The Trustee For J L B Camilleri Family Trust (Migration)

[2018] AATA 4119

The Trustee For J L B Camilleri Family Trust (Migration) [2018] AATA 4119 (30 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee For J L B Camilleri Family Trust

CASE NUMBER:  1707719

DIBP REFERENCE(S):  BCC2016/2769226

MEMBER:Warren Stooke AM

DATE:30 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 August 2018 at 11:48am

CATCHWORDS
MIGRATION – Employer nomination – approval of nomination – need for the position – financial capacity to support engagement – exceptional skill – shortage of skills in industry – employment contract – remuneration – evidence of training requirements – construction drawings – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 245AR
Migration Regulations 1994 (Cth), r 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 22 March 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 21 August 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).

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(4)(a)(ii) of the Regulations because the delegate did not find a need for the position in the business.

5. The applicant appeared before the Tribunal on 7 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Singh, the nominee for the position. 

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

7. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

8. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 22 March 2017 and that he understood the content of the decision. The applicant was aware of the reasons for the delegate’s refusal of the application.

9. 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

10. 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)

11. 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.

12. The application for approval was made on 21 August 2016 on the appropriate Departmental Form 1395 (Internet) and the accompanying fee was paid by the applicant at the time of lodgement.

13. On the basis of the information provided in both the Departmental and the Tribunal’s files, there is no evidence before the Tribunal that s.245AR(1) has not been complied with.

14. The applicant, in evidence, provided the Tribunal with an overview of the business that trades as Sunshine Trailers Vic Pty Ltd. In essence, the business builds all sorts of trailers of varying sizes and toolboxes to customised orders. The trade group consists of metal fabricators and welders who are competent in the use of Oxy/Acetylene and MIG welding techniques on both new work and the undertaking of repairs.

15. The applicant stated that the business operates in both the wholesale and retail engineering sectors with the fabrication of trailers and toolboxes and the business also has a site based ‘new shop’, with displays.

16. The applicant is a Director of the company, who acquired the business from the former owner. He also advised that he used to be employed as a fabricator and has trade qualifications, as a welder. He stated that he employs eight employees in the workshop, where four of the employees are welder/fabricators, one is a painter and the other three are engaged in management and finance.[Tribunal Folio 65]

17. The applicant gave evidence that the business had a total income of $663,055 in the financial year 2017 and total expenses of $647,829. This rendered a net profit of $15,227 after the payment of wages of $229,083 (including payment of wages to the nominee of $60,000) and director’s emoluments of $129,040. On this basis, the Tribunal is satisfied that the business has the financial capacity to support the engagement of the nominee in the proposed position.

18. Further, evidence was provided by the applicant and Mr Singh, that Mr Singh had worked for the business since 12 September 2010 as a welder/fabricator and that he had exceptional skill in building trailers and toolboxs to custom requirements. The Tribunal accepts the evidence of the applicant that there is a genuine need for the position, which constitutes part of the core trade skill in an industry that has an identifiable shortage of skills.

19. 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)

20. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia. The applicant provided the Tribunal with evidence that Sunshine Trailers Vic Pty Ltd is a registered business with an ABN 32 749 501 172 and was registered on 29 May 2017. Further, an ASIC registration certificate (Tribunal Folio 35) confirms registration from 29 May 2017 with a review scheduled for 29 May 2020, which has been provided to the Tribunal.

21. The Tribunal is not aware of any information, at the time of decision, which would indicate that the nominator is not actively and lawfully operating a business in Australia.

22. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

23. 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.

24. The Tribunal is satisfied that all the employees engaged in the business are direct employees with employment contracts with Sunshine Trailers Vic Pty Ltd.

25. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

26. 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.

27. The applicant gave evidence that the nominee was subject to a contract of employment that would be in place for a period exceeding 2 years, with the current employment contract that commenced on 12 September 2010 (following a transfer of business) and a confirmed contract of employment of 9 August 2016. This contract stipulates that it will commence on the date of approval of the visa from the Immigration Department, with a salary of $60,070.40 per annum and a duration of 3 years.[Department File Folio 10-13]

28. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

29. 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.

30. The applicant in the written submissions prior to the hearing provided the Tribunal with the following documents, which confirmed that award and statutory obligations under the provisions of the Fair Work Act 2009 are being complied with:

    ·A copy of the employment contract [Department File Folio 10-13];

    ·ATO Tax Assessment for 2016 and 2017 (Tribunal Folios 58 and 59]

31. Further, the applicant gave evidence that superannuation payments are contributed into Cbus in accordance with Superannuation Guarantee.

32. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

33. 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. 

34. The Tribunal has reviewed the Department’s records, including its electronic records as contained in its Integrated Client Services Environment (ICSE) and is satisfied that they do not disclose any adverse information known to the Tribunal about the nominator or person associated with the nominator.

35. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

36. 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.

37. The applicant gave evidence that the underpinning award covering the nominee’s occupation is the Manufacturing and Associated Industries Award 2010 and that at the time of engagement the nominee was provided with an employment statement as required under the provisions of the Fair Work Act 2009.[Tribunal Folio 98]

38. The nominee is paid a wage that exceeds the minimum rate of pay provided under the award and a base salary of $60,070.40 per annum is paid to the nominee, exclusive of superannuation as per the obligation of the contract of employment [Tribunal Folio 58 and 59]. The Tribunal, following a review of the submitted material, which was provided prior to the hearing and the evidence at hearing has verified the remuneration paid to the nominee, including superannuation contributions, which are paid into Cbus.

39. The applicant gave evidence that the nominee has been granted 4 weeks annual leave in accordance with the Fair Work Act 2009.

40. 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)

41. 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 (see legislative instrument IMMI 18/049), 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.

42. The Tribunal is satisfied that the skills applied by the nominee with Sunshine Trailers Vic Pty Ltd in its provision of custom built trailers and toolboxes, conform with the following skills identified in ANZSCO 323213:

    “UNIT GROUP 3232 METAL FITTERS AND MACHINISTS

    
    METAL FITTERS AND MACHINISTS fit and assemble fabricated metal parts into products, set up machining tools, production machines and textile machines, and operate machining tools and machines to shape metal stock and castings.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    a.studying drawings and specifications to determine suitable material, method and sequence of operations, and machine settings

    b.fitting fabricated metal parts into products and assembling metal parts and subassemblies to produce machines and equipment

    c.checking fabricated and assembled metal parts for accuracy, clearance and fit using precision measuring instruments

    d.setting guides, stops and other controls on machining tools, setting up prescribed cutting and shaping tools and dies in machines and presses, and setting controls for textile machines

    e.forming metal stock and castings to fine tolerances using machining tools to press, cut, grind, plane, bore and drill metal

    f.cutting, threading, bending and installing hydraulic and pneumatic pipes and lines

    g.preparing pattern mechanisms to control the operation of textile machines used to spin, weave, knit, sew and tuft fabric

    h.diagnosing faults and performing operational maintenance of machines, and overhauling and repairing mechanical parts and fluid power equipment

    i.may erect machines and equipment on-site.

    323213 FITTER-WELDER

    Fits, assembles and welds metal parts and subassemblies to fabricate production machines and other equipment.

    Skill Level: 3”

43. The Tribunal is satisfied that the nominator meets the training requirements and produced evidence of the payment of $6,740 to Kangan Institute [Tribunal Folio 96].

44. The organisational chart provided by the applicant demonstrates that the nominated position will work under the direct control of the applicant. [Tribunal Folio 65]

45. Detailed drawings used in construction and photographic documentation was provided to the Tribunal to demonstrate the scope of technical fabrication involved in the application of skill, which the Tribunal accepts as indicative of the genuineness of the nominated position. [Tribunal 61-70]

46. Accordingly the requirements of r.5.19(4)(h) are met.

47. 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

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

    Warren Stooke AM
    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).