Ultraspin Technology Pty Ltd (Migration)

[2017] AATA 963

Ultraspin Technology Pty Ltd (Migration) [2017] AATA 963 (14 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ultraspin Technology Pty Ltd

CASE NUMBER:  1513311

DIBP REFERENCE(S):  BCC2015/1136370

MEMBER:Mary-Ann Cooper

DATE: 14 June 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 14 June 2017 at 4:25pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Subclass 457 – Temporary Residence Transition nomination stream – Tasks correspond to nominated occupation – Engineering Professional – Differing occupation codes – Nominated position does not match occupation carried out by nominee

LEGISLATION

Migration Act 1958, ss 245AR, 359A

Migration Regulations 1994, 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 15 September 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 16 April 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)(f)(i) of the Regulations because no evidence was provided of the applicant’s payroll and training expenditure.

5. The applicant, as represented by its Sales Manager, appeared before the Tribunal on 9 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s HR Consultant. 

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)

8. 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 person who holds a subclass 457 visa granted on the basis of satisfying cl.457.223(4) and identify an occupation in relation to the position that is listed in ANZSCO and has the same 4 digit code as the occupation carried out by the subclass 457 visa holder.

9. 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.

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

11. The application for approval identifies the nominee who, according to Departmental records and copies of his visa grant as supplied by the applicant, has held a Subclass 457 visa since 24 February 2012 which was granted on the basis that he satisfied subclause 457.223(4) of Schedule 2. The Tribunal finds the requirements of r.5.19(3)(a)(ii) are met.

12. In relation to r.5.19(3)(a)(iii), the applicant has identified the nominated occupation as ‘Engineering Professional nec’. This occupation is listed in ANZSCO and therefore r.5.19(3)(a)(iii)(A) is met.

13. The occupation of “Engineering Professional nec’ is identified as within ANZSCO Unit Group 2339. The occupation carried out by the visa applicant as the holder of the subclass 457 visa is that of Mechanical Engineer, which is listed in ANZSCO in Unit Group Code 2335. Therefore the nominated occupation does not have the same 4-digit unit group code as the occupation carried out by the nominee as the holder of a Subclass 457 visa.

14. This regulation was discussed at the hearing and the response of the applicant’s representative was that the roles were similar. It was only clear after the hearing that the unit group codes were different. Consequently the Tribunal wrote to the applicant, under s.359A of Act, particularising the relevant information, its relevance and the consequence of the Tribunal’s reliance on it.

15. The applicant responded within the time required, explaining that the visa applicant/nominee had been working for the organisation since September 2011 in the role of ‘Field Engineer’ however there was no specific ANZSCO code for this occupation so, on the basis of the nominee’s mechanical engineering qualifications, the occupation of ‘Mechanical Engineer’ was chosen. It was further explained that the nominee’s skills and experience have grown as have his opportunities and responsibilities and he became a Senior Field Engineer and then a Service Supervisor. It was claimed that his primary tasks have remained the same (field engineering) except that he has additional supervisory responsibilities. When the applicant decided to nominate him for this permanent visa, the title ‘Service Supervisor’ also did not appear in ANZSCO, and a ‘judgment call’ was made to  select ‘Engineering Professionals nec’. It was claimed that although the occupation codes are different, they were the best match for the jobs performed, neither of which neatly fit into any one code. It was further claimed that his current role is still largely similar to his original employment.

16. While the Tribunal accepts the applicant’s explanation, unfortunately it has no discretion in this regard.

17. The Tribunal therefore finds that the ANZSCO 4-digit occupation unit group code for the occupation identified in relation to the nominated position is not the same as the 4-digit unit group code for the occupation carried out by the visa applicant as the holder of the subclass 457 visa.

18. Therefore the requirements of r.5.19(3)(a)(iii)(B) are not met and r.5.19(3)(a)(iii) as a whole is not met.

19. As the subparagraphs in r.5.19(3)(a) are cumulative, it follows that failure to satisfy r.5.19(3)(a)(iii) means that the applicant cannot satisfy r.5.19(3)(a). This in turn means that the applicant does not meet r.5.19(3) as a whole, and it is unnecessary for the Tribunal to consider the remaining subparagraphs (rr.5.19(3)(b) to (h)).

20. Given the above findings, the requirements in r.5.19(3) are not met.

    CONCLUSION

21. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position must be refused (r.5.19(5)).

22. Therefore, the Tribunal must affirm the decision under review.

    DECISION

23. The Tribunal affirms the decision under review to refuse 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.