Wentworth Metals Group Pty Ltd (Migration)

[2019] AATA 721

Wentworth Metals Group Pty Ltd (Migration) [2019] AATA 721 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Wentworth Metals Group Pty Ltd

CASE NUMBER:  1619622

DIBP REFERENCE(S):  BCC2016/1275641

MEMBER:Catherine Carney-Orsborn

DATE:10 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 10 April 2019 at 5:18pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – full-time employment for two years in three years before application – evidence of employment provided – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 359A
Migration Regulations 1994, Schedule 2, rr 5.19, 5.37, 1.13A, 1.13B

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 1 November 2016 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 24 March 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 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) of the Regulations because the delegate was not satisfied that the nominee had been employed full-time for two years in the three years before the application.

5. Mr Hillam (the director of the applicant company) appeared before the Tribunal on 19 March 2019 to give evidence and present arguments on behalf of the applicant company. The Tribunal also received oral evidence from the nominees Mr Thanh Binh Luu and Mr Hieu Phan.

6. The applicant was represented in relation to the review by its registered migration agent.

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.

9. The Tribunal has the Department’s file and the Tribunal files before it.  It has information and documents provided by the applicant, which were not provided to the Department.  Financial documents were provided including tax returns, profit and loss statements and payroll records for the visa applicant.  The Tribunal has company searches, Surveys of the mine sites and other relevant documents.

10. The Tribunal took evidence from the director of the applicant company.  He provided a history of the work of the applicant company.  He went through the business that it conducted at the site and the work conducted by the visa applicant.

11. His evidence is that he has 13 mine leases.  He has employees in Sydney who deal with the accounts and administration of the company.  He has only two employees whom he is sponsoring.  He otherwise has contractors who come onto the site to conduct tasks on the mine site.  He estimates that at any time he would have about ten people in the field.

12. The visa applicant stays out at the site.  The applicant claims that this is necessary, as he needs someone to be on site for security reasons as there is expensive heavy equipment and constructions at the site.  He claims that the visa applicant has worked for him for about five years full-time.

13. The Tribunal queried why the training obligations had not been met.  The applicant responded that he and his wife had health concerns and had undergone surgery in the last year.   He said he was also concerned about the changes in March 2017 and wanted to clarify what the requirements are.  He claimed that he was not aware of the amount of the training levy until his representative had identified the issue.  He claims he has directed his staff to make the payment. 

14. The Tribunal took evidence from the visa applicant.  His evidence was consistent with the evidence provided by the applicant.  He went through his qualifications, experience and the work he had been undertaking for the applicant.  He was able to discuss his work in a credible manner.

15. After the hearing, the Tribunal issued a s.359A letter and requested further documents to clarify some concerns.

16. The applicant provided the required documentation and submissions and the Tribunal has considered that response.  

    The application must be compliant: r.5.19(3)(a)

17. 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.

18. The Tribunal is satisfied on the material contained in the Department’s file that the application was made in accordance with the approved form and accompanied by the fee prescribed in regulation 5.37. 

19. The application identified Mr Phan  (the visa applicant) for the nominated position of Supervisor, Operator, Chemical Engineer, Metallurgical Technician ANZSCO 312912. Departmental records indicate that Mr Phan was granted a subclass 457 visa on 26 March 2012. 

20. 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)

21. 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.

22. The applicant was approved as a Standard Business Sponsor on 5 June 2012 until 5 June 2015.  Departmental records indicate that the applicant was the sponsor who last identified Mr Phan who is the relevant 457 visa holder, in a nomination made under s.140GB.  

23. Given the above, the requirement in r.5.19(3)(b) is met.

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

24. 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.

25. The material before the Tribunal indicates that Mr Phan commenced employment with the applicant, as the holder of a 457 visa, in December 2013. The Tribunal has pay records and tax records, which indicate the sponsor/applicant company currently employs Mr Phan

26. The Tribunal is accordingly satisfied that the nominee has 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 immediately before the nomination application.

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

    Future employment of the visa holder: r.5.19(3)(d)

28. 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.

29. The applicant/nominator’s evidence at hearing is that he intends to employ Mr Phan for an ongoing period.  He claims that his business is expanding and he needs Mr Phan’s expertise. 

30. The Tribunal has had regard to Mr Phan’s employment and to the terms and conditions of Mr Phan’s employment as set out in the evidence provided. The PAYG payment summaries provided for Mr Phan indicate that Mr Phan has been employed by the applicant on a full time basis since 2013. The payroll and financial documents indicates that he is still employed. The Tribunal has also had regard to the applicant’s declaration in the nomination form indicating that it will provide full time employment to Mr Phan for a period of at least two years.

31. The Tribunal is satisfied that on the totality of the evidence that the applicant intends to employ Mr Phan for at least two years full-time and on terms that do not expressly preclude the possibility of an extension.

32. 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)

33. 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.

34. The employment records for Mr Phan indicate a base salary of $60,000. The Tribunal has considered the representative’s submissions and supporting documentation in relation to how Mr Phan’s salary was determined. 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)

35. 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.

36. On the evidence before the Tribunal, the applicant company at the time of the Department’s decision had not complied with the obligations relating to training during the most recent sponsorship approval.

37. The applicant company has since that time provided evidence of a payment to TAFE NSW for a Mining Scholarship Fund for over $9,000.

38. The applicant’s evidence is that it had not earlier complied, as the director was unwell and undergoing surgery.  There was also concern about the changes made to the criteria in March 2017, which the representative had clarified for them.

39. Given the above and that, the Tribunal is satisfied the applicant is a lawful business employing the visa applicant.  The Tribunal finds the applicant has now complied and finds it reasonable to disregard the earlier non-compliance.

40. Accordingly, the requirement in r.5.19(3)(f) is met.

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

41. 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.

42. 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. There is nothing before the Tribunal to indicate adverse information. 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)

43. 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.

44. The Tribunal was concerned that in 2016 there was a judgement against the company to Workers Compensation Nominal Insurer.  The applicant has provided documents that show that there was a debt, which was paid in full.  The Tribunal further notes that the judgement was not for the applicant company but for an affiliated company.

45. Given there is no evidence of any other non-compliance and this matter was settled in full in 2016 the Tribunal is satisfied that the applicant company has a satisfactory record of compliance. 

46. Accordingly, the requirement in r.5.19(3)(h) is 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.

    Catherine Carney-Orsborn
    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.