SABA PACIFIC PTY LTD (Migration)

[2021] AATA 1679

SABA PACIFIC PTY LTD (Migration) [2021] AATA 1679 (6 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SABA PACIFIC PTY LTD

CASE NUMBER:  1820176

HOME AFFAIRS REFERENCE(S):          BCC2017/4162567

MEMBER:Antonio Dronjic

DATE:6 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 06 April 2021 at 10:04am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Sales and Marketing Manager – financial capacity to maintain term of employment – employment agreement – ongoing permanent contract – financial records provided – 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 23 June 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 8 November 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. The nominating business is SABA Pacific Pty Ltd, and the nominated occupation is Sales and Marketing Manager (ANZSCO 131112).

4. The delegate refused the application on the basis the nominator did not satisfy r.5.19(3)(d)(i) because, based on the evidence before him or her, the delegate was not satisfied that the nominator had the financial capacity to employ the nominee on a full-time basis in the position for at least 2 years.

5. The applicant applied to the Tribunal on 11 July 2018 and with the application submitted a copy of the primary decision record.

6. On 29 January 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of r.5.19(3).

7. On 25 February 2021, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is contained in the submissions prepared by the applicant’s representative.

8. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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)

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 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.

11. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

12. Therefore, it finds that r.5.19(3)(a) is met.

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

13. 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.

14. The Department’s records indicate that the applicant was approved as a standard business sponsor between 29 November 2013 and 29 November 2016. The Tribunal is satisfied that the company was the standard business sponsor which last identified the nominee, Mr Johnathan LeMerise, and nominated him for a Subclass 457 visa. The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.

15. In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from the financial documents provided and the evidence of its current ABN and ASIC registrations that the applicant is actively and lawfully operating a business in Australia.

16. Given the above, the Tribunal finds that the requirement in r.5.19(3)(b) is met.

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

17. 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.

18. The Tribunal has reviewed the occupations specified in the relevant instrument for the purposes of the second dot point above and is satisfied that the nominated occupation of a Sales and Marketing Manager is not included in it. Accordingly, the applicant must meet the requirements of the first dot point above.

19. The Tribunal is satisfied on the evidence before it that:

    ·     The nomination was made on 8 November 2017;

    ·     The relevant 3-year period is therefore 8 November 2014 to 8 November 2017;

    ·     The nominee was granted a Subclass 457 visa on 29 November 2013, which was valid until 29 November 2017; and

    ·     The nominee commenced his full-time employment at the nominating business on 17 December 2013 and continued to work there until the present time; and

    ·     He had therefore worked for the applicant in the nominated position as the holder of a Subclass 457 visa for more than 2 years in the 3-year period immediately prior to the nomination application being lodged.

20. Accordingly, given the above, and PAYG summary statements for the nominee provided to the Department and the Tribunal, the Tribunal is satisfied that the requirement in r.5.19(3)(c) is met.

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

21. 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.

22. The applicant provided the Tribunal with a copy of an employment agreement between the applicant and the nominee dated 28 September 2017, indicating an annual base salary of $69,000 plus superannuation. The Tribunal accepts that the employment contract is indicative of an ongoing permanent contract based on holding the required valid immigration visa.

23. The Tribunal is satisfied, based on the offer of employment referred to, that the terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment further (with, notably, the nominee’s employment still now continuing with the applicant more than 3 years after the nomination application).

24. The Tribunal considered whether the business has a financial capacity to provide full‑time employment to the nominee for a minimum of 2 years.  

25. According to financial records provided by the applicant, in the financial year ending 31 December 2020, the applicant’s turnover was in excess of $2.323 million. The profit before income tax in that financial year was $267,522.

26. According to the applicant’s BAS for the period from October to December 2020, the applicant’s sales for this quarter were $122,952.

27. Based on the documentary evidence provided on behalf of the applicant, including the applicant’s contract of employment, PAYG summary statements to date and the applicant’s financial information, the Tribunal is satisfied that the nominee will continue to be employed on a full-time basis for at least 2 years, and that the terms and conditions of his employment do not expressly exclude the possibility of extending his period of employment.

28. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(d) is met.

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

29. 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.

30. The applicant submitted that no other employee performs equivalent work at an equivalent location. The terms and conditions attached to the role are determined based on the Commercial Sales Award 2020. Based on the evidence before it, the Tribunal finds that the nominee is paid a base salary that exceeds the minimum salary required for all of the classifications set out in this award.

31. Having regard to the market salary research conducted by the nominator, the Tribunal is satisfied that the conditions 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. Accordingly, 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. Based on the evidence before it, the Tribunal is satisfied that the nominee was granted a Subclass 457 visa on 29 November 2013, which was valid until 29 November 2017. The Tribunal further finds that the most recent sponsorship approval for the nominator was between 29 November 2013 and 29 November 2016.

35. The training requirements applicable for an established business with approval as a standard business sponsor in that period were set out in written instrument IMMI 13/030, as follows:

    A) Recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or

    B) Recent expenditure by the business to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

36. According to the Department’s Procedures Advice Manual (PAM3), a standard business sponsorship (SBS) holder is only required to meet the training benchmark for the SBS years in which they employed an active Subclass 457 visa holder. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1]

    [1]     See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

37. Based on the evidence before it, the Tribunal finds that the nominee commenced his full‑time employment at the nominating business on 17 December 2013. His Subclass 457 visa ceased on 29 November 2017. Accordingly, the applicant is required to meet the training benchmark from 17 December 2013 to 29 November 2016.

38. From the material provided to the Department and the Tribunal, the Tribunal accepts that the applicant seeks to meet Training Benchmark A. The Tribunal has assessed the most recent information provided on this basis. The applicant made the following payment related to training expenditure:

    ·     A copy receipt for $1,046 issued by the Sydney Institute TAFE on 20 September 2013 as evidence of the nominator’s contribution to training fund;

    ·     A copy receipt for $1,543 issued by the Sydney Institute TAFE on 23 January 2015 as evidence of the nominator’s contribution to training fund;

    ·     A copy receipt for $2,782 issued by the Sydney Institute TAFE on 2 October 2015 as evidence of the nominator’s contribution to training fund;

    ·     A copy receipt for $3,014 issued by the Sydney Institute TAFE on 21 October 2016 as evidence of the nominator’s contribution to training fund; and

    ·     A copy receipt for $2,982 issued by the Sydney Institute TAFE on 4 October 2017 as evidence of the nominator’s contribution to training fund.

39. Based on the evidence before it, including the nominator’s financial statements, the Tribunal is satisfied that the training expenditure for the relevant period was in excess of 2% of the total payroll as required by the instrument. The Tribunal is satisfied that the above payments are acceptable for the purposes of meeting Training Benchmark A.

40. Based on the evidence before it, the Tribunal is satisfied that the applicant complied with the applicable sponsorship obligations relating to the applicant’s training requirements during the period of the most recent sponsorship approval and has fulfilled commitments made related to meeting the training requirements.

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

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

42. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or a 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.

43. There is nothing before the Tribunal to show any adverse information known to the Department about the relevant business or anyone associated with it.

44. Accordingly, the Tribunal on the evidence before it is satisfied that the requirement in r.5.19(3)(g) is met.

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

45. 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.

46. There is nothing before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with laws relating to industrial relations.

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

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

48. 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.

49. Based on the evidence before it, including the position description for Sales and Marketing Manager, the Tribunal is satisfied 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.

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

51. 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

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

    Antonio Dronjic
    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.