Toscana (WA) PTY LTD (Migration)

Toscana (WA) PTY LTD (Migration) [2018] AATA 3503 (25 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Toscana (WA) PTY LTD
CASE NUMBER:  1710381
DIBP REFERENCE(S):  BCC2016/3598633
MEMBER:Denise Connolly
DATE:25 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 25 July 2018 at 11:31am

CATCHWORDS
Migration – Employer Nomination – Approval of nomination – Demonstrate financial capacity –Financial statements – Contract of employment – Base salary –Training requirements – In-house training program – Past obligation fulfilled – Previously barred as a sponsor – Previous approval as standard business sponsor – 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 April 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).
The applicant applied for approval on 28 October 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 Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the applicant had not provided financial documentation to demonstrate that it had the financial capacity to provide the terms and conditions of the proposed employment. The delegate also found the applicant did not satisfy r.5.19(3)(f)(i)(A) because the evidence provided by the applicant indicated it had not met its commitments made in relation to training requirements.
The applicant appeared before the Tribunal on 1 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Manuel Gosselke.
The applicant was represented in relation to the review by its registered migration agent who, also attended the hearing.
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 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.
When making the application the applicant gave the following information. It nominated the position Mixed Crop and Livestock Farmer. The nominee, Manuel Gosselke (DOB 4 January 1987), is to be employed in Pinjarra, 6208. The applicant employs other employees who receive a base salary of $54,000 for the same work as the nominated person. The nominee is to be employed under an individual work contract on a base salary of $60,000.
The applicant stated it employs 26 Australian employees and 17 foreign employees. It claims its gross payroll expenditure in the previous 12 months was $2,100,000 and that it had spent $15,537 on training Australian citizens/permanent residents. (The Tribunal notes this did not include wages paid to an apprentice.)
The applicant did not provide any documentation with the application, except for the contract of employment, dated 28 October 2016, between the applicant and the nominee. It states the nominee will receive a base salary of $60,000 but only 9.25% superannuation (this was subsequently amended by the applicant and the superannuation is now 9.5%).
The delegate was not satisfied the applicant had provided financial documentation to demonstrate that it had the financial capacity to provide the terms and conditions of the proposed employment. The delegate found the applicant did not meet r.5.19(3)(d)(i) of the Regulations. It requires that the person who held one or more Subclass 457 visas, and was employed in the position in respect of which the person held the Subclass 457 visa for at least 2 years, will be employed on a full-time basis in the position for at least 2 years. The delegate also found that the applicant had not provided evidence that it had fulfilled its commitments in relation to meeting the training requirements during the period of their most recent approval as a standard business sponsor (at the time the applicant was most recently approved on 24 October 2014). The delegate also found r.5.19(3)(f)(i)(A) was not met.
At the time of making the review application the applicant provided to the Tribunal a copy of the delegate’s decision record. No other evidence was provided.
Prior to the hearing the applicant provided the Tribunal with further information including the following:
·written submission from the representative
·the letter of support dated 2 March 2018 from the applicant’s accountant who has formed the opinion based on the information before him that the company has the financial capacity to employ a person in the position of landscape gardener on a full-time basis at a market rate of $56,730 plus superannuation for at least the next 4 years; and another person in the position of fibrous plasterer on a full-time basis at a market rate of $54,000 plus superannuation for at least next 4 years. The accountant advised that the company’s turnover for the 2017 financial year was more than $4.5 million and the salary and wages paid for the 2017 financial year was $2,200,758.
·Business activity statements (BAS) from the ATO portal for the business in the period January 2017 to December 2017 recording sales in each quarter of between $1,298,629 and $2,150,867
·evidence regarding expenditure on training
·position description for the nominated occupation
·contract of employment dated 23 April 2018 between the applicant and the nominee recording that the base salary will be $60,000 and 9.5% superannuation.
·evidence regarding wages paid to the nominee
·information from Payscale.com regarding the average salary for the occupation indicating it is between $36,756 and $110,787 with a median salary of $58,787
The written submission advised that the nominee was granted a Subclass 457 visa on 6 March 2014 to work in the occupation for the applicant. He has continued to work in the position since then. The representative referred to evidence (the business’ website, ABN information and financial documents) demonstrating that the business is actively and lawfully operating in Australia.
The applicant provided to the Tribunal evidence at the hearing that applicant was approved as a standard business sponsor on 1 May 2018, the day of the hearing.
The application must be compliant: r.5.19(3)(a)
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.
On the basis of the information in Department's file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.
The application for approval identifies Manuel Gosselke who, according to Departmental records, has held a Subclass 457 visa since 6 March 2014 that was granted on the basis of satisfying cl.457.223(4) of Schedule 2.
The occupation identified in the application is Mixed Crop and Livestock Farmer (121411). The Tribunal is satisfied on the basis of the wages information and the Department’s records that the occupation identified is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is also satisfied that this occupation carries the same 4-digit code (121411) as the occupation carried out by the nominee whilst he held the Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
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.
The Tribunal has had regard to the ABN information, the financial documents and the applicant’s oral evidence at the hearing. The applicant has also provided a Certificate of Currency insurance document issued by QBE, valid until March 2019. The Tribunal also notes the Department most recently approved the applicant as a standard business sponsor on 1 May 2018. The Tribunal is satisfied the applicant was previously an approved standard business sponsor in the period October 2014 to October 2017. On the basis of this evidence the Tribunal is satisfied that the nominator is actively and lawfully operating crop and livestock farms at different properties in Western Australia.
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
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 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 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.
The applicant has provided to the Tribunal evidence that the nominee has been employed in the position since 7 March 2014 and has continued to be employed since (his PAYG payment summaries for the 2014 and 2015 financial years and payroll advices since 3 July 2015). On the basis of the evidence, the Tribunal is satisfied that the nominee has been employed full time in the position in Australia as the holder of a Subclass 457 visa for at least 2 years in the 3 year period immediately before this nomination application was made. The requirements in r.5.19(3)(c)(i) have therefore been met.
Given the above findings, the requirement in r.5.19(3)(c) is therefore met.
Future employment of the visa holder: r.5.19(3)(d)
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.
The Tribunal has had regard to the signed contract of employment for the nominee dated 23 April 2018 which was provided to the Tribunal. The contract, which sets out the terms and conditions of employment, indicates that the period of employment is a minimum of 2 years full time from the date of the visa grant, with capacity to extend the employment.
The Tribunal has had regard to the financial statements provided, the BAS, the payroll advices and PAYG payment summaries. On the basis of this material it is satisfied that the nominator has the financial capacity to maintain the nominee's employment as they have done since March 2014.
The Tribunal is also satisfied on the employment contract and other material before it that the nominee will be employed on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending the period of employment.
Given these findings the requirement in r.5.19(3)(d) is therefore met.
No less favourable terms and conditions of employment: r.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.
The applicant has provided information from Payscale.com regarding the average salary for a Mixed Crop and Livestock Farmer in Perth, indicating it is between $36,756 and $110,787 with a median salary of $58,787. The Tribunal notes from the oral evidence at the hearing that the position will be based in regional WA, on properties primarily in Pinjarra, but also near Geraldton, Lowe, Gingin and Yallingup. The Tribunal has also considered Joboutlook.com.au but it did not provide data on the average weekly salary for the occupation. The Tribunal notes however that the nominee was granted the Subclass 457 visa on the basis of this base salary and the Department was therefore satisfied that the base salary was no less favourable than that which would be provided to an Australian citizen or permanent resident performing equivalent duties in the same location.
On the basis of the information before it, the Tribunal is satisfied that the nominee's base salary is within the appropriate range of that normally paid to an experienced Mixed Crop and Livestock Farmer working in regional WA.
The Tribunal is satisfied that the terms and conditions applicable to the nominated 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.
Given the above, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
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.
In this case the applicant’s most recent standard business sponsorship application was approved on 1 May 2018, the day of the hearing. The Tribunal discussed the issue arising regarding that approval; whether the applicant is required to demonstrate it has met its training obligations during the period of the nominator’s most recent approval as a standard business sponsor (r.5.19(3)(f)(i)(A)) when the 12 month period has not expired. The Tribunal indicated that, if it found the obligation was not met, it would consider whether it is reasonable to disregard r.5.19(3)(f)(i)(A).
The applicant has indicated that in relation to past standard business sponsorship obligations it was obliged to spend the equivalent of at least 1% of the payroll of the business in the provision of training employees of the business (training benchmark B).
Regarding this issue the representative provided further evidence after the hearing explaining that the business employed an apprentice, Adam Pietracatella. He completed a Certificate III in Automotive Mechanical Technology. She provided evidence demonstrating he was paid wages of $98,786 in the period October 2014 to June 2016. She provided evidence regarding other training expenses paid prior to lodgement; including receipts from:
·Equip-safe dated March 2018 for various training sessions related to work safety and use of heavy equipment, for $14,128
·St John Ambulance dated March 2018 for first aid course, for $2,106
·Coastal Enterprises dated October 2016 for rigging, dogging and forklift driving, for $2,250
·Mines West dated October 2016 for heavy rigid non-synch training, for $2,640
·CERT dated October 2016 for forklift driving, for $1600.
The representative provided a list of participants in the Equipsafe and St John courses and stated they are all Australian citizens/permanent residents. The Tribunal notes that some of the receipts indicate Subclass 457 visa holders were also trained.
The representative has also submitted that there is an in-house training program valued at above $150,000. After the hearing she provided a copy of the training manual for the in-house Teamwork and Team Building course.
On the basis of the Department’s electronic records, the Tribunal finds the period of the applicant’s approval prior to the most recent approval was October 2014 to October 2017.
On the basis of the applicant’s Financial Statement for 2016 the Tribunal finds the salary expenditure in the 2015 financial year was $2,124,245, and in the 2016 financial year it was $2,158,712. The superannuation expenditure was $194,592 in the 2015 financial year and $197,627 in the 2016 financial year. Therefore the payroll expenditure for the 2015 financial year is $2,318,837, and for 2016 is $2,356,339. On the basis of the information provided the Tribunal is satisfied the business employed an apprentice in the period October 2014 to June 2016 and paid wages of $36,437 in the 2015 financial year and $54,488 in the 2016 financial year. The Tribunal is satisfied the business has fulfilled the commitments relating to training requirements for the 2015 and 2016 financial years.
While this information is relevant to the applicant’s past obligations it is not relevant to the current obligation arising from the applicant’s most recent approval as a standard business sponsor on 1 May 2018. This is the relevant approval that the Tribunal must consider. The commitment relating to meeting the training requirement must be fulfilled in each year that the applicant is approved as a standard business sponsor. The applicant’s most recent approval was less than 3 months ago. The applicant has until 1 May 2019 to fulfil the requirements relating to training and therefore it has until that date to comply with the applicable sponsorship obligations relating to their training requirements.
Given the above, the Tribunal considers that the requirements in r.5.19(4)(f) are either not applicable at time of decision in this case or, in the alternative, have been satisfied.
No adverse information known to Immigration: r.5.19(3)(g)
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.
The Tribunal notes that in 2007 the applicant was sanctioned for not complying with its responsibilities under immigration laws. The matter was reviewed by the then Migration Review Tribunal (differently constituted) and the member barred the applicant from sponsoring more people, and from making future applications for approval as a sponsor, until 28 October 2008, nearly 10 years ago. The Tribunal considers this to be adverse information known to Immigration. However it notes that since then the Department has approved the applicant as a standard business sponsor on 1 May 2018, and that it has been permitted to sponsor Subclass 457 visa holders such as the nominee in this case. In these circumstances, the Tribunal considers it reasonable to disregard the information.

Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
There is no evidence before the Tribunal to indicate that the applicant has not complied with workplace relations laws.
Accordingly, the requirement in r.5.19(3)(h) is met.
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.
Denise Connolly
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.

[2018] AATA 3503

25 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Appeal