Star Cycle Pty Ltd (Migration)

[2019] AATA 4131

Star Cycle Pty Ltd (Migration) [2019] AATA 4131 (29 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Star Cycle Pty Ltd

CASE NUMBER:  1717924

DIBP REFERENCE(S):  BCC2017/2296283

MEMBER:S. Jones

DATE:29 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 29 August 2019 at 10:14am

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination stream – Motor Mechanic – standard business sponsor – nominee employed full-time in position for two years – financial capacity to employ nominee for minimum of two years – employment extension not precluded – training requirements met – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 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 Immigration on 8 August 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 (3)(d) and r.5.19 (3)(f) of the Regulations because the applicant failed to provide sufficient verifiable evidence in support of the legal requirements. Specifically, the applicant failed to provide supporting documents to confirm the terms and conditions of employment of the nominee and provided no financial evidence that the business has the financial capacity to provide a permanent, full time position to the nominee for at least two years.

5.The applicant’s Director, Mr Yakov Idan appeared before the Tribunal on 19 July 2019 to give evidence and present arguments on behalf of the applicant.

6.The applicant was also represented in relation to the review by its registered migration agent, Mr Hammond of Hammond Taylor.

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.

10.On the basis of the information in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the prescribed fee and that the  relevant written certification relating to conduct that contravenes s245AR(1) has also been provided as part of the application form.

11.The Tribunal is also satisfied that the application for approval identifies Mr Jordan BOESPFLUG as the relevant 457visa holder. The occupation identified in the application is a Motor Mechanic (General - 321211) and has the same 4-digit code (ANZSCO 321211) as the occupation carried out by the relevant holder of the subclass 457 visa.

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

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

13.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.

14.Department records confirm that the nominator is the standard business sponsor who last identified, Mr Jordan Boespflug as the nominee in the nomination made under s.140GB of the Act.

15.The Tribunal is satisfied that on the basis of all the material before it, including ASIC current company extract; financial statements for financial years 2017, 2018 and 2019; Business Activity Statements; company tax returns for 2017 and 2018; payroll activity documents; letter from the nominee’s accountant (confirming that the  company is a going concern and will have the financial capacity to meet all its debts for at least the next three years);bank statements and other information in relation to business activities, that the nominator is actively and lawfully operating a motorcycle repair shop in Clayton, Victoria, Australia.

16.At the  time of their most recent sponsorship approval, the  applicant was operating in Australia so would not have met  regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor.

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

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

18.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.

19.In this case, r.5.19(3)(c)(i) is the relevant provision, the nominee was granted a Subclass 457 on 2 December 2014 to work in the nominated position as Motor cycle mechanic with the nominator.

20.At the hearing, Mr Idan provided details of the tasks carried out by the nominee in the position. The Tribunal is satisfied that the activities are consistent with the occupation of motor Mechanic.

21.The Tribunal has also had regard to payroll documents for the nominee including payroll activity statements for 2015 and 2016, tax assessment notices, bank statements from 2014 – 2017 for both the applicant and nominee that show that wage transfers were made to the nominee each week.

22.On the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the relevant position for at least 2 years in the 3 years before the nomination was made.

23.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)

24.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.

25.The Tribunal has the signed employment contract in respect of the nominee dated 2014. In addition, Mr Idan provided a letter confirming that the applicant’s employment is continuing and the terms and conditions of employment remain current and that applicant will provide full time employment for the nominee for a period of at least 2 years. The employment agreement states that the salary of the nominee will be $54,000 per annum plus 9.5% superannuation.

26.The Tribunal has had regard to the applicant’s financial capacity to employ the nominee. The applicant explained that the financial position of the business has recently been impacted (2018) by a decision to invest for the long term and acquire the property from which the business operates. This was evidenced by copies of the contract of sale of real estate, rates notice and certificate of title for the property.

27.The Tribunal is satisfied on the basis of the financial reports and materials provided, and the ability to maintain the nominee’s employment since 2014, that the applicant can provide employment to the nominee for a period of at least 2 years.

28.Given the above, the Tribunal is satisfied 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.

29.Accordingly, 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.The Tribunal was provided with an organisational chart. The applicant is a small, niche business. The chart shows that there is only one other employee who is an Australian citizen or permanent resident performing the same equivalent work in the same workplace at the same location as the nominee and that is the Director, Mr Idan. Financial records show that Mr Idan also receives a PAYG salary, which is less than that of the nominee (although he is provided with Director fees in addition to his base salary as may be commensurate with being the Director of the applicant).

32.At the hearing, the applicant provided the Tribunal a copy of an online advertisement for a motor cycle mechanic showing the current market salary range of $50,000 -$59,999 per year. The bank statements in relation to the activities of the applicant, bank statements of the nominee (2014 - 2017), and payroll statements show that the nominee’s salary is commensurate with the current market salary range, being $54,000 plus 9.5% superannuation.

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

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

34.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.

35.The applicant’s representative provided a written submission in relation to the applicant’s training obligations. The submission states:

“……..Under the Migration (Skilling Australians Fund) Charges Regulations 2018 the sponsor only becomes liable for the ‘nomination training contribution charge’, i.e. the SAF levy, when it makes a nomination application. The SAF levy is now prescribed in r. 5.42 of the Migration Regulations.

The applicant, Star Cycle’s most recent standard business sponsorship was approved on 20 June 2018, and therefore falls within the transitional provisions as described in the explanatory statement. The applicant therefore did not have any associated training obligations in its most recent approval as a standard business sponsor. ……….We ask that the Tribunal consider and adopt the position of the Tribunal differently constituted in the decision Ozzy Fortune Group Pty Ltd (Migration) [2019] AATA 735.1 The relevant part of the decision relating to r.5.19(3)(f) is at paragraphs 31-33.”

1. As the nominator’s most recent approval as a standard business sponsor was approved by the Department on 20 June 2018 for a period for five years, the Tribunal agrees that the requirements at the time of the most recent sponsorship approval did not include any training commitments that had to be fulfilled by the applicant.

2. Accordingly, the Tribunal agrees that as the sponsorship obligations to provide training do not apply in this case, in the circumstances, the Tribunal considers that the requirement’s relating to training by the  applicant have been satisfied.

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

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

39.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. 

40.The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) records and found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

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

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

42.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.

43.Mr Idan gave evidence at the hearing that the applicant has complied with all workplace relations laws. There is also no evidence before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff. 

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

Conclusion

45.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

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

S. Jones
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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.