Systems and People Pty Ltd (Migration) - [2021] AATA 2458

Systems and People Pty Ltd (Migration) [2021] AATA 2458 (30 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Systems and People Pty Ltd
CASE NUMBER:  1819491
HOME AFFAIRS REFERENCE(S):          BCC2017/4658934
MEMBER:Sean Baker
DATE:30 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 30 June 2021 at 1:48pm

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 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).
The applicant applied for approval on 7 December 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).
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)(a)(ii) of the Regulations because the delegate found the application for approval had not identified a need for the nominator to employ a paid employee to work in the full time position under the nominator’s direct control
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
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 an identified person as a paid employee to work in the position under their direct control.
Having regard to the Department file, the application was made on the approved form accompanied by the prescribed fee. The application form includes a written certification stating that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Systems and People Pty Ltd (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] AATA 2458
Decision Date: 30 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision concerning the approval of a nomination under the Direct Entry stream. The applicant, Systems and People Pty Ltd, sought approval for a nomination for the position of Computer Network and Systems Engineer. The Tribunal was tasked with determining whether the applicant met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of this nomination.

The legal issues before the Tribunal included whether the application was made in the approved form, whether the nominator was actively and lawfully operating a business in Australia, and whether there was a genuine need for the nominee to be employed in the nominated position. Additionally, the Tribunal had to consider if the tasks of the position corresponded to an occupation specified by the Minister, if the occupation was applicable to the nominee, and if the terms and conditions of employment were no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work. The Tribunal also examined whether there was any adverse information known to Immigration and whether the nominator had a satisfactory record of compliance with workplace relations laws.

The Tribunal reasoned that the application met the formal requirements, including the prescribed fee and certification. It found that Systems and People Pty Ltd was actively and lawfully operating as part of a larger corporate group providing recruitment and consulting services, supported by financial reports and ASIC searches. The Tribunal was satisfied that there was a genuine need for the nominee, whose skills were crucial for delivering business services to key clients and maintaining the company's reputation. The tasks of the position were found to correspond to the ANZSCO occupation of Computer Network and Systems Engineer, and no inapplicability provisions were identified. Furthermore, the Tribunal found no adverse information known to Immigration and no indication of non-compliance with workplace relations laws.

Consequently, the Tribunal concluded that the applicant met all the requirements of regulation 5.19(4). The decision under review was set aside, and a substituted decision approving the nomination was made.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 an identified person as a paid employee to work in the position under their direct control. Having regard to the Department file, the application was made on the approved form accompanied by the prescribed fee. The application form includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1). The application to the Department was accompanied by an employment contract between the nominator and nominee, and a business organisation chart including the nominee. On this basis I consider that the applicant identified a need to employ the nominee as a paid employee in the position under their direct control. I have considered the genuineness of that identified need further below. Accordingly, the requirement in r.5.19(4)(a) is met. Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b) Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. I have had regard to the material on the Department and Tribunal files. I have had regard to the searches of ASIC and the ABN register conducted last month by the Tribunal to find that the applicant is actively and lawfully operating. I have also taken into account the Business Activity Statements and the annual reports of the Consolidated Publicly Listed entity PS&C Ltd, now known as Future First Technologies Ltd as well as the explanatory statement from the parent company’s CFO regarding tax returns and the consolidated group’s tax obligations. Having read this material and searched further online, I accept that the applicant is part of a group of companies and that Systems and People is engaged in recruitment and consulting services to unrelated businesses primarily in the provision of SAP and other business optimization software which supports businesses in their timesheet, payroll, invoicing etc functions. Having regard to the annual report I accept the submission that the applicant is wholly owned by Future First Technologies Ltd, trading as PS&C Group, a publicly listed company on the ASX, the revenue of which exceeded $50M in the most recent financial year.

Decision

Reasons for decision

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.Sean BakerMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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) all 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;(AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;(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 the person identified under subparagraph (a)(ii), as 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).

Ratio Decidendi

Legal Principle Established

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 adverse information known to the Department about the nominator or a person ‘associated with’ the nominator before me. 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 information before me to suggest 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. 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 in this case 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 (see legislative instrument IMMI 17/080), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met. Having regard to the information on the Department and Tribunal files, I find that the tasks to be performed in the position will be performed in Melbourne, Australia. Those tasks as set out in the position description and the samples of work correspond to the tasks in ANZSCO of a computer network and systems engineer, 263111 which is specified in legislative instrument IMMI 17/080. There are no inapplicability provisions. The submission provided to the Tribunal states that under the supervision of the client director, the nominee is responsible for performing tasks and projects related to the consulting strategies. The submission sets out these responsibilities in more detail. The submission goes on to state that:The duties to be performed by the nominated person in this position are crucial to the efficient operation of Systems and People. The position is mid-level position in the organisation hierarchy, so the Nominee’s particular skills and qualification will ensure the efficient delivery of the business services to key clients such as the National Australian Bank (NAB) amongst others.The Nominee’s experience is needed by the company to ensure that they maintain their reputation as the leading recruitment and consulting professionals in Melbourne as well as attracting new clients. Employing an experienced consultant with relevant experience for the nominated position ensures that the company continues to provide their services successfully.