TRAZMET (SYDNEY) PTY LTD (Migration)

[2017] AATA 314

TRAZMET (SYDNEY) PTY LTD (Migration) [2017] AATA 314 (1 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TRAZMET (SYDNEY) PTY LTD

CASE NUMBER:  1510188

DIBP REFERENCE(S):  BCC2015/222183

MEMBER:Rania Skaros

DATE:1 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2017 at 2:32pm

CATCHWORDS

Migration – Nomination – Temporary Residence Transition nomination stream – Full-time employment in position for required period – Carpenter and Joiner – Nomination transferred to new company – Related entities  

LEGISLATION

Corporations Act 2001, ss 50AAA(2)(7)
Migration Act 1958, ss 140GB, .245AR(1)
Migration Regulations 1994, Schedule 2, r 5.19(3), r 5.37, cl 457.223(4), IMMI 13/030
Payroll Act 2007, s 73

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 13 July 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 21 January 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.5.19of the Regulations because the delegate was not satisfied that the nominee had 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.

5. The director of Trazmet (Sydney) Pty Ltd (the nominator), Mr Treffiletti, and the Paryroll Manager, Ms Carmelina Savona, appeared before the Tribunal on 7 February 2017 to give evidence and present arguments on behalf of the nominator. The Tribunal also took evidence from Mr Russo.

6. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal 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. On the basis of material in the Department’s file, the Tribunal is satisfied that the application was made in accordance with the approved form and accompanied by the fee prescribed in regulation 5.37.  The Tribunal is also satisfied that the relevant certifications have been included.

11. The application identified Mr Giulio Russo (the visa applicant) for the nominated position of Carpenter and Joiner. Departmental records indicate that Mr Russo was granted a Subclass 457 visa on 3 July 2012 on the basis of satisfying cl.457.223(4) of Schedule 2.

12. Given the above, the Tribunal finds that the requirement in r.5.19(3)(a) is met.

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

13. 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.

14. Departmental records indicate that Trazmet (Sydney) Pty Ltd was approved as a standard business sponsor on 2 December 2014 for a period of 3 years.

15. Mr Russo was originally nominated by Trazmet Forwork Pty Ltd and his employment was then transferred to Trazmet (Sydney) Pty Ltd in October 2014. The former representative advised the Department that the nomination had been transferred however no supporting evidence were provided. The Tribunal received a copy of the contract of employment between Mr Russo and Trazmet (Sydney) Pty Ltd dated 14 October 2014. The Tribunal also sought information from the Department that indicated that a nomination made by Trazmet (Sydney) Pty Ltd under 140GB of the Act in respect of Mr Russo was approved on 2 December 2014. This appears to be the most recent nomination in respect of Mr Russo. The Tribunal is accordingly satisfied that the nominator is the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act.

16. The nominator has provided to the Tribunal current information evidencing its operations, including ASIC reports, business registration documents, financial reports, organisational chart and wage records. The Tribunal is satisfied on the material before it that the applicant is actively and lawfully operating a business in Australia.

17. Given the above, the Tribunal finds that the requirements in r.5.19(3)(b) are met.

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

18. 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.

19. As noted above, Mr Russo was initially nominated by Trazmet Forwork Pty Ltd and his employment was transferred to Trazmet (Sydney) Pty Ltd in October 2014. The delegate was not satisfied that Mr Russo had worked in the same position for a period of at least 2 of the 3 years immediately before the nomination was lodged. In the decision record the delegate noted that there was insufficient information about the relationship between the two entities and whether Mr Russo had been employed in the same position for 2 years. The delegate requested further evidence be provided to demonstrate that the two companies were associated and evidence regarding Mr Russo’s employment, such as PAYG statements and wage records. The information was not provided within the period provided and the delegate proceeded to refuse the nomination.

20. On review, the Tribunal received substantially more evidence and submissions regarding this requirement. The Tribunal has had regard to the following documents; ASIC company extracts for Trazmet Forwork Pty Ltd, Trazmet (Sydney) Pty Ltd and other related entities, Trazmet Group’s organisational chart, extract of s.73 of the Payroll Act 2007, extract of s.50AAA of the Corporations Act, letter from Mr Treffiletti and PAYG Summaries and employment documents for Mr Russo.

21. It was submitted that Trazmet Forwork Pty Ltd and Trazmet (Sydney) Pty Ltd are associated entities as provided for in s.50AAA(2) and (7) of the Corporations Act on the basis that the two entities are part of the Trazmet Group of companies, are run by the same management team, operate from the same business premises and that Mr Treffiletti is the sole director/secretary and shareholder of the companies. It was also submitted that the Australian Taxation Office (ATO) groups all the companies for the purposes of payroll tax as they come under the grouping provision in the Payroll Tax Act 2007.

22. It was submitted that since 2012 Mr Russo has been employed on a full time basis as a carpenter and joiner by the associated entities under the direction and management of Mr Treffiletti. His employment was transferred to Trazmet (Sydney) Pty Ltd due to a restructure in the business’ operations. The PAYG payment summaries confirm that Mr Russo has been employed full time and that he has been paid by the entities of the Trazmet Group of companies.  At the hearing, Mr Russo and Mr Treffiletti also provided evidence confirming that Mr Russo has been employed in the same role as a carpenter and joiner since 2012.

23. The Tribunal is satisfied on the evidence before it that the two companies that sponsored Mr Russo in the relevant period are related entities. The Tribunal is also satisfied that Mr Russo has been working under the same conditions as a carpenter and joiner since 2012 at the same premises under the direction and management of Mr Treffiletti.

24. The change in sponsorship in this case only came about as a result of company restructure however Mr Russo has continued in the same position, performed the same tasks at the same location and has been working under the same management structure. In the circumstances, the Tribunal is satisfied that Mr Russo has been employed full time in Australia in the position for which he held a Subclass 457 visa for at least 2 of the 3 years immediately before the nomination was made. The requirement in r.5.19(3)(c)(i) is met.

25. Given the above findings, the requirement in r.5.19(3)(c) is 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 Tribunal has had regard to Mr Russo’s employment history and to the terms and conditions of his employment as set out in the current employment contract dated 15 October 2015. The PAYG payment summaries provided for Mr Russo for the last four financial years indicate that Mr Russo has been employed on a full time basis since 2012. The employment contract indicates that the position is full time and is for a period of four years commencing 15 October 2015 to 15 October 2019. The Tribunal is satisfied on the evidence that the nominator will employ Mr Russo for at least two years full-time and on terms that do not expressly preclude the possibility of an extension.

28. Given the above findings, the requirement in r.5.19(3)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

29. 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.

30. The employment contract for Mr Russo indicates that his base salary is $$58,600 per annum plus superannuation. It was submitted that the company’s Australian workers are employed under a collective employment agreement as required by the CFMEU and do not have individual written contracts. A copy of the collective agreement was provided to the Tribunal to which it has had regard. It was submitted that Mr Russo is entitled to all the holiday pay, super, RDO and statutory employment benefits provided to all the other carpenters employed by the nominator under the collective agreement. The nominator also provided copies of payslips for Mr Xiong Wu and a copy of Mr Wu’s Australian passport. The payslips indicate that Mr Wu and Mr Russo receive the same base rate of pay.

31. The Tribunal is satisfied on the totality of the evidence that the terms and condition 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 requirement in r.5.19(3)(e) is met.

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

32. 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.

33. The nominator was most recently approved as a standard business sponsor in October 2014 for a period of three years. The sponsorship remains current.

34. Departmental records indicate that the applicant was approved as a standard business sponsor on the basis of meeting training benchmark B (IMMI 13/030), which required the applicant to demonstrate 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.

35. It was submitted that the nominator has fulfilled the training commitment made in relation to meeting the training requirement through the employment of apprentices. In support of this submission, the nominator provided evidence of its payroll and apprentice wages for the relevant period. The information indicates that the nominator’s payroll for the period between 2 December 2014 and 2 December 2015 was $2.3 million and that the expenditure on apprentice wages for same period was $84,580. From 5 December 2015 to 4 December 2016 the payroll was $5.5 million and expenditure on apprentice wages was $77,528.

36. The Tribunal finds that the nominator’s expenditure on training since its approval exceeds 1% of the payroll. On the evidence, the Tribunal is satisfied that the applicant fulfilled the commitments made relating to meeting the training requirements and complied with the applicable sponsorship obligations relating the training requirements during its most recent period of approval as a sponsor.

37. Given the above, the requirement in r.5.19(3)(f) is met.

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

38. 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. 

39. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with the immigration laws of Australia. The Tribunal is accordingly satisfied that the requirement in r.5.19(3)(g) is met.

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

40. 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.

41. There is no evidence before the Tribunal 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. The Tribunal is accordingly satisfied that the requirement inr.5.19(3)(h) is met.

    Conclusion

42. 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

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

    Rania Skaros
    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.