Satyam Facility Services Pty Ltd (Migration)

[2021] AATA 2415

Satyam Facility Services Pty Ltd (Migration) [2021] AATA 2415 (14 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Satyam Facility Services Pty Ltd

CASE NUMBER:  1905323

HOME AFFAIRS REFERENCE(S):          BCC2017/958131

MEMBER:George Hallwood

DATE:14 May 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 14 May 2021 at 10:44am

CATCHWORDS
MIGRATION–nomination – Direct Entry nomination stream – genuine need for the nominator to employ a paid employee – no less favourable terms and condition of employment –applicant lawfully operating a business in Australia–decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, 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 13 February 2019 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 10 March 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 Direct Entry nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations because the delegate was not satisfied the applicant had identified a need for the nominator to employ a paid employee to work in the position under the nominator's direct control as required by r.5.19(4)(a)(ii).

5. Mr Hemchud Buldawo appeared before the Tribunal on behalf of Satyam Facility Services Pty Ltd (the applicant) by video on 13 May 2021 to give evidence and present arguments. As this was a combined hearing in relation to the application for approval of the nomination of a position, and the related subclass 187 application, the Tribunal also received oral evidence from Ms Neeta Basoodelsing file number 1908284 (the nominee), who is the subject of this application for approval of a nomination.

6. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, 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. No concerns were raised by the applicant either to the hearing being combined or the hearing being held by video and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.  

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

8. 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

9. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   The application is compliant: r.5.19(4)(a)

10. Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.

11. I have had regard to the material provided and oral evidence and I am satisfied that the application was compliant with the process set out in r.5.19(4)(a) as the application:

    ·was made on the approved form and was accompanied by the fee prescribed in r.5.37;

    ·the completed form includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1); and

    ·the completed form identifies a need for the applicant to employ a paid employee to work in the position under the applicant’s direct control and the Tribunal is satisfied that this meets the requirement of r.5.19(4)(a)(ii).

12. Accordingly, the requirement in r.5.19(4)(a) is met.

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

13. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.

14. The Tribunal had regard to written and oral submissions including:

    ·Financial statements, business activity statements, contractor agreements and ASIC extracts demonstrating the business is active and directly operating a business in Australia;

    ·A written submission dated 18 February 2021 stating that the applicant had not been subject to any investigations about contravention of the law;

    ·An oral statement from Mr Buldawo confirming that the business is actively, lawfully and directly operating a business in Australia.

15. The Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia.

16. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

17. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator. 

18. Documentary evidence provided to the Tribunal including the business organisation chart, contract of employment, and the oral evidence of Mr Buldawo confirmed to the Tribunal’s satisfaction:

    ·the applicant is not involved in labour hire activities; and

    ·the nominated position is employed wholly within the nominator’s business and is not for hire to unrelated businesses.

19. Accordingly, the requirement in r.5.19(9)(b) is met.

    Term of employment of the visa holder: r.5.19(4)(d)

20. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

21. An employment contract between Satyam Facility Services Pty Ltd and Ms Basoodelsing dated 8 March 2017 provides for a contract of 24 months from the date of Visa approval and states: “We have agreed that prior to the end of this contract, both parties will meet to discuss the terms and renewal of this agreement”.

22. At the hearing Mr Buldawo stated that he definitely intended to extend Ms Basoodelsing’s contract beyond two years.

23. The Tribunal is satisfied that the nominee is to be employed for at least two years and that the terms and conditions of that employment do not expressly exclude the possibility of an extension.

24. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(4)(e)

25. Regulation 5.19(4)(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.

26. At the time of application the applicant provided information from the Payscale web site demonstrating that an annual salary of $60,000 a year is at the 58^th percentile of Contract Administrators on Perth Western Australia. An advertisement dated 24 February 2017 for a Junior Contract Administrator in Perth Western Australia through Marble Recruitment offered a salary of $55,000 to $80,000 plus superannuation dependent on experience.

27. The applicant’s contract of employment with Ms Basoodelsing provides a salary of $60,000 plus 9.5% superannuation and a standard set of conditions.

28. For these reasons the Tribunal is satisfied that the terms and condition applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

29. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

30. Regulation 5.19(4)(f) 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.

31. There is no information before the Tribunal which suggests that there is any adverse information known to the Department.

32. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

33. Regulation 5.19(4)(g) requires that the applicant 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.

34. Mr Buldawo for the applicant gave evidence that the applicant has complied with workplace relations laws. The Tribunal has no evidence that contradicts the applicant’s submission and is satisfied that the applicant has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

35. Accordingly the requirements of r.5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)

36. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 16/045), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.

37. Relevantly for this matter, as an application under the Regional Sponsored Migration Scheme visa under the Direct Entry nomination stream, the Tribunal has found:

    ·The instrument IMMI 16/045 was the instrument in force for nomination applications for determining ‘regional Australia” at the time this application was made;

    ·Consistent with the Department’s policy intention: that IMMI 17/059, which revoked IMMI 16/045 was to only apply to nominations made on or after it commenced, the instrument that was in force at the time the application was made is the instrument that applies to determining ‘regional Australia’ for the purposes of r.5.19.[1];

    [1] See the Skilled Visa E news November 2017 publication which was published at the time IMMI 17/059 took effect, at: .

    ·Both the position (Contract Administrator) and the business (Satyam Facility Services Pty Ltd), being located in Western Australia, were located in ‘regional Australia’ as the entire state of Western Australia was included as regional Australia in IMMI 16/045;

    ·For these reasons the Tribunal is satisfied that the position is in regional Australia.

    ·The applicant provided oral and written evidence that the business is a cleaning and facility management contractor. The applicant has entered into evidence a list of over 200 clients as at 5 May 2021.

    ·Written and oral submissions identify that contract and service administration is the core business of the applicant and the current two positions of Contract Administrator are essential positions that are very relevant to the company’s purpose and existence as it could not function well without having good control of its contracts or agreements.

    ·It was put to the Tribunal that these positions are the lifeblood of the business’s existence and that the positions must be employed and under the direct control of the business.

    ·For these reasons the Tribunal is satisfied that there is a genuine need to employ a paid employee to work in the position under the nominator’s direct control.

    ·Mr Buldawo stated that he had advertised the position and was unable to find any suitable Australian citizen or permanent resident to fill the role. A statement outlining recruitment efforts dated 8 March 2017 was provided to the Tribunal which confirmed Mr Buldawo’s statements. Contemporaneous advertisements were also provided.

    ·For these reasons the Tribunal is satisfied that the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area.

    ·The Tribunal is satisfied that the tasks performed in the position as described in the position description provided and confirmed orally by Ms Basoodelsing closely resemble the tasks of the occupation Contract Administrator – ANZSCO Code 511111 contained in Schedule A of the instrument IMMI 15/083 and there are no additional applicability requirements for this occupation.

    ·File evidence demonstrates to the satisfaction of the Tribunal that Skilled Migration WA, Department of Training and Workforce Development, as the Regional Certifying Body described in the relevant instrument IMMI 16/045, located in the same State as the position has advised the Minister about the matters in r.5.19(4)(e) and r.5.19(4)(h)(ii)(B) & (C) on 28 March 2017.

38. Accordingly, the requirements of r.5.19(4)(h) are met.

    CONCLUDING PARAGRAPH

39. 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

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

    George Hallwood
    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.

    …

    Direct Entry nomination

    (4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’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)       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

    (g)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

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).