Shri Baba Deep Singh Pty Ltd (Migration)

[2021] AATA 1669

Shri Baba Deep Singh Pty Ltd (Migration) [2021] AATA 1669 (6 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Shri Baba Deep Singh Pty Ltd

CASE NUMBER:  1813729

HOME AFFAIRS REFERENCE(S):          BCC2017/1908909

MEMBER:Glenn O’Brien

DATE:6 April 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 06 April 2021 at 12:05pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Transport Company Manager – training commitments and obligations – Training Benchmark A and B – relevant regulations no longer apply – 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 20 April 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 30 May 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.

4. The applicant provided the Tribunal with a copy of the delegate’s decision record with the application for review. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(f) of the Regulations because the delegate was not satisfied the applicant met its training commitments under either Training Benchmark A or B.

5. On 9 November 2020, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.5.19 of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, financial records, ASIC information, an employment contract, passport copy, an organisational chart and various training documents and invoices. All material received prior to the review hearing has been duly considered by the Tribunal.

6. Mr Gurial Sigh a Director of the applicant appeared before the Tribunal on 7 January 2021 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 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.

11. The nominator lodged an online application for the Temporary Residence Transition nomination stream. The position is for a Transport Company Manager (ANZSCO Code 149413). Having regard to the evidence, the Tribunal is satisfied that the application was made on the approved form, accompanied by the prescribed fee and included written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act.

12. The application for nomination identifies Mr Navair Singh (‘the nominee’) who held a Subclass 457 visa that was granted on the basis of satisfying cl.457.223(4) of Schedule 2. Having regard to the evidence, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is accordingly satisfied that this occupation carries the same 4-digit code as the occupation carried out by the nominee whilst he held the Subclass 457 visa.

13. Given the above findings, the requirement in r.5.19(3)(a) is 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. The applicant company had a turnover of $1,228,553.21 and $2,534,979.88 for the years ending 30 June 2019 and 2020 respectively.  Having regard to the documentary evidence including financial records, taxation returns, business project information and ASIC records, in conjunction with the oral evidence on behalf of the applicant, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia. Further, the Tribunal is satisfied that the applicant is the relevant standard business sponsor who last identified the nominee, being a Subclass 457 visa holder, in a prior relevant nomination in relation to that visa.

16. Given the above, 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 two of the three 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 two years in the three years immediately before the application.

18. Of some concern to the Tribunal was that the nominee was employed as a sub-contractor from 25 December 2017 to 29 June 2020.  Prior to the nomination application Mr Singh told the Tribunal that he commenced employment on 15 February 2015. On the basis of the evidence before the Tribunal the Tribunal is satisfied the nominee was employed by the applicant in the nominated application for at least two years of the three years preceding the application. 

19. 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)

20. 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 two years on terms that do not expressly preclude the possibility of an extension.

21. Having regard to the documentary evidence, including the terms and conditions of the nominee’s employment as provided in the current employment contract dated 29 June 2020, payslips (provided after the hearing) and taxation records, the Tribunal is satisfied that the nominee will be employed on a full time basis for at least two years on terms that do not expressly preclude the possibility of an extension. Further, the Tribunal accepts the oral evidence of Mr Singh that this is the case. Additionally, having considered the submitted financial records, the Tribunal is satisfied that the applicant has the financial capacity to pay the full-time salary for the nominated position for at least two years. The Tribunal notes that the nominee has been engaged by the applicant either by way of an employment contract or as a sub-contractor continuously for over five years.

22. 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)

23. 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.

24. The applicant submitted an employment contract providing the nominee with a base annual salary of $67,600 plus superannuation.  On the basis of the documentation provided to both the Department and the Tribunal, the Tribunal is satisfied that the nominee’s current salary and other terms and conditions of employment are 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. 

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

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

26. 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.

27. The applicant provided documents evidencing expenditure in relation to Training Benchmark A and B.  However, after the hearing and prior to the decision the applicant obtained its most recent standard business sponsorship approval valid from 25 January 2021 to 25 January 2026.

28. While the nomination application was made prior to 18 March 2018 the applicant’s most recent standard business sponsorship approval was made after 18 March 2018 and as such there are no training benchmarks which apply to the applicant at the time of decision.

29. In summary, as the nomination was made before 18 March 2018 but the most recent standard business sponsorship approval was made after 18 March 2018, there are no training benchmarks which apply to the applicant as per the criteria in r.2.59(d) and (e) of the relevant regulations no longer apply given their repeal by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018.

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

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

31. 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. 

32. There is no evidence of adverse information contained in the Department file, or before the Tribunal, about the applicant (‘the nominator’) or a person associated with the applicant.

33. Accordingly, the requirement in r.5.19(3)(g) is met.

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

34. 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.

35. There is no evidence before the Tribunal suggestive of the applicant not having a satisfactory record of compliance with Commonwealth or State workplace relations laws. 

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

37. 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

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

    Glenn O’Brien
    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.