THE DENTAL SOLUTION AUSTRALIA PTY LTD (Migration)

[2017] AATA 854

THE DENTAL SOLUTION AUSTRALIA PTY LTD (Migration) [2017] AATA 854 (30 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  THE DENTAL SOLUTION AUSTRALIA PTY LTD

CASE NUMBER:  1516391

DIBP REFERENCE(S):  BCC2015/1648874

MEMBER:Mary-Ann Cooper

DATE:30 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 30 May 2017 at 3:21pm

CATCHWORDS

Migration – Approval of nominated positions (employer nomination) – Temporary Residence Transition nomination stream – Nominee employed in full time position – Sufficient evidence that applicant has met training commitments and obligations

LEGISLATION

Migration Act 1958, ss 245AR, 140GB

Migration Regulations 1994, r 1.13A, r 1.13B, r 1.20DA, r 2.59(h), r 2.68(i), r 2.82, r 2.87B, r 5.19, Schedule 2, cl 457.223

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 20 November 2015 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 9 June 2015. 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 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)(c) or (f) of the Regulations because the evidence indicated that the nominee had not worked fulltime for the applicant for at least 2 of the 3 years immediately preceding the application and insufficient evidence of training expenditure had been provided for the most recent sponsorship approval period.

5. The applicant, represented by its director, appeared before the Tribunal on 2 March 2017 to give evidence and present arguments.

6. The applicant was represented in relation to the review by its registered migration agent who did not attend the hearing.

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. Documents on the Department’s file confirm that the application was made on the appropriate form and was accompanied by the prescribed fee. It was therefore made in accordance with r.5.19(2) and the Tribunal finds the requirements of r.5.19(3)(a)(i) are met.

11. The application for approval identifies the nominee who, according to Departmental records, has held a Subclass 457 visa since 5 December 2012 which was granted on the basis of satisfying subclause 457.223(4) of Schedule 2. The Tribunal finds the requirements of r.5.19(3)(a)(ii) are met.

12. The occupation identified in the visa application is Dental Technician (ANZSCO code 411213) and is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is therefore satisfied that this occupation carries the same 4-digit occupation unit group code (4112) as the occupation carried out by the nominee as the holder of a Subclass 457 visa. 

13. The Tribunal therefore finds that the applicant meets r.5.19(3)(a)(iii).

14. As the application was made before 14 December 2015, certification regarding s.245AR(1) is not required.

15. Given the above findings, the requirements in r.5.19(3)(a) are met.

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

16. 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 have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

17. The Department’s records confirm that the applicant was most recently approved as a standard business sponsor from 1 February 2017 to 1 February 2022 and is the standard business sponsor who last identified the nominee (the holder of the subclass 457 visa) in a nomination under s140GB of the Act. The tribunal is also satisfied on the basis of documentation on the Department and tribunal files that it 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). Therefore the requirements of r.5.19(3)(b)(i) and (iii) are met.

18. Documents on the Department’s file and as provided to the tribunal further demonstrate that the applicant is registered with the relevant authorities, and retains an active Australian Business Number (ABN) status and ongoing registration for Goods and Services Tax (GST).

19. Further documents on file and as later provided to the tribunal, such as profit and loss statements and BAS statements, confirm the applicant’s ongoing business activity and the tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia: r.5.19(3)(b)(ii).

20. Given the above, the requirements in r.5.19(3)(b) are met.

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

21. 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.

22. As noted above, one of the bases on which the delegate refused the nomination was that the applicant had not established that it had employed the nominee fulltime through two of the previous three years. This was because the PAYG summary provided for the 2013/2014 financial year indicated he had received only a part-time salary. The 2014/15 PAYG summary demonstrated fulltime employment.

23. Prior to the hearing the applicant provided a PAYG Summary for the same year, 2013/14 which indicated that the applicant had been paid a fulltime wage. At the hearing the applicant’s director explained that the business had been transferring its software from one system to another and the error had occurred in this process. The tribunal was not satisfied as to the authenticity of this information and the applicant’s representative undertook to provide the nominee’s ATO Notice of Assessment for the relevant period. On 23 May 2017 the tribunal received the notice of assessment which demonstrated that the visa applicant had been paid a fulltime salary in 2013/14 financial year, consistently with the second PAYG summary supplied.

24. The tribunal is therefore satisfied that the nominee has been employed full time in Australia as a Dental Technician, on a subclass 457 visa, in the nominating business, for at least 2 years in the 3 year period immediately before this nomination application was made on 9 June 2015: r.5.19(3)(c)(i).

25. Given the above findings, the requirements in r.5.19(3)(c) are met.

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

26. 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.

27. The applicant’s director confirmed at the hearing that the employment contract provided to the Department with this application, and as also provided to the tribunal, still applied to the nominated position. The tribunal noted that the contract was signed in 2012 and offered a 4-year position as Dental technician. As discussed with the applicant’s director, this tended to indicate that the position was not ongoing. On that basis, the tribunal could not be satisfied that the employment would be fulltime for at least 2 years. A later contract was provided which did not expressly preclude the possibility of an extension of the nominee’s employment.

28. In addition, based on the financial documentation provided which demonstrated substantial business revenue and net assets, the tribunal is satisfied that the business can sustain the position fulltime for at least 2 years.

29. For the above reasons, the tribunal is satisfied that the applicant meets r.5.19(3)(d).

    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. Submissions made prior to the hearing stated that there was an Australian permanent resident performing equivalent work in the same workplace at the same location. A copy of that employee’s contract and his subclass 186 visa grant on 25 January 2017 was supplied.

32. At the hearing however the applicant’s director claimed that there was no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. On this basis, the tribunal discussed the legislative requirements regarding the need to examine the nominee’s terms and conditions against what would be provided to an Australian citizen or permanent resident. Documents were later supplied in this respect however they have raised further issues of concern regarding the minimum terms and conditions that were applied to the nominated position.

33. In this context the tribunal notes that the contemporaneous training materials later provided, as discussed below, indicate that the aforementioned ‘equivalent’ employee is still at the workplace and is working in the same occupation as this nominee.

34. On this basis, having compared the relevant documents and terms and conditions, the tribunal is satisfied that the terms and conditions of the nominated position are no less favourable than those that are provided to an Australian permanent resident who is performing equivalent work at the same workplace.

35. Therefore the requirements in r.5.19(3)(e) are met.

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

36. 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.

37. The tribunal notes that, for businesses operating for more than 12 months that are required to satisfy the training benchmarks, Departmental guidelines (PAM3) note that if a nominator cannot demonstrate that they maintained the relevant level of training expenditure throughout the validity of their standard business sponsorship they cannot satisfy the requirements of the Temporary Residence Transition stream and may need to consider using the Direct Entry stream.[1]

    [1] PAM3: Migration Regulations – Division 5.3 - General > Reg 5.19 - Approval of nominated positions (employer nomination) > The nominator has met the training requirement > The training benchmarks (reissued on 19/05/2016).

38. The relevant training benchmarks are specified in IMMI 13/030, which provide for the following alternatives:

    A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry-training fund, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor. 

    OR

    B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor.

39. In order to assess whether the applicant has complied with applicable obligations relating to training expenditure during the period of its most recent sponsorship approval (1 February 2017 to date), the Tribunal required details of the applicant’s payroll over the relevant period and training expenditure. Notwithstanding the extensive documentation provided regarding the prior period, it did not cover the period of the most recent sponsorship approval.

40. The tribunal notes the agent’s objection that “according to the legislation the company has a fiscal year in which to spend the 1% of payroll.” In the context of this application, the legislation requires a consideration of expenditure during the most recent sponsorship approval period, which commenced in February 2017. The tribunal does not propose to wait until the end of the next financial year for further documentation and to make its decision.

41. Later records provided to the tribunal demonstrated external and internal training expenditure in excess of 1%.

42. On this basis, the tribunal is therefore satisfied that the applicant has complied with applicable obligations relating to training requirements, during the period of its most recent sponsorship approval.

43. In addition to the obligations imposed by r.2.87B, if the nominator was lawfully operating a business in Australia at the time of the standard business sponsorship or variation approval, all records showing that the person has complied with requirements relating to the training obligation in 2.87B must be kept in accordance with a separate record keeping obligation (r.2.82). As noted above, the applicant has provided the relevant records.

44. For the above reasons, the tribunal is satisfied that the applicant has complied with its obligations under Division 2.19 relating to its training requirements during the period of its most recent approval as a standard business sponsor: r.5.19(3)(f)(i).

45. Accordingly, the requirements of r.5.19(3)(f) are met.

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

46. 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.

47. There is nothing before the tribunal to indicate there is any adverse information known to Immigration about the nominator or persons associated with the nominator.

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

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

49. 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.

50. At the hearing, the applicant’s representative denied any relevant non-compliance. There is nothing before the tribunal to indicate the applicant does not have a satisfactory record of compliance with the relevant workplace relations laws.

51. Accordingly, the requirements in r.5.19(3)(h) are met.

52. It follows that the applicant meets all the requirements of r.5.19(3).

    CONCLUSION

53. 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

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

    Mary-Ann Cooper
    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

    (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.