SM Business Group Pty Ltd ATF Mia Family Trust (Migration)

[2020] AATA 3237

SM Business Group Pty Ltd ATF Mia Family Trust (Migration) [2020] AATA 3237 (18 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SM Business Group Pty Ltd ATF Mia Family Trust

CASE NUMBER:  1732158

DIBP REFERENCE(S):  BCC2017/2294198

MEMBER:Amanda Ducrou

DATE:18 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 18 June 2020 at 5:02pm

CATCHWORDS
MIGRATION – nomination –Temporary Residence Transition nomination stream – sufficient financial resources to meet ongoing financial liabilities–  actively and lawfully operating a business in Australia – nominee was employed in the nominated position in a full time capacity– decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR, 359
Migration Regulations 1994, rr 5.19, 5.37, Schedule 2, cl.457.223

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 on 28 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).

2. The applicant applied for approval on 28 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).

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 that the applicant’s nomination did not satisfy r.5.19(3)(h) of the Regulations because the evidence did not establish 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.

5. On 3 December 2019 the Tribunal wrote to the applicant in accordance with s.359(2) of the Migration Act 1958 (the Act) inviting the applicant to provide information to the Tribunal. The letter invited the applicant to provide information that demonstrated that all of the relevant criteria in r.5.19 of the Regulations were met currently including, but not limited to, the criteria that the delegate had found were not established. Extracts of relevant parts of r.5.19 accompanied the letter. The letter asked the applicant to provide the information by 17 December 2019 and noted that the applicant could request an extension of time, but any such request must be received before 17 December 2019. The letter explained that if the requested information was not received within the period allowed or as extended (if an extension were requested and granted), then the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant responded to the Tribunal’s request for information on 17 December 2019 and provided written submissions (dated 17 December 2019) and documents in support of the application. The Tribunal received an email from the applicant’s representative containing further submissions on 13 February 2020.

7. The Tribunal did not consider that it was necessary to conduct a hearing as it was able to find in favour of the applicant on the basis of the material before it.

8. The applicant’s registered migration agent, Mr Rick Gunn, represented the applicant in relation to the review.

9. 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

10. 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)

11. 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.

12. On the basis of the information in the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the fee prescribed in r.5.37. The relevant s.245AR(1) certification was also provided in the application form.

13. The application for approval identifies Mr Mohammad Abdullah Al Mamun as the nominee. According to the Department’s records, Mr Al Mamun held a Subclass 457 visa granted on 27 March 2015 on the basis of satisfying cl.457.223(4) at the time the application was made.

14. The application for approval identifies the occupation of Bricklayer (ANZSCO 331111). The Tribunal is satisfied, based on the employment documents for the nominee, that the occupation identified in the application for approval is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is satisfied that this occupation carries the same 4-digit code (3311) as the occupation carried out by the nominee while he held the Subclass 457 visa.

15. Given the above findings, the requirement in r.5.19(3)(a) is met.

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

16. 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.

17. The Department’s records confirm that the nominator was the standard business sponsor who last identified Mr Al Mamun in a nomination made under s.140GB of the Act. The nominator 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. The documents before the Tribunal included: an ASIC extract report for the applicant; certificate of registration of the applicant on 5 September 2012 as a company, issued by ASIC; deed dated 6 September 2012 establishing the Mia Family Trust (the Trust) with the applicant named as the trustee (executed by Mr Md Sohel Mia as the sole director and sole company secretary of the applicant on behalf of the applicant as trustee and by the settlor of the Trust); financial statements for the 2016 financial year, prepared by the applicant’s accountant, not signed; financial statements for the financial years from 2017 to 2019 (the financial statements include 2016 financial year information), prepared by the applicant’s accountant, including compilation reports completed and signed by the applicant’s accountant and director’s declarations signed by Mr Md Sohel Mia; the applicant’s tax returns for the 2018 and 2019 financial years; declarations confirming the electronic lodgement of the applicant’s company tax returns with the Australian Taxation Office (ATO) for the 2018 and 2019 financial years signed by Mr Sohel Mia as the applicant’s public officer; ATO tax agent portal printouts of activity statements lodged by the applicant with the ATO for the third quarter of the 2017 financial year and for the full 2018 and 2019 financial years; a chart provided by the applicant detailing its organisational structure; and other information about the applicant’s business activities. The documentary evidence was consistent with the applicant actively and lawfully operating a business in Australia.

19. The Tribunal is satisfied, based on the material before it, that the nominator is actively and lawfully operating a construction business trading as Cordial Homes at 21 Longfield Way, Deer Park, Victoria, Australia.

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

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

21. 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.

22. In this case, the relevant provision is r.5.19(3)(c)(i). This nomination application was made on 28 June 2017. The nominee was granted the Subclass 457 visa to work in the nominated occupation of Bricklayer on 27 March 2015. The position identified in the nomination application was Bricklayer (ANZSCO 331111).

23. The Tribunal was provided with: the nominee’s PAYG payment summaries for the 2015 to 2019 financial years; taxation notices of assessment issued by the ATO to the nominee for the 2015, 2017, 2018 and 2019 financial years; letter dated 1 September 2014, signed by Mr Sohel Mia as Managing Director of the applicant setting out an offer of employment made by the applicant to the nominee and including details of the offered position and the proposed remuneration; employment agreement signed on 10 September 2014, made between the applicant and the nominee; position description; letter dated 17 December 2019 from Mr Sohel Mia as Managing Director of the applicant regarding the period of the nominee’s employment and his duties. The documentation before the Tribunal was consistent with the nominee having been employed on a full-time basis by the applicant as a Bricklayer from at least 1 May 2015. The Tribunal is satisfied based on the documents that the nominee’s employment with the nominator in that position has been continuing and is current.

24. Based on the material before it, the Tribunal is satisfied that the nominee has been employed by the nominator in the position of Bricklayer on a full-time basis in Australia for at least two years in the three years immediately before the nomination application was made.

25. 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)

26. 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.

27. The nominee is a person to whom r.5.19(3)(c)(i) applies. The employment agreement signed on 10 September 2014 made between the applicant and the nominee provides for the nominee’s employment on a full-time basis. It does not expressly exclude the possibility of extending the period of the nominee’s employment. The employment agreement stipulates that the nominee’s base annual salary is $60,000 per annum. It provides that, in addition to the stipulated base annual salary, the nominee is entitled to compulsory superannuation guarantee contributions based on his annual salary (the nominee’s gross annual remuneration including superannuation being $65,700 per annum).

28. The Tribunal considered the evidence relating to the applicant’s financial capacity to employ the nominee for at least two years.

29. The Tribunal’s analysis of the financial statements did not identify anything of remark. The financial statements showed sales from trading operations of $4,722,734.26 for the 2018 financial year and $3,727,692.03 for the 2019 financial year. Gross profit from trading was $440,824.21 for the 2018 financial year and $402,310.98 for the 2019 financial year. The financial statements showed wages expenditure of $140,060 for the 2018 financial year and $140,000.04 for the 2019 financial year. The operating profit from ordinary activities before income tax was $49,876.28 for the 2018 financial year and $37,417.59 for the 2019 financial year. The financial statements showed increases in retained profits for the 2018 and 2019 financial years. The value of the net assets was $373,853.46 for the 2018 financial year and $400,981.77 for the 2019 financial year. The Tribunal considered that the information in the financial documents was consistent with the applicant’s business being profitable and with the revenue of the business being sufficient to meet the expenses, including its payroll expenditure for the nominee and its other employees on an ongoing basis.

30. The Tribunal acknowledges that the public health measures implemented by the Australian Commonwealth and Victorian governments in response to the COVID-19 pandemic may have impacted on the applicant’s business operations. However, having regard to the information in the financial documents and the other documentary evidence, the Tribunal is of the view that the applicant is well-placed to resume its previous level of operations following the relaxation of the public health measures. The Tribunal is satisfied that the evidence demonstrates that the applicant is in a sound financial position with sufficient financial resources to meet ongoing financial liabilities.

31. The Tribunal is satisfied, based on the material before it, that the applicant has the financial capacity to employ the nominee as a full-time Bricklayer and that the applicant has the financial capacity to maintain the nominee’s employment as a full-time Bricklayer for at least the next two years.

32. 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)

33. 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.

34. The terms and conditions of the employment agreement signed on 10 September 2014 include terms relating to the nominee’s working hours, his annual salary and superannuation. The employment agreement provides that the nominee’s entitlements to leave, including long service leave, are determined in accordance with the applicable legislative requirements. Based on the documentary evidence, the Tribunal accepted that the nominee’s current salary is $60,000 per annum, plus superannuation at the applicable statutory rate of 9.5%.

35. The application form stated that there is no Australian employee or employees in the nominee’s workplace doing the same work as the nominated person. The organisation chart provided by the applicant confirmed this. As there is no Australian employee or employees in the nominee’s workplace doing the same work as the nominee, the Tribunal considered that it is appropriate to have regard to relevant market information.

36. The applicant’s representative submitted that the nominee’s salary of $60,000 per annum, plus superannuation, is the Australian market salary rate for the nominated position. The information the applicant provided included: an extract from the Building and Construction General On-site Award 2010 setting out minimum wage rates for an adult employee; a Fair Work Ombudsman pay rate summary obtained on 13 December 2019 for a construction worker level 5/engineering  construction worker level 5 (CW/ECW 5) under the Building and Construction General On-site Award 2010 including base rate allowances ($27.05 per hour, $1,027.79 per week, $53,445.08 per annum); and a Payscale website extract ( accessed on 16 August 2019 that lists the median hourly pay for a Bricklayer in Melbourne as $29.75 per hour (equating to $1,130.50 for a 38-hour working week or $58,786 per annum). The nominee’s rate of pay of $60,000 per annum exclusive of superannuation equates to a rate of pay of approximately $30.36 per hour or $1,153.85 per week for a 38-hour working week, excluding superannuation. This rate of pay is higher than, and compares favourably with, the rates of pay set out above.

37. The Tribunal is satisfied, based on the employment agreement, the other documentary evidence and the award information, that the terms and conditions of employment 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 nominator’s business premises.

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

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

39. 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.

40. The written submissions from the applicant’s representative dated 17 December 2019 addressed the applicant’s fulfilment of the training requirements and training obligations. The applicant submitted that the period of its most recent approval as a standard business sponsor commenced on 15 February 2016 and ended on 6 September 2019. Documents the applicant provided, which were issued by the Department, were consistent with this. The period that commenced on 15 February 2016 and ended on 6 September 2019 is the period relevant to the Tribunal’s considerations.

41. The applicable training benchmarks are specified in legislative instrument IMMI13/030. In accordance with IMMI13/030, the applicant may comply with the training requirements in either of two ways. In summary: Training Benchmark A requires the applicant to demonstrate recent expenditure by the business to the equivalent of at least 2% of its payroll to an industry training fund that operates in the same industry as the business; and Training Benchmark B requires the applicant to demonstrate recent expenditure by the business to the equivalent of at least 1% of its payroll in the provision of training to its employees.

42. The applicant submitted that it had elected to meet Training Benchmark A, by making donations to an industry training fund or scholarship fund equal to at least 2% of its gross payroll for the relevant period. The written submissions dated 17 December 2019 contained the following information regarding the applicant’s payroll and its contributions towards Training Benchmark A:

Financial Year	Gross Payroll (Wages + Superannuation)	2% of Gross Payroll	Donation Details
2017	$140,000 + $13,300 = $153,300	$3,066	$4,200 on 14 February 2017
2018	$140,060 + $23,275 = $163,335	$3,266.70	$4,500 on 12 February 2018
2019	$140,000.04 + $24,208.43 = $164,208.47	$3,284.17	$4,500 on 9 December 2019
Total	$9,616.87	$13,200

1. The payroll details set out in the table are consistent with the information in the financial statements. The applicant provided receipts issued by Sydney Institute of TAFE and TAFE NSW that confirmed the receipt from the applicant of the contributions identified in the table.

2. The obligation to provide training under r.2.87B requires the sponsor to comply with training requirements for each individual 12-month period they are a standard business sponsor of at least one primary sponsored person on a Subclass 457 visa: r.2.87B(2). The applicant acknowledged that the dates set out in the table do not precisely match the dates of each year within the period of the standard business sponsorship. The applicant submitted that the methodology set out in the table was the standard practice used by the Department in assessing compliance with the Training Benchmark. Noting the inconsistency, as acknowledged by the applicant, the Tribunal was not satisfied that the evidence established that the applicant has met Training Benchmark A during the period of its most recent sponsorship approval, being the period that commenced on 15 February 2016 and ended on 6 September 2019. No evidence was provided of the applicant meeting Training Benchmark B during that period.

1. The Tribunal considered whether it is reasonable to disregard r.5.19(3)(f)(i) as provided for under r.5.19(3)(f)(ii). The Department’s policy guidelines (as set out in the Procedures Advice Manual, or PAM3) provide guidance to the decision maker (in this review, the Tribunal) by setting out factors that may be considered in deciding whether or not it is reasonable to disregard r.5.19(3)(f)(i). The policy makes it clear the decision maker should take a flexible approach and must assess the circumstances of each case on its merit. The policy provides, as an example of where the decision maker may form the view that it is reasonable to disregard r.5.19(3)(f)(i), a situation where the nominator has aggregated expenditure over the term of the most recently approved sponsorship commensurate with the total training commitment for that period (as a time of decision assessment). The Tribunal is mindful that while it may be guided by policy, it is not bound to follow policy (see Brennan J in Re Drake No. 2 (1978-1980) 2 ALD 634). The Courts have held that the Department’s PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.

2. The Tribunal accepted that the evidence was consistent with the applicant maintaining a commitment to the ongoing training of employees in its industry. The very fact that the applicant was approved as a standard business sponsor required the Department to be satisfied of the applicant’s commitment to training its Australian employees. Noting the contribution by the applicant of $4,500 to TAFE NSW on 9 December 2019, the Tribunal accepted that the applicant’s aggregated expenditure on training for the term of the most recently approved sponsorship was in excess of the 2% of its payroll required to meet Training Benchmark A. The Tribunal was persuaded by the evidence before it that a flexible approach is warranted in the circumstances of this case. Having regard to the available evidence, the Tribunal is satisfied that, on this occasion, it is reasonable to disregard r.5.19(3)(f)(i).

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

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

4. 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.

5. There is no information before the Tribunal indicating that there is adverse information known to the Department about the nominator or a person associated with the nominator.

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

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

7. 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.

8. The delegate decided to reject the application for approval of the nomination made by the applicant on the basis that the applicant did not demonstrate that the nominating business made superannuation guarantee contributions on behalf of its employees for the 2016 financial year. The delegate found that there was no evidence that the applicant met the approved Superannuation Guarantee Contribution rate in accordance with the Superannuation Guarantee (Administration) Act 1992 for the 2016 financial year.

9. The Department’s records contained submissions from the applicant’s representative that in the 2016 financial year, another entity paid the wages and superannuation for employees of the nominating business. The financial documentation before the Tribunal was consistent with the submissions. Having regard to the documentary evidence, the Tribunal accepted that the applicant did not fail to meet its statutory obligations to provide superannuation contributions for employees in the 2016 financial year as the employees’ wages and superannuation were paid by the other entity.

10. There is no information before the Tribunal indicating that the applicant does not have a satisfactory record of compliance with workplace relations laws in the location in which the applicant operates its business and employs employees in the business.

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

12. 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

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

    Amanda Ducrou
    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.