,608,226	101,785
Q1 2020	2,759,904	164,868

1. The employment contract of 1 May 2015 does not expressly exclude the possibility of extending the period of employment and is ‘open ended’. In the hearing the employer stated that they value the nominee and hope she will remain working for them for a long period of time. Likewise, the nominee expressed her satisfaction with the company and her wish to remain working there.

2. 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)

3. 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.

4. Hays salary guide provided with the application shows Management accountants in Brisbane Queensland are paid $60,000 to $75,000 so a wage of $69,000 is in the mid-range. The Tribunal accepts that the terms and conditions of employment applicable to the nominated position are no less favourable than those that would be provided to an Australian citizen or permanent resident working as a financial accountant in Bundall, Queensland.

5. Accordingly, the requirement in r.5.19(3)(e) is met.

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

6. 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.

7. The Tribunal under s359AA of the Migration Act that the applicant appeared not to have met their training requirements under Division 2.19, r.2.87B and IMMI17/074. The registered migration agent advised that they would provide a response within 14 days.

8. The applicant submitted a notification of approval as a standard business sponsor granted on 27 August 2020 and valid to 27 August 2025. The Migration (Skilling Australians Fund) Charges Regulations 2018 repealed training requirements and implemented a fee that is paid by nominators at the time of application. Since the new sponsorship period commences on 27 August 2020 and after the implementation of the above act, the sponsor is exempt from complying with the training obligations under Division 2.19 as follows;

   (1) This regulation applies to a person who was lawfully operating a business in Australia
   at the time of:
   (a) the person’s approval as a standard business sponsor (Emphasis added).

9. Accordingly, the requirement in r.5.19(3)(f) is met.

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

10. 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. 

11. A search of the ASIC website finds the director is not on the banned or disqualified list and there is no other adverse information known to Immigration or to the Tribunal. This was also confirmed at the hearing.

12. Accordingly, the requirement in r.5.19(3)(g) is met.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

13. 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.

14. The director advised that they had one complaint from an employee under the Fair Work Act this year and one in 2016. The cases were ‘thrown out’ and the Tribunal can find no reference to adverse findings against the company on the website of the Fair Work Ombudsman and finds that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of the state of Queensland relating to workplace relations.

15. Accordingly, the requirement in r.5.19(3)(h) is met.

    Genuine need to employ nominee: r.5.19(3)(i)

16. 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.

17. The director advised that the nominee is important to the business and she has continued to be employed in the role since May 2015 or more than five years. The company has increasing turnover and is successfully operating with 13 Australian employees who depend to some extent on the nominee as part of the management team. The Tribunal finds that there is a genuine need for the nominator Radio Systems Australia Pty Ltd to employ the person, as a paid employee, to work as a financial accountant under the nominators first control.

18. Accordingly, the requirement in r.5.19(3)(i) is met.

19. 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

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

    De-Anne Kelly
    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

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and

    (i)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.