Spiecapag Australia Pty Limited (Migration)

[2021] AATA 1674

Spiecapag Australia Pty Limited (Migration) [2021] AATA 1674 (7 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Spiecapag Australia Pty Limited

CASE NUMBER:  1814334

HOME AFFAIRS REFERENCE(S):  BCC2017/1851590

MEMBER:Ian Berry

DATE:7 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 07 April 2021 at 12:51pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Finance Manager – financial capacity to maintain term of employment – financial information 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 27 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 24 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 2 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 the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the delegate was not satisfied the applicant could employ the nominee for 2 years full-time. The applicant did not provide any information relevant to the applicant’s financial position.

5. The Tribunal decided to hold a combined hearing of the applicant and the applicant’s nominee Mr Moreau (the visa applicant).  Mr Moreau and Ms Natalie Daley represented the nominator on the second hearing.  Mr Moreau and Ms Daley both gave evidence on behalf of the applicant. Also attending the hearing Ms Caroline Dacron, the wife and secondary applicant of the nominee. There were two hearings, on 17 February 2021 and then on 17 March 2021.  The reason for the second hearing, was to provide the applicants the opportunity to provide further information and comment relevant to the Tribunal’s s.359AA invitation.  As a matter of courtesy, the Tribunal provided the applicants with a written copy of the oral invitation. 

6. The Tribunal exercised its discretion to hold the first hearing by telephone and the second hearing by Microsoft Teams video.  During the Covid-19 pandemic, special circumstances existed for the hearing to proceed by way of telephone.  The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient.  A hearing by telephone achieved this end.  Representing the applicant was Ms Natalie Daley with the visa applicant Mr Moreau also appearing.  Both this application for review and the nominee’s application were a combined hearing.

7. The applicant was represented in relation to the review (from the 5 March 2021) by its registered migration agent Ms Lillian Ajuria MARN 9791466. 

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.

10. The applicant provided to the Department with the following information:

    ·TafeSA tax invoice 27 August 2015

    ·Taxation & Payroll Training tax invoice 19 October 2015 for training with the employee Ms Debra Rothery

    ·TafeSA payment receipt 28 August 2015

    ·Receipt for payment of $930.02 Workplace info subscription (one user license)

    ·Australian Business Consulting & Solutions Tax invoice 13 July 2015 for $930

    ·Payslip for the nominee from 1 April 2017 to 30 April 2017 and other payslips

    ·Gross payroll expenditure, training expenditure from July 2015 to June 2016

    ·PAYG payment summary of the nominee for tax year 2014, 2015, and 2016

    ·Job outlook information concerning finance managers

    ·Letter of employment with the applicant and the nominee 10 February 2015

    ·Letter from the applicant concerning employment of the nominee with salary amount

11. The applicant did not provide the Department with any financial information upon which the delegate may have considered in determining whether it could employ the nominee for two years full-time.

    Section 359(2) Invitation

12. On 17 November 2020, the Tribunal invited the applicant to provide information relevant to training benchmark information in respect of the sponsorship period of 4 July 2016 to 3 July 2018.  In response the applicant provided updated information concerning the nominee, his tasks, job description and training benchmark information.

    Section 359AA

13. At the first hearing on 17 February 2021, the Tribunal put to the applicant and visa applicant the following information: The Tribunal has considered all the information provided by the applicant relevant to the nomination of the finance manager Mr Moreau. Pursuant to section 359AA of the Migration Act, the Tribunal will provide the applicant with information that the Tribunal considers that may be a reason or part of a reason, for affirming the decision under review. The s.359AA oral invitation is set out below:

    Under IMMI 30/030, the applicant is required to make a contribution relevant to training employees who are either Australian or Australian permanent residents.  The amount to be paid as calculated under IMMI 30/030 and section 140 of the Migration Act 1958 and Regulation 5.19(3)(f)(i) noting that this sub regulation is subject to regulation 5.19(3)(f)(ii).  The later regulation gives the Tribunal a discretion to disregard regulation 5.19(3)(f)(i).

    IMMI 30/030 was effective from 1 July 2013 and provides the criteria in Schedule A.  The criteria is divided into A and B.  It appears the applicant has decided to satisfy B.  In doing so any training the details of which are set out in B must be referable to several criteria including that the training must be, or include, Australian citizens and Australian permanent residents.  The Tribunal notes that to their appears not to be any evidence of the trainees being either Australian citizens or Australian permanent residents.  Also, to the Tribunal, it is not clear that there is evidence of payment of external providers to deliver training for Australian employees.

    PAM3 gives commentary, which the Tribunal may or may not consider appropriate, as to what is to be taken into account in deciding how to calculate the amount payable as a contribution.  PAM3 refers to ‘payroll’ in “key terms used to describe the training benchmarks” where “payroll" is given a meaning under policy and which is described as expenditure including any wage, remuneration, salary, commission, bonuses, allowances, superannuation contributions or eligible termination payments, defined as wages in the Act relating to payroll tax in the relevant State/Territory, that the applicant has paid to their employees during the 12 month period; and payments made to contractors or subcontractors during the same period if work provided by the contractor is related to the service/product provided by the sponsor’s business (for example, the contractor is a bricklayer and the applicant is a construction company) – regardless of whether such payments are included for payroll tax purposes or not.

    In PAM 3 policy, payroll expenditure includes examples under the ‘note’.

    There does not appear to be any information of the inclusion of contractor and subcontractor payments in calculating the payroll.  The Tribunal has inferred that there are contractors and subcontractors by reason of the nature of the applicant’s business or businesses.

    The applicant’s nominee Mr Moreau required to have worked for the applicant full-time for 2 years in the past 3 years immediately before the nomination application was made.  Information relating to Mr Moreau suggests that he has spent a substantial amount of time overseas.  Depending on the amount of time he has spent overseas:

    The Tribunal may be unsatisfied that he has spent at least 2 years in the last 3 years in his employment; or

    The Tribunal may be unsatisfied that the applicant’s nominee Mr Moreau has not complied with regulation 519(3)(c)(B) in that he has spent a considerable time overseas while the holder of a 457 visa.

    Is there any part of what has been said by the Tribunal that you do not understand?  As a matter of courtesy, I will provide you with a copy of the document I have read to you which may be of assistance and you are understanding the issues now faced by the Tribunal.

    I invite you to make comment or provide information in respect to what has been said by the Tribunal.

    I also invite you to consider the matters raised in this s.359AA invitation to consider whether you need more time to consider the information to be able to provide more information or make comment.

    I will now hear from you.

14. The applicant responded to the Tribunal’s invitation with information by providing evidence at the second hearing. The applicant’s Ms Daley and the nominee both gave evidence upon which the Tribunal accepts. The visa applicant made submissions on his own behalf, as did the applicant’s spokesperson Ms Daley and the migration representative for both the applicant and the visa applicant.  Subsequently, the newly appointed migration representative provided a submission on the issue relevant to the applicant satisfying the training benchmark criteria.

    The application must be compliant: r.5.19(3)(a)

15. 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.

16. The departmental file before the Tribunal included the applicant’s application for Employer Nomination for a Permanent Appointment form dated 24 May 2017.  The Tribunal is satisfied the application was made on the correct form and was accompanied by the prescribed fee.  It identifies Mr Julien Moreau as the nominee who held a Subclass UC-457 visa granted on satisfying cl. 457.223(4) to be employed as the Finance Manager in the applicant’s organisation.  The finance manager in ANZSCO coded 132211.  In his oral evidence the nominee said he started as a costs controller in France with the parent company and then worked in Australia and was promoted to finance manager.  Evidence given by him supports his undertaking that position.

17. The application identifies a genuine need for the nominator to employ the nominee, as a paid employee, to work in the position under the nominators direct control.  The application includes a certification of the applicant not engaging in conduct that contravenes s.245AR(1).

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

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

19. 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.

20. The applicant is the nominator and sponsor of the nominee.  The applicant was approved as a sponsor before being approved for the sponsorship period 4 July 2016 to 4 July 2024.  Initially, the sponsorship period was less than that mentioned, however the applicant applied for an extension to 4 July 2024.

21. The applicant operates a reasonably substantial pipeline/drilling business in Australia.  It is part of a large organisation based in France.  Evidence given by the applicant’s representatives and in documentation confirms its financial presence in Australia in undertaking piping work in various Australian States.  The Tribunal finds and is satisfied the applicant is actively and lawfully operating a business in Australia.  Further, there was not granted its most recent business sponsorship based on meeting either r.1.20DA, r.2.59(h) or Regulation 2.68(i).

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

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

23. 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.

24. The nominee commenced employment with the applicant on 24 May 2014 and has been employed by the applicant from that time until now.  The nominee stated in his evidence of having initially commenced as a cost controller and before the nomination application rose to the position of finance manager. On 1 January 2015, the nominee was appointed as one of the directors of the applicant.

25. The applicant was incorporated on 25 November 1994. It applied for and received approval of the nominee as its finance manager. The nominee was identified in the applicant’s nomination application made on 24 May 2017.

26. 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)

27. 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.

28. The applicant is an Australian company but under the umbrella of a multinational company. Its salary payroll for Australia is just over $2.3 million. The applicant’s nominee is a integral part in the applicant as its finance manager. The applicant and nominee have entered into an employment agreement where it verifies the nominee being employed for at least two years full-time.

29. 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)

30. 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.

31. Information provided by the applicant consists of Job Outlook an Australian government initiative website where the occupation of finance manager indicated a finance manager could be expected to receive little over $2,000 per week.  The nominee is being paid just before the nomination application where he is identified as the nominee, $130,639 with a reportable fringe benefit of $15,058.  The nominee is paid monthly in arrears and for the month ending 31 August 2015, the nominee was paid $11,100.05 gross, $7,993.05 plus superannuation.

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. The applicant as an approved standard business sponsor was granted the sponsorship period initially of 2013 to 2016.  Then it applied for an extension, which was granted from 4 July 2021 to 6 November 2024.  That approval was made on 6 November 2019.

35. The Tribunal is of the view that the applicant’s most recent sponsorship was from 4 July 2016 to 6 November 2021.  The Tribunal’s reasoning is that to the sponsorship extension has not yet commenced.  As r.2.59(d) and(d) were repealed on 18 March 2018, standard business sponsorship application is approved on or after 18 March 2018 did not need to satisfy the training benchmarks.  Where an applicant’s training benchmark period commenced before 18 March 2018 and extended after 12 August 2018, an applicant was not required to provide training benchmark obligations because r.  2.87B was repealed.  This applicant is required complete its obligations under the training benchmark legislation up to 12 August 2018.

36. The applicant provided the Tribunal with the tax invoices and sponsorships with TAFE (South Australia) making both IMMI 13/030 (A) and (B) relevant.  The applicant needed to comply with the training benchmark provisions from 4 July 2016 to 12 August 2018.  The Tribunal finds and is satisfied that it has complied with the training benchmark criteria.

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

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

38. 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.

39. The departmental and Tribunal files do not reveal any adverse information known about the nominator or the nominee.  The Tribunal is satisfied and finds that there is not to any known adverse information which applies to this case. 

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

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

41. 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.

42. The applicant has a satisfactory record of compliance with the laws of the Commonwealth and each of the states and territories relating to workplace relations. 

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

44. 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

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

    Ian Berry
    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.