TRIPLE ONE GROUP AUSTRALIA PTY LTD (Migration) - [2022] AATA 895

TRIPLE ONE GROUP AUSTRALIA PTY LTD (Migration) [2022] AATA 895 (31 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  TRIPLE ONE GROUP AUSTRALIA PTY LTD
REPRESENTATIVE:  Ms Jing SUN (MARN: 1066431)
CASE NUMBER:  1905654
HOME AFFAIRS REFERENCE(S):          BCC2017/2002661
MEMBER:Karen McNamara
DATE:31 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 31 March 2022 at 3:58pm
CATCHWORDS
MIGRATION – nomination of a position (employer nomination) – Temporary Residents Transition Nomination stream – position of Marketing Specialist – evidence of meeting training obligations – actively and lawfully operating a business in Australia – employed in the position for at least 2 years previously – terms and condition no less favourable – ongoing training contribution charge payments – decision under review set aside
LEGISLATION
Migration Act 1958, s 245
Migration Amendment (Skilling Australians Fund) Act 2018
Migration Amendment (Skilling Australians Fund) Regulations 2018
Migration Regulations 1994, Schedule 2 cl 457.223; rr 1.13, 1.20, 2.87, 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 Home Affairs on 1 March 2019 to reject the application by Triple One Group Australia Pty Ltd for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 6 June 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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)(f) of the Regulations because the applicant did not provide sufficient evidence to support that it fulfilled commitments made in relation to meeting training requirements during the period of the applicant’s most recent approval as a standard business sponsor.
The applicant applied to the Tribunal on 11 March 2019 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 22 March 2022, the applicant represented by Mr Bowen Zheng (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ruoming Tong (the nominee) in the related matter for the subclass 186 visa (AAT Case file 1908980). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was…

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.

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Details

Case: [2022] AATA 895
Decision Date: 31 March 2022

CaseChat Overview and Summary

This matter concerned an application by TRIPLE ONE GROUP AUSTRALIA PTY LTD for approval of an employer nomination for the occupation of Marketing Specialist under the Temporary Residence Transition stream. The applicant, a real estate agency operating in Sydney CBD, had lodged the application on 6 June 2017, sponsoring Ms Ruoming Tong, who held a Subclass 457 Visa. The case came before the Tribunal for review of a decision concerning the applicant's compliance with the requirements for nomination approval.

The primary legal issue before the Tribunal was whether the applicant met all the requirements stipulated in regulation 5.19(3) of the Migration Regulations 1994 for the approval of the employer nomination. This involved assessing whether the application was compliant, whether the nominated occupation matched the nominee's previous visa occupation, and whether the nominator satisfied various criteria relating to its business operations, sponsorship history, and employment conditions for the nominee.

The Tribunal found that the applicant had satisfied the procedural requirements of the application, including its form, fee, and certification. Crucially, the Tribunal was satisfied that the nominated occupation of Marketing Specialist (ANZSCO 225113) was the same as that held by the nominee on her Subclass 457 Visa, based on evidence including employment contracts and departmental records. Furthermore, the Tribunal determined that the applicant met the criteria of being actively and lawfully operating a business in Australia, and that the nominee had been employed in the nominated position full-time for at least two years. The Tribunal also found that the terms and conditions of employment were no less favourable than those provided to Australian citizens or permanent residents performing equivalent work.

Consequently, the Tribunal set aside the previous decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Background ASIC records provided by the applicant to the Tribunal, show that the company was registered on 23 April 2012. The applicant operates a real estate agency located in the Sydney CBD. On 6 June 2017, the applicant lodged an application for an employer nomination for the occupation of Marketing Specialist (ANZSCO 225113) under the Temporary Residence Transition nomination stream. The nominated salary is $65,000 per annum plus superannuation. The applicant sponsored Ms Ruoming Tong for her Subclass 457 Visa, which Department records confirm that she held at the time of the nomination application. Department records show that the applicant was most recently granted approval as a standard business sponsor (SBS) on 6 February 2015 to 6 February 2018. Department records show that the nominee was granted a 457 Visa on 20 April 2015 Evidence provided to the Tribunal indicates that the nominee commenced full time employment with the applicant in May 2015, in the position of Marketing Specialist. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.The application must be compliant: reg 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. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly, the requirements of r.5.19(3)(a)(i) are met. The application for approval identifies Ms Ruoming Tong who according to Department records, was granted a subclass 457 Visa on 20 April 2015, on the basis of satisfying cl.457.223(4) of Schedule 2. Accordingly, the requirements of r.5.19(3)(a)(ii) are met. The occupation identified in the application is Marketing Specialist (ANZSCO 225113). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee, the nominee’s contract of employment and Department 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 four digit code as the occupation carried out by the nominee whilst she held the Subclass 457 Visa. Accordingly, the requirements of r.5.19(3)(a)(iii) are met.

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 Temporary Residence Transition nomination stream set out in reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Background ASIC records provided by the applicant to the Tribunal, show that the company was registered on 23 April 2012. The applicant operates a real estate agency located in the Sydney CBD. On 6 June 2017, the applicant lodged an application for an employer nomination for the occupation of Marketing Specialist (ANZSCO 225113) under the Temporary Residence Transition nomination stream. The nominated salary is $65,000 per annum plus superannuation. The applicant sponsored Ms Ruoming Tong for her Subclass 457 Visa, which Department records confirm that she held at the time of the nomination application. Department records show that the applicant was most recently granted approval as a standard business sponsor (SBS) on 6 February 2015 to 6 February 2018. Department records show that the nominee was granted a 457 Visa on 20 April 2015 Evidence provided to the Tribunal indicates that the nominee commenced full time employment with the applicant in May 2015, in the position of Marketing Specialist. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.The application must be compliant: reg 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. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly, the requirements of r.5.19(3)(a)(i) are met. The application for approval identifies Ms Ruoming Tong who according to Department records, was granted a subclass 457 Visa on 20 April 2015, on the basis of satisfying cl.457.223(4) of Schedule 2. Accordingly, the requirements of r.5.19(3)(a)(ii) are met. The occupation identified in the application is Marketing Specialist (ANZSCO 225113). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee, the nominee’s contract of employment and Department 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 four digit code as the occupation carried out by the nominee whilst she held the Subclass 457 Visa. Accordingly, the requirements of r.5.19(3)(a)(iii) are met.

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.Karen McNamaraMemberATTACHMENT - 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.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); andNote 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.

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.Karen McNamaraMemberATTACHMENT - 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.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); andNote 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.