S Zhang & Y Zhang (Migration)

[2020] AATA 3965

S Zhang & Y Zhang (Migration) [2020] AATA 3965 (11 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  S Zhang & Y Zhang

CASE NUMBER:  1724571

HOME AFFAIRS REFERENCE(S):          BCC2016/4243852

MEMBER:Nicola Findson

DATE:11 August 2020

PLACE OF DECISION:  Perth

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

Statement made on 11 August 2020 at 10:56am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – ICT Customer Support Officer – training commitments and obligations – r.2.87B repealed – transitional arrangement – obligation to be disregarded – decision under review set aside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 Immigration and Border Protection on 26 September 2017 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 15 December 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 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)(f) of the Regulations, because the delegate was not satisfied that the applicant had fulfilled the commitments made relating to meeting training requirements.

5. The applicant’s Director, Mr Sheng Zhang, appeared before the Tribunal on 7 August 2020 to give evidence and present arguments on behalf of the applicant.

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

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. During the review process, the applicant provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:

   ·ASIC Records in respect of the applicant company;

   ·Business activity statements (BAS) for the period July 2017 to June 2020;

   ·Profit and Loss Statement of the applicant company for the year ended 30 June 2020;

   ·Payroll records (including payslips, PAYG Payment Summaries and Notices of Assessments) from 2017 to 2019 in relation to the nominee;

   ·Updated Contract of Employment dated 8 August 2019 between the applicant and the nominee;

   ·Notice of approval as a Standard Business Sponsor dated 10 May 2018 (valid until 10 May 2023); and

   ·Evidence of expenditure incurred by the applicant during the period of its most recent sponsorship approval.

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

10. 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.

11. On the basis of information in the Department’s file, the Tribunal is satisfied that the application was made on the approved form, that the prescribed fee has been paid and that the relevant written certification relating to conduct that contravenes s.245AR(1) has been provided as part of the application form.

12. The Tribunal is also satisfied, on the basis of information in the department’s file, that the application for approval identifies Ms Hsiao-Wen Wang as the relevant 457 visa holder and identifies the occupation (ICT Customer Support Officer – 2313112) in relation to the position that is listed in ANZSCO and has the same four-digit occupation unit group as the occupation carried out by the relevant holder of the subclass 457 visa.

13. Given the above findings, the requirements in r.5.19(3)(a) are met

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

14. 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.

15. Departmental records confirm that the nominator is the standard business sponsor who last identified Ms Hsiao-Wen Wang in a nomination made under section 140GB of the Act.

16. The Tribunal has received current evidence that the business is actively and lawfully operating a business in Australia, including an ASIC information and financial documents.

17. The Tribunal has also had regard to Departmental records and is satisfied that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

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

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

19. 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.

20. In this case, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 visa on 16 October 2014 to work in the nominated occupation of ICT Customer Support Officer with the nominator. This nomination was lodged on 15 December 2016. At the hearing, Mr Zhang provided details of the tasks carried out by the nominee in the position, which the Tribunal is satisfied is consistent with ICT Customer Support Officer.

21. The Tribunal has had regard to payroll documents for the nominee, including payroll activity summaries and payslips for the years 2015 through to 2019, and tax assessment notices for the nominee for the 2015, 2016, 2017, 2018 and 2019 financial years. 

22. On the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the relevant position for at least 2 years in the 3 years before the nomination was made. The requirements of r.5.19(3)(c)(i) are therefore satisfied.

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. The Tribunal has before it a copy of the most recent signed contract of employment in respect of the nominee, dated 8 August 2019, which states that the applicant will provide full time employment for the nominee for a period of 2 years.  The contract states that the nominee’s salary will be $57,200 plus superannuation.

26. The Tribunal has had regard to the applicant’s financial capacity to employ the nominee and is satisfied, on the basis of the financial reports and its ability to maintain the nominee’s employment to date, that the applicant can provide employment to the nominee for a period of at least 2 years.

27. Given the above, the Tribunal is satisfied 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. It follows that the requirements in r.5.19(3)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

28. 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.

29. The applicant submitted to the Tribunal that the nominee’s salary is consistent with market rate information.  The Tribunal has considered information before it, including current information from payscale.com.au, which indicates that the average salary of an IT Support Technician in Western Australia is $56,116 per annum.  The Tribunal has also considered that the nominee’s terms and conditions of employment are in accordance with the Fair Work Act 2009.

30. On the basis of the information before it, the Tribunal is satisfied that the nominee’s base salary is within the appropriate range of that normally paid to an experienced ICT Customer Support Technician.

31. The Tribunal is satisfied that the terms and conditions applicable to the nominated 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.

32. Given the above, the requirement in r.5.19(3)(e) is met.

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

33. 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.

34. Since the Department made their decision refusing the nomination application, the Department has given further approval to the applicant as a standard business sponsor.  This approval was granted on 10 May 2018, for a period of five years.  As this is the most recent approval as a standard business sponsor, the Tribunal is required to consider whether the applicant has fulfilled any commitments made in relation to that period.

35. On 12 August 2018, Schedule 1 of the Migration Amendment (Skilling Australians Funds) Regulation 2018 commenced, which had the effect of repealing r.2.87B and replacing it with new requirements.  Rather than requiring an assessment of whether sponsors have met training benchmarks, the new scheme only requires employers to make a financial contribution on the lodgement of a new nomination application (post 12 August 2018), known as the SAF Levy.  Also included with these amendments was the addition of a transitional provision in schedule 13 of the Regulations, cl.7602(5), which states:

    A person is not required to comply with subregulation 2.87B(2) or (3) in relation to a period of 12 months ending on or after the commencement day.

36. The Explanatory Statement to the amendments provides further context to the application of this transitional provision, noting that as r.2.87B operated by imposing the training benchmark obligation for periods of 12 months starting on the anniversary of the sponsor’s approval, the obligation could overlap with the introduction of the nomination training contribution charge. However, to avoid the unfairness to employers caught in the overlap between having to comply with reg 2.87B and pay the SAF Levy  (in situations where they have lodged a new nomination post 12 August 2018), the transitional provision removes the old obligation in relation to the period of 12 months that includes 12 August 2018 so that it only applies to full periods of 12 months that end before 12 August 2018.

37. In this case, given the most recent sponsorship was approved on 10 May 2018, the first period of 12 months ended post 11 August 2018.  Considering this, the impact of the transitional arrangement is that there is no obligation on the applicant to comply with the requirement set out in repealed r.2.87B.  Further, the Tribunal notes that there would not appear to be a requirement for the applicant to have to pay the SAF Levy, as introduced by the amendments that commenced on 12 August 2018.

38. In the circumstances of this case, the Tribunal therefore finds that the training requirement in r.5.19(3)(f) should be disregarded.

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

39. 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. 

40. The Tribunal is not aware of any adverse information known to Immigration about the nominator or person associated with the nominator.

41. 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 evidence before the Tribunal to indicate that the applicant has not complied with workplace relation laws.

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

    Conclusion

45. 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

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

    Nicola Findson
    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.