SWAN FABRICATORS (WA) PTY LTD (Migration)

SWAN FABRICATORS (WA) PTY LTD (Migration) [2019] AATA 507 (19 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SWAN FABRICATORS (WA) PTY LTD
CASE NUMBER:  1617553
DIBP REFERENCE(S):  BCC2016/289254
MEMBER:Karen McNamara
DATE:19 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 19 February 2019 at 11:09am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Welder (First Class) – genuine need – financial capacity – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 October 2016 to reject the application by Swan Fabricators (WA) Pty Ltd (the applicant) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 20 January 2016. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) (d) of the regulations because the delegate was not satisfied that the applicant is able to provide the nominee with fulltime employment for at least two years.
Background
The applicant lodged an application for an employer nomination approval, for the position of Welder (First Class) – ANZSCO 322313 under the Regional Sponsored Migration Direct Entry stream. The proposed salary is $54,340 plus superannuation with guaranteed annual earnings of $59,502.
When considering the application the delegate took into consideration the following issues;
·The business did not submit financial statements indicating the income, expenses and wage expenditure of the business. The applicant did not provide the financial documentation such as business activity statements and bank statements to demonstrate the financial position of the business.
·On 10 October 2016, the delegate found based on the evidence presented, the business did not provide sufficient information to demonstrate the financial capacity to pay the full time salary for the nominated position for at least two years. Therefore, the business had not demonstrated that the appointment will provide the employee with full-time employment for at least two years.
The applicant applied to the Tribunal on 22 October 2016 for review of the delegate’s decision.

Information to the Tribunal

On the 7 January 2019, the Tribunal wrote to the applicant pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicant provide updated and current information that would assist to determine whether the criteria in r. 5.19(2) & (4) of the Regulations were met.
In response to this request the following information was provided to the Tribunal on 19 January 2019;
·ASIC current and historical company extract
·Financial Report Optima Partners 30 June 2018
·BAS - July 2016 to June 2017
·BAS - July 2017 to August 2018
·Company tax return financial year 2017
·Company tax return financial year 2018
·Financial Report Optima Partners 30 June 2017
·Organisation chart
·Position description / contract of employment dated 16 January 2019 - Mr Cho
·Training contract - Mr Ethan Bignell 1 February 2018
·Extract of apprenticeship/traineeship training contract - Mr Steven Allbeury
·Payroll activity summary 1 January 2018 to 31 December 2018
On 20 January 2019, the Tribunal received a copy of passport pages for Mr Ethan Bignell and Mr Steven Allbeury.
On 31 January 2019, the Tribunal received a written submission from the applicant dated 26 January 2019 and a letter from Optima Partners (the applicant’s accountant) dated 15 January 2019.
At the hearing, the Tribunal requested that the applicant provide financial documentation including evidence to support the company’s salary and wage expense for 2017 and 2018 financial years, PAYG and corresponding Notice of Assessment’ s issued to Mr Cho for the duration of his employment with the applicant, payslips from January 2018 to January 2019, extract from company bank statement showing direct transfer of salary to Mr Cho since January 2018 to February 2019, Mr Cho’s bank statements for corresponding period showing deposit of wages and evidence of Mr Cho being paid superannuation.
The Tribunal received the following documents on 15 February 2019;
·PAYG summaries issued to Mr Cho financial years 2013, 2014, 2015, 2016, 2017 and 2018.
·Mr Cho’s payslips from January 2018 to February 2019
·Company bank account statements January 2018 to February 2019
·Signed Form 245AR Certification.
·Notice of Assessments Mr Cho 2013, 2014, 2015, 2016, 2017 and 2018
·Personal bank statements – Mr Cho - May 2018 to January 2019
·Superannuation Annual Statement - Mr Cho - 2017/2018.
The applicant, represented by Mr Geoff Hodges, appeared before the Tribunal by video conference on 12 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Hyunchang Cho who provided evidence of his employment with the applicant.
The applicant was represented in relation to the review by its registered migration agent.
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
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also includes a written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly the requirements of r.5.19(4)(a)(i) are met.
In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Messrs Geoff Hodges and Huanchang Cho.
The Tribunal accepts on the evidence before it that the nominator operates a steel fabrication business in Kewdale Western Australia. The business reported an annual turnover for the 2017/18 financial year of $2,974,648 with net assets of $165,743 and total salary and wage expense $1,060,222.
ASIC records provided by the applicant to the Tribunal show that the buisness was registered on 1 July 2008.
Mr Hodges told the Tribunal that he has owned the business since 2008 and currently employs approximately 18 to 22 staff.
The applicant told the Tribunal of his frustration in attracting and retaining suitable and experienced staff due to the mining boom in WA, which saw many experienced workers, take up employment with the mines. Prior to employing Mr Cho, the position of Welder had been filled on three separate occasions by persons who proved to be unreliable and unsuitable for the job. Mr Hodges told the Tribunal that he has attempted to source suitably experienced Australian citizens and permanent residents for the position and has advertised the position on numerous occasions.
On the totality of evidence before it, the Tribunal is satisfied that the application has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. Accordingly, the requirement in r.5.19(4)(a) (ii) are met.
As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires the applicant is actively, lawfully and directly operating a business in Australia.
Based on the material provided to the Tribunal, including, financial statements, Business Activity Statements, ASIC Company details, payroll advice and evidence from Mr Hodges about the operations of the business, the Tribunal is satisfied the applicant is actively and lawfully operating a steel fabrication business in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence before the Tribunal to suggest that the applicant’s business is involved in labour hire.
Accordingly, the requirement in r.5.19(4)(c) does not apply.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal has had regard to the contract for employment for the nominee dated 27 October 2015. The contract, which sets out the terms and conditions of employment, indicate that the period of employment is two years upon the granting of a subclass 187 visa. At the hearing, the applicant advised the Tribunal that he would employ Mr Cho indefinitely for as long as Mr Cho wished to stay in his employ. The contract stipulates the base salary is $54,340 with hours of work 38 per week. The nominee is to be paid 9.5% superannuation and reasonable travel expenses incurred for conducting company business. Leave entitlements are in accordance with those stipulated by Fair Work Australia. There is no term excluding an extension of the contract. The Tribunal has had regard to the business’ financial documentation and ATO BAS statements and Mr Cho’s ATO Notices of Assessment, payslips and bank statements. On the basis of this material, the Tribunal is satisfied that the applicant has the financial capacity to maintain the nominee’s employment as they have done since May 2012. Accordingly, the requirement in r.5.19(4)(d)(i) is met.
The Tribunal is also satisfied based on the employment contract and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment. The contract stipulates that the position is full time commencing on approval of the nominee’s visa and will continue until terminated in accordance with the agreement. Accordingly, the requirement in r.5.19(4)(ii) is met.
As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(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.
The contract of employment dated 27 October 2015, sets out the terms and conditions of employment and indicates that the nominee’s salary is $54,340 per annum excluding superannuation. The Tribunal has received payslips and bank statements confirming that Mr Cho is being paid $54,340 per annum. The Tribunal is satisfied the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the 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 same location.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) 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.
There is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires 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.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)
Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:
·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in an instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or
·the position and nominator’s business is located in regional Australia, there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation and that a regional certifying body has advised the Minister about certain matters relating to the position.
In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;
The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Kewdale, postcode 6105 which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal next considered whether there is a genuine need for the applicant to employ a Welder (First Class) and for the tasks of that position. The evidence before the Tribunal indicates the applicant is the owner of a steel fabrication business in Kewdale Western Australia. Mr Hodges gave evidence at the hearing that he purchased the business in 2008 and has a turnover of approximately $3.5 million p.a. This amount fluctuates pending the cyclic nature of the Mining Industry, to which the business relies on orders. To meet organisational requirements Mr Hodges told the Tribunal that he requires a fulltime Welder (First Class) to complement his existing workforce of three other Welders.
The nominee, Mr Cho initially worked part time with the applicant and commenced working full time approximately in 2014. The Tribunal has considered evidence supporting the nominee’s suitability in so far as his experience and qualifications for the position. The Tribunal has sighted Mr Cho’s trade certificates and academic transcripts which confirm that he holds a Certificate II in Engineering Production Technology and Certificate III in Engineering Fabrication Trade. At the hearing Mr Cho told the Tribunal that he had worked as a Welder in Korea. Mr Hodges told the Tribunal that Mr Cho is competent and has eye for detail in conducting his work as a Welder and has satisfactorily completed and passed internal tests and qualifications. The Tribunal has considered the evidence attesting to Mr Cho’s experience and is satisfied that Mr Cho has worked as a Welder and is suitably qualified for the position.
The Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Welder (First Class) under the nominator’s control. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph. Furthermore, the Tribunal is satisfied that the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly the requirements of r.5.19(4)(h)(ii) (B) and (D) and (DA) are met.
The Tribunal is satisfied that the material and evidence provided supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or permanent resident. The applicant provided evidence that he has been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the positon. The applicant advised the Tribunal that he advertised the position on at least three occasions and did not find suitable applicants.
The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.
The Tribunal has cited the completed Form 1404 dated 2 March 2016 from the relevant RCB, Skilled Migration WA, Department of Training and Workforce Development, indicating that they are satisfied regarding the matters specified in paragraph (e) and sub subparagraphs (B) and (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.
Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(ii) are met and accordingly r.5.19(4)(h) is met as a whole.
Conclusion
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

The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Karen McNamara
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.
…
Direct Entry nomination
(4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is actively and lawfully operating a business in Australia; and
(ii)      directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i)       the employee will be employed on a full-time basis in the position for at least 2 years;
(ii)      the terms and conditions of the employee’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)       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
(g)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
(h)either:
(i)       both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii)      all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

[2019] AATA 507

19 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal