Renesav Pty Ltd (Migration)

[2018] AATA 1407

Renesav Pty Ltd (Migration) [2018] AATA 1407 (11 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Renesav Pty Ltd

CASE NUMBER:  1700309

DIBP REFERENCE(S):  BCC2016/1066007

MEMBER:Hugh Sanderson

DATE:11 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 11 April 2018 at 1:34pm

CATCHWORDS
Migration – Employer Nomination – Nominated occupation – Transport company manager – Full-time employment for two years – Current and historical company extracts – Business Activity Statements – PAYG payment summaries – Employment contract – Training expenses

LEGISLATION
Migration Regulations 1994, rr 1.13A, 1.13B, 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 20 December 2016 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 11 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 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)(d)(i) of the Regulations because the delegate was not satisfied that the nominee would be employed on a full-time basis in the nominated position for at least two years.

   Background

5. The applicant is a road freight transport company. The applicant applied to be approved as the nominator of Mr Sheladiya for the position of a transport company manager. At the time of the application, Mr Sheladiya had been offered the position on a base salary $54,000. Mr Sheladiya had been working for the applicant as the holder of a Subclass 457 visa since August 2013.

6. The delegate who considered the application noted the following issues:

   ·The net before tax profit of the applicant was around $15,000 or less from 2014 to 2016;

   ·The applicant’s bank statements showing salary payments indicated the employees were paid on an irregular basis; and

   ·There were gaps in the salary payments for Mr Sheladiya.

7. Taking these matters into account, the delegate was not satisfied that the applicant had the financial capacity to provide permanent full-time employment to Mr Sheladiya for at least two years. Accordingly, the delegate found that the applicant did not satisfy r.5.19(3)(d)(i) and refused the application.

   Information to the Tribunal

8. The applicant provided extensive further material to the Tribunal in support of the application. This included the following:

   ·Financial statements for the years ending June 2016 and June 2017;

   ·Company tax returns for the year ending June 2016 and June 2017;

   ·Bank statements of the applicant;

   ·Contract between the applicant and Neverfail (Coca-Cola Amatil);

   ·Organisational chart of the applicant;

   ·Employment contract and letter of salary increase for Mr Sheladiya;

   ·PAYG summaries for Mr Sheladiya; and

   ·Information as to training over the period of the applicant’s Standard Business Sponsorship approval.

9. On the basis of the information provided by the applicant, the Tribunal has proceeded to a decision without the need for a hearing.

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

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 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)

13. 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.

14. On the basis of the information in the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was provided in the application form.

15. The occupation identified in the application is transport company manager (ANZSCO 149413). The Tribunal is satisfied based on the employment documents for Mr Sheladiya that the occupation identified is the same occupation as that carried out by the nominee as the holder of the Subclass 457 visa. The Tribunal is satisfied that this occupation carries the same four digit code (1494) as the occupation carried out by the nominee whilst he held the Subclass 457 visa.

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. Departmental records confirm that the applicant was the standard business sponsor who last identified Mr Sheladiya in a nomination made under s.140GB of the Act. The applicant was not granted the most recent business sponsorship on the basis of meeting r.1.20DA, r.2.59(h) or r.2.68(i).

19. The applicant has provided various documents to confirm that it is actively and lawfully operating a business in Australia. This includes a current and historical company extract, its most recent company tax return, Business Activity Statements up to 31 December 2017 and contracts with current customers. The Tribunal is satisfied that the documents provided confirm is that it is actively and lawfully operating a business in Australia.

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. Mr Sheladiya was granted a Subclass 457 visa on 23 August 2013. Since that time, the applicant has employed him on a full-time basis in Australia. The applicant has provided the PAYG payment summaries for Mr Sheladiya which supports this finding. Mr Sheladiya has also provided the ATO notice of assessments for the year ending 30 June 2014 to 30 June 2016.

23. On the totality of the evidence, the Tribunal is satisfied that the nominee has been employed full time in the position in Australia as the holder of a Subclass 457 visa for at least two years in the three year period immediately before the current nomination application was made.

24. 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)

25. 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.

26. The Tribunal has had regard to the contract of employment for Mr Sheladiya dated 12 February 2016. The contract is stated to start on the date of the grant of Mr Sheladiya’s permanent visa. Since then, the applicant has had an increase in his stated salary from $54,000 to $58,000 per annum.

27. The delegate refused the nomination application due to concerns as to whether the applicant have the financial capacity to provide permanent full-time employment to Mr Sheladiya for at least two years. The applicant has now provided further information to the Tribunal as to its current activities and financial viability.

28. Although the net profit of the business has not risen substantially since 2014 the financial statements provided to the Department and to the Tribunal indicate that the business is growing and remains profitable. The gross receipts for the business have increased by more than 100% from 2015 to 2017. The applicant has recently signed a contract with Neverfail (Coca-Cola Amatil) where it will be providing transport services for that company for a five-year period. As a result of that contract the applicant has employed two further drivers which is reflected in the salaries paid disclosed in the financial statement of the applicant. The most recent Business Activity Statement supports a finding that the business is operating at a profit and is financially viable.

29. On the information before it, the Tribunal is satisfied that the applicant will employ Mr Sheladiya on a full-time basis for at least two years on the terms that do not exclude the possibility of extending the period of employment.

30. 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)

31. 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.

32. The employment contract indicates the nominee’s base salary is $54,000. Since that contract was signed, the applicant has increased the salary of Mr Sheladiya two $58,000. There is no Australian performing equivalent work at the same location. The Tribunal has taken into account the information provided by the applicant, including printouts from the Transport and Logistics Industry Skills Council which indicates the median salary for the position is $54,700 and from Pay Scale Human Capital which indicates the average salary for a transportation manager is $68,000. The salary range as set out in Pay Scale is $52,578-$114,909.

33. The Tribunal is satisfied on the basis of this information that the base salary of Mr Sheladiya is within the appropriate range of that normally paid to an experienced transport company manager. The Tribunal is satisfied that the terms and conditions on which Mr Sheladiya will be employed are no less favourable than those that would be provided to an Australian citizen or permanent resident performing the equivalent work in the same workplace at the same location.

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

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

35. 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.

36. The applicant’s accountant has provided a breakdown of the gross payroll payments for each year ending 30 August. The amount stated is $112,995 for 2014, $165,151 2015 and $206,655 for 2016. These figures are consistent with the disclosed salary expenses in the financial statements for the years ending 30 June. It is claimed that the amount spent on training during those years was $1,170 ending August 2014, $1,727.27 ending August 2015, and $2,670 ending August 2016. This represents more than 1% of the businesses payroll for those years.

37. Wyndham Institute and Australian OH&S Risk Management Services provided the training. The applicant has provided details of the staff who attended the training courses and details of their resident status. The members of staff who attended the training were Australian citizens or held the right to reside permanently in Australia.

38. Taking into account the information provided, the Tribunal is satisfied that the applicant fulfilled the commitments made relating to meeting the training requirements during the relevant period. The applicant has kept the required records showing they have complied with their sponsorship obligations relating to the training requirements.

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

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

40. 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.

41. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person. Accordingly, the requirement in r.5.19(3)(g) is met.

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

42. 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.

43. There is no information before the Tribunal to suggest the applicant does not have a satisfactory record of compliance with workplace relations laws. Accordingly, the requirement in r.5.19(3)(h) is met.

    Conclusion

44. 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

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

    Hugh Sanderson
    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.