Studynet Pty Ltd (Migration)

[2024] AATA 1593

Studynet Pty Ltd (Migration) [2024] AATA 1593 (26 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Studynet Pty Ltd

REPRESENTATIVE:  Mr Usman Ali

CASE NUMBER:  1906211

HOME AFFAIRS REFERENCE(S):          BCC2015/3924893

MEMBER:De-Anne Kelly

DATE:26 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 26 April 2024 at 1:15pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream – Customer Service Manager – application is compliant – no adverse information –no less favourable terms and condition of employment – satisfactory compliance with workplace relations laws – decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359
Migration Regulations 1994, rr 1.03, 2.72, 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 5 March 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 17 December 2015. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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 reg 5.19(3)(d)(i) and 5.19(3)(f)(i) (A) of the Regulations because the applicant failed to demonstrate the financial capacity such that the person will be employed on full-time basis in the position or at least two years and the applicant did not meet the Training benchmarks A or B for the applicable 457 sponsorship periods.

5. The applicant appeared before the Tribunal on 6 February 2024 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.

6. The applicant was represented in relation to the review by Mr Usman Ali and barrister Mr Lorenzo Boccabella.

   For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   Adjournment

7. An adjournment was requested and granted and extended to some 45 minutes at applicant request.

8. Extensions of time were given for 28 days to provide submissions and then a further 7 days and then 14 days following a s359A invitation to comment on adverse information.

   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 reg 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. On 17 December 2015 the applicant lodged an Employer Nomination Scheme – visa subclass 186 application in the employer nomination application Subclass 186 visa in the Temporary Residence Transition stream for the position of Customer Service Manager on $52,200 per annum to be employed in the Sydney CBD in favour of Mr Mohammed HOSSAIN DOB 1 January 1985.

11. The director is Ms Shamina Anwar, the spouse of the nominee. She gave an overview of their business which recruits international students to undertake studies in Australia. They have an office in Sydney and Melbourne and employ 26 staff.

    The application must be compliant: reg 5.19(3)(a)

12. 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.

13. The application identified an occupation, namely Customer Service Manager and identified the relevant person as Mohammed HOSSAIN. The applicant was on the appropriate internet form, included the applicable fee and a written certification.

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

    Status of the nominator: reg 5.19(3)(b)

15. 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.

16. Studynet Pty Ltd was the standard business sponsor who identified Mohammed HOSSAIN as the holder of a Subclass 457 visa in a nomination made under s.140GB of the Act. The sponsor is actively and lawfully operating a business in Australia as evidenced by tax returns and financial statements prepared by their certified practising accountant. The most recent business sponsorship was not granted on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

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

    Previous employment of the nominee: reg 5.19(3)(c)

18. Broadly speaking, to meet the requirement in reg 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. The employer nomination was lodged on 17 December 2015 so to comply with the instrument the relevant periods in which 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 would be as follows, 17 December 2012 to 16 December 2015. It is noted that the applicant has been working in the position of Customer Service Manager since March 2013 on a 457 visa and evidence was provided that the applicant had been paid the salary associated with full-time employment over the relevant intervals.

20. Given the above findings, the requirement in reg 5.19(3)(c) is met.

    Future employment of the visa holder: reg 5.19(3)(d)

21. Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full-time basis in the position for at least 2 years on terms that do not expressly preclude the possibility of an extension.

22. The Tribunal put to the applicant in the hearing that in FY 2021 a profit of $309,170 was made and in FY 2022 a loss of $452,863 was realised which would have overwhelmed the previous profits. There was also a debt to the Australian Tax Office ATO of $293,546. Evidence was provided that in FY 2023 the profit of the applicant was $538,387. The Tribunal put to the applicant under s 359A that it appeared a key expenditure of Student fees paid had been excluded from the FY 2023 accounts. Evidence was provided by the accountant that this key expenditure had been absorbed into another expenditure line item being fees and charges. This was consistent with the figures shown on previous financial statements.

23. The applicant provided evidence that they have entered into a repayment plan with the ATO and have made payments in line with their plan. They have also submitted through their accountant that they have substantial monies on hand in bank accounts to meet their obligations.

24. Given the above findings, the requirement in reg 5.19(3)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(3)(e)

    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.

25. The nominee has been paid amounts from $51,508 in FY 2015 to $54,502 in FY 2023 but to meet 5.19(3)(e) the applicant has a new employment contract 24 July 2023 increasing the salary to $75,000 per annum however this is a jump of $20,498 in salary or a pay rise of 38%. When asked by the Tribunal as to why the increase was delayed for so long it was posited that COVID affected the business, and they had financial difficulties, so the salary was not increased until recently.

26. The new salary is commensurate with the position of Customer Service Manager

27. Accordingly, the requirement in reg 5.19(3)(e) is met.

    Training commitments and obligations: reg 5.19(3)(f)

28. IMMI17/075 Repeal of training Requirements commenced on 1 July 2017 but up until that time IMMI13/030 was in force.

29. 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.

30. An SBS approval was made in 2023 and as such the new training requirements in reg 5.19(3)(f) are met as the Skilling Australia Fund SAF was brought in to cover training expenditure.

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

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

32. 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 regs 1.13A and 1.13B.

33. The Tribunal has no evidence of adverse information about the director, or anyone associated with the director.

34. Accordingly, the requirement in reg 5.19(3)(g) is met.

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

35. 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.

36. The Tribunal has no evidence of unsatisfactory compliance with workplace relations laws.

37. Accordingly, the requirement in reg 5.19(3)(h) is met.

38. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    De-Anne Kelly
    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.