Sprittz Pty Ltd ATF Royal Unit Trust (Migration)

[2021] AATA 1149

Sprittz Pty Ltd ATF Royal Unit Trust (Migration) [2021] AATA 1149 (8 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sprittz Pty Ltd ATF Royal Unit Trust

CASE NUMBER:  1820255

HOME AFFAIRS REFERENCE(S):          BCC2017/4302918

MEMBER:Michael Cooke

DATE:8 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 08 March 2021 at 6:08pm

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition Nomination stream – position of Cook – financial capacity to employ the nominee for at least 2 years – terms and conditions of employment – training commitments and obligations – Fair Work Ombudsman monitoring – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 140, 245, 359
Migration Regulations 1994, Schedule 2 cl 457.223; rr 1.13, 5.19, 5.37

CASES

Hasran v MIAC [2010] FCAFC 40

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 29 June 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 16 November 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

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 business has not demonstrated the financial capacity to pay the full-time salary for the nominated position for at least 2 years.

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

6. Following an Invitation pursuant to s.359(2) of the Act the applicant’s representative provided a plethora of additional information pursuant to reg.5.19(3).

7. 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

8. 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)

9. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.

   Findings and reasons in relation to whether r.5.19(3)(a) is met and whether the application:

   ·was made on the form 1395, or 1395 (Internet) for post 23 March 2013 applications, and accompanied by the fee prescribed in r.5.37;

   ·includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1);

   ·identifies a person who holds a Subclass 457 visa granted on the basis of satisfying cl.457.223(4);

   ·identifies an occupation in relation to the position that is listed in ANZSCO and has the same 4 digit code as the occupation carried out by the Subclass 457 visa holder; and

   ·identifies a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

10. The Tribunal finds, from the evidence on file concerning the above findings, that the requirement in r.5.19(3)(a) is met.

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

11. 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.

12. The Tribunal finds that the nominator:

    ·is/was the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act or under r.1.20G or 1.20GA (pre 14 September 2009); and

    ·is actively and lawfully operating a business in Australia; and

    ·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).

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

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

14. The Tribunal finds from the information before it that the nominee (Ramesh MAHARJAN) has worked as a Cook for SPRITTZ PTY LTD ATF ROYAL UNIT TRUST since 2013 and with a Subclass 457 visa since 2015 and was subsequently granted a Subclass 482 visa in 2019.

15. 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)

16. 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.

17. The Tribunal finds that the nominee will be employed on a full-time basis for at least 2 years; and the terms and conditions of the person’s employment will not expressly exclude the possibility of extending the period of employment.

18. 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)

19. 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.

20. The Tribunal finds from the additional information now available 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.

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

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

22. The Tribunal finds from the additional information now available that during the period of the applicant’s most recent sponsorship approval the applicant fulfilled commitments made relating to meeting the training requirements during that period and complied with the applicable sponsorship obligations relating to the applicant’s training requirements during that period; and

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

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

24. 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. 

25. The Tribunal finds that there is no adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.

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

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

27. 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.

28. The applicant informs it has been subject to monitoring by the Fair Work Ombudsman. The applicant informs that it has provided supporting evidence to the Fair Work Ombudsman in response to the Compliance Notice and subsequently, the applicant received a letter to acknowledge that the company has complied with the Compliance Notice. As a result, no further action was taken by the Fair Work Ombudsman in relation to the contraventions detailed in the Compliance Notice. An attached Letter of Acknowledgement of Compliance dated 12 August 2019 has been submitted to the Tribunal.

29. In view of the above information the Tribunal finds that the nominator has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

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

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

31. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

32. The Tribunal finds that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

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

34. 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

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

    Michael Cooke
    Senior Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

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

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

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

    (ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.