SA INDUSTRIAL SERVICES NSW PTY LTD ATF ELREP SERVICES TRUST (Migration)

SA INDUSTRIAL SERVICES NSW PTY LTD ATF ELREP SERVICES TRUST (Migration) [2020] AATA 5820 (16 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SA INDUSTRIAL SERVICES NSW PTY LTD ATF ELREP SERVICES TRUST
CASE NUMBER:  1730144
HOME AFFAIRS REFERENCE(S):          BCC2017/2241282
MEMBER:Mr S Norman
DATE:16 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 16 December 2020 at 12:38pm
CATCHWORDS
MIGRATION – nomination of a position – Temporary Residents Transition Nomination stream – occupation of Customer Service Manager – standing of the new business owner to apply for review – employed in the position for at least 2 years previously – evidence of full-time work preceding the nomination application – payslips do not reflect full-time employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 338
Migration Regulations 1994, Schedule 2 cl 457.223; rr 2.72, 4.02, 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 and Border Protection on 17 November 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). The Department delegate’s decision was lodged with the Tribunal.
The applicant applied for approval on 25 June 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(c)(i) or r.5.19(3)(c)(ii) of the Regulations.
The applicant appeared before the Tribunal on 8 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the company’s former owner (Mr Haddadi); and the associated visa applicant/nominee (Mr Manji SINGH).
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. After then discussing the claims at hearing, the Tribunal is satisfied the applicant was given a meaningful opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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 applicant/nominator (SA Industrial Services NSW Pty Ltd ATF ELREP Services Trust), lodged the nomination application on 25 June 2017; the visa applicant/nominee was Manjit SINGH; the nominated occupation was for a Customer Service Manager (ANZSCO: 149212); the base rate of pay per annum was $74,131[1] - with guaranteed annual earnings of $53,818 the base salary was determined by a minimum guaranteed 24 hours per week).
[1] Nomination application – p.4.
Finally, the applicant lodged a range of evidence and submissions with the Department and the Tribunal. Only that which is considered material to this decision has been expressly referred to.
Standing
Though not set out in detail herein, the nominator (SA Industrial Services NSW Pty Ltd ATF ELREP Services Trust - more recently known as NOORCO P/L) was sold (on 1 May 2019) after having lodged the application for merits review with the Tribunal. However, as the new owner had (at least initially) established a new company (and new legal identity) to run the business, the issue of which nominator had standing to appear before the Tribunal was discussed at hearing; and post hearing submissions were lodged.
After considering the post hearing submissions, the Tribunal notes that an application for review of a reviewable decision under s.338(9) and r.4.02(4)(e) may only be made by ‘the employer to whose nomination of a position the decision relates to’: r.4.02(5)(d) - as applicable at the time the review application was made for this matter (14 December 2018). When the nomination application was lodged at the Department (28 February 2018), the legal entity with the company identifier ACN 097 191 163 (now called ‘Noorco P/L’) was listed as the legal entity applying for the approval of nomination. Though the evidence may suggest that Noorco P/L’s role was principally that of a corporate trustee, the subsequent business sale and the purchase of Noorco P/L by the new owner of the nominating company, along with its continued existence as a legal entity, and with the ‘ongoing’ employment of the nominees, have satisfied the Tribunal it should accept that Noorco P/L meets r.4.02(5)(d).
Accordingly, the Tribunal accepts that Noorco P/L, did and continues to have standing to appear before the Tribunal at hearing.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
·Regulation 5.19(3)(c)(i) - 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
·Regulation 5.19(3)(c)(ii) - 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.
The evidence before the Tribunal does not indicate the visa applicant held a Subclass 457 visa on the basis they were 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) of the Regulations. Therefore, the applicant does not satisfy r.5.19(3)(c)(ii).
Regarding Regulation 5.19(3)(c)(i) – in their decision, the delegate noted the visa applicant was the holder of a Subclass 457 Temporary Work (Skill) Visa at time of application. Further, by letter of 24 June 2017, the applicant ‘declared’ that the visa applicant had “worked full-time under the 457 Visa for more than two years” (continuous employment since 17 September 2012[2]).
[2] PDF – p.80 (‘PDF’ refers to the merged Department file on the Tribunal CASEMATE database).
The delegate said the base salary was determined by minimum guarantee of 24 hours per week totalling $40,639 annually. The equivalent salary at full load of 40 hours per week is $40,639/24x40 = $67,731 annually. There is also the annual quality bonus of $6,400 which is paid quarterly.[3]
[3] Nomination application – p.4.
The delegate went on to state that the nominee’s employment contract (dated 22 June 2017), claimed the nominee’s employment commenced on 17 September 2012. The contract stated the position, at least as of 1 March 2017, was classified as Queensland Regional Operations Supervisor in which the nominee would be responsible for the maintenance of commercial kitchen cooking exhaust systems for the applicant’s customers in regional Queensland and northern NSW.
However, though the contract being titled “Fulltime Employment letter…” the contents of the contract references the ‘usual workload as 24 hours per week’. The contract then outlined the equivalent salary that is payable at full load of 40 hours per week with quality bonus payable and meals allowance.
In the nominee’s PAYG payment summary for the full 2015/2016 financial year, it is recorded that the nominee’s gross payment was $39,420[4] with $4,047 in taxes withheld. An additional $30 in phone allowance is also recorded on the payment summary. The following information was then extracted from the nominee’s weekly payslips:[5]
[4] PDF – p.86.
[5] PDF – from page 88.
The delegate then noted that aside from the most recent pay period with $600 being listed as a bonus, all other payments were made according to the payslips with the nominee’s base salary.
On 4 November 2017, the applicant’s additional submissions corrected errors that had been made. Amongst other things, it was said that one error was the reference to a 24-hour working week. It was said the 24-hour week, was a reference to the time spent on customer premises by another employee of the applicant, and this had been incorrectly copied to the nominee’s application. The applicant repeated that the position being offered to the nominee was full-time.
Next, the applicant also said the relevant occupation was incorrectly recorded in the nomination (as an Airconditioning and Refrigeration Mechanic), and that the nominated occupation should be that of a Customer Service Manager, which was consistent with the nominee’s visa application. After discussing same, the Tribunal accepts the occupation was incorrectly recorded in the nomination and should be that of Customer Service Manager, which is consistent with the nominee’s visa application and Subclass 457 sponsorship.
The applicant went on to say the visa applicant had been ‘instrumental in their success in winning the Hungary Jacks contract and that they conduct regular Customer Service Quality review meetings which all senior staff attend’. The applicant also provided examples of work undertaken by the nominee which be believed correlated with those tasks of a ‘Customer Service Manager’ as provided for in ANZSCO. Amongst other things, it was also said the particular experience gained by the visa applicant (particularly with respect to Hungary Jacks) made them critical to the applicant’s operation. Further evidence of the visa applicant’s value to the business was set out in the applicant’s letter dated 24 July 2020.
However, the delegate said they were not satisfied the visa applicant had been employed full-time in the nominated position for a total period of at least two years in the last three years immediately prior to the nomination application being lodged (being in the three years prior to 25 June 2017).
The reasons for this included that the applicant operated the business with nine employees, and given the limited size of the business, the delegate said it was not unreasonable to expect the applicant would be able to distinguish the positions held by the nominee and another employee, especially when the nominated positions were significantly different. The delegate then referred to the employment contract relating to the visa applicant and the employment contract related to another employee (being the aforementioned other employee whose details were incorrectly copied), and noted that one was to be employed as the Queensland Regional Operations Supervisor and the other was to be employed as the Victoria Regional Operations Supervisor. The delegate assumed this demonstrated a conscious decision made by the applicant to appoint the nominee as an Air-conditioning and Refrigeration Mechanic.
Perhaps more importantly, the nominees PAYG payment summaries and payslips indicated the applicant had not been employed full-time. The delegate continued that the payslips indicated weekly gross pay as $705 (from 2017) which equated to an annual figure of $36,660, and the delegate believed this amount indicated the nominee had not been working full-time, or had been significantly underpaid. The delegate then found the applicant had not satisfied r.5.19(3)(c)(ii); and then went on to find the applicant had also not satisfied r.5.19(3)(c)(i).
In response to the Tribunal s.359(2) letter, the applicant had lodged:
·PAYG for Manjit SINGH (the visa applicant) for the year ending 30 June 2018 – taxable income $71,601 / gross payments for the same year will listed a $65,396
·PAYG for Manjit SINGH for the year ending 30 June 2019 – taxable income was $99,439
The Tribunal notes this was one of four nomination applications lodged by the applicant. That said, as the Tribunal hearing on 8 September 2020 principally focussed on which applicant had standing, the Tribunal did not discuss at that time, other material issues relating to the case. As a consequence, the Tribunal invited post hearings submissions, with respect to whether the applicant met r.5.19(3)(c). The Tribunal requested written submissions to be lodged with the Tribunal by 25 November 2020.
On 25 November 2020, the applicant lodged:
·     Applicant letter dated 25 November 2020 – that letter inter alia:
·     Noted that it was critical the visas be granted
·     Set out the applicant’s understanding of information requested to be lodged post hearing, including that ‘all key stated leaders were working full-time (meaning average minimum 38horus per week’ – at least at the time the sale of the business was being arranged
·     Said that based on the applicant’s analysis, senior staff would be working at least 35 hours per week to complete the customer work - during 2014 to June 2017
·     Statutory declaration from Mohamed Haddadi (the former company owner) dated 20 November 2020, which stated inter alia:
·     The visa applicant was engaged full time in the business from 17 September 2012
·     An undated letter was also attached from BBS Business Buying Services – detailing some aspects of the sale of the business
·     Statutory declaration from Valerie Haddadi dated 20 November 2020 – which inter alia:
·     Said she was the Office Manager for the business from 1 July 2005 to 1 May 2019
·     Said that the visa applicant was paid as a full time employee between 17 September 2012 and 1 May 2019
·     Provided what appeared to be company documentation that the visa applicant was employed full time in the business (though the time frame was not clear)
·     Statutory declaration from Daljeet Karda dated 24 November 2020 – which stated inter alia:
·     The deponent was a work colleague of the visa applicant
·     The visa applicant worked full time between 2012 and July 2017
·     Statutory declaration from Manjit Sing dated 25 November 2020 which stated inter alia:
·     That they had worked full time with the applicant since 17 September 2012 – and full time in the nominated position from May 2013 to June 2017 – working a minimum average of 38 hours per week
·     Statutory declaration from Tejsaskumar Raval (the visa applicant) dated 22 November 2020 which sated inter alia they commenced working full time on 8 March 2012 – and from 1 July 2017 to 30 April 2019, they worked full time in Victoria (minimum average of 38 hours per week)
·     CRM Data Summary Table for 2015 / 2016 / 2017
The Tribunal notes that PAMS has provided that:
For the purposes of regulation 5.19(3)(c)(i)(B), under policy full-time means not less than 35 hours a week.
The post hearing statutory declarations state the visa applicant worked full time. However, and as noted above, r.5.19(3)(c)(i) provides that 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. The nomination application was lodged on 25 June 2017 – and the three years prior to that date are therefore the 2014/2015 & 2015/2016 & 2016/2017 financial years.
In the visa applicant/nominee’s PAYG payment summary for the 2015/2016 financial year, the nominee’s gross payments were $39,420[6] ($4,047 in taxes withheld). An additional $30 in phone allowance is also recorded on the payment summary. However, the Tribunal is not satisfied this constitutes full time employment for the financial year ending 30 June 2016.
[6] PDF – p.87.
Next, the Tribunal accepts the lodged payslips are of serious concern given the weekly gross pay is recorded as (approximately) $705.00 which equates to an annual figure of $36,660 (for the financial year ending 30 June 2017). This amount does not indicate the visa applicant was employed full time. Further, even if the visa applicant was employed full time, this would suggest they were being significantly underpaid. Therefore, the Tribunal is not satisfied this constitutes full time employment for the financial year ending 30 June 2017.
Notwithstanding the repeated claims to the contrary, the nominee’s PAYG payment summaries and payslips do not indicate the visa applicant was employed full time in at least two of the three years prior to the nomination application being lodged (being two of the three years prior to 25 June 2017).
In the circumstances, and based on these findings, the Tribunal is not satisfied the visa applicant was employed in the nominated occupation for at least 2 years in the 3 years immediately before the nomination application. Therefore, the applicant did not satisfy r.5.19(3)(c)(i).
Given the above findings, the requirement in r.5.19(3)(c), and r.5.19(3) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Mr S Norman
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.

[2020] AATA 5820

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Standing

Judicial Review

Procedural Fairness