Whyte Civil Pty Ltd (Migration)

[2021] AATA 5560

Whyte Civil Pty Ltd (Migration) [2021] AATA 5560 (20 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Whyte Civil Pty Ltd

CASE NUMBER:  1901944

HOME AFFAIRS REFERENCE(S):          BCC2018/677398

MEMBER:Karen McNamara

DATE:20 December 2021

PLACE OF DECISION:  Sydney

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

Statement made on 20 December 2021 at 1:23pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Plumber (General) – previous employment of the employee – employed and actively performing the duties of the nominated position for a total of at least 2 years in the preceding 3-year period – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19

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 Home Affairs on 8 January 2019 to reject the application by Whyte Civil Pty Ltd (the applicant) for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 9 February 2018. 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).

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 reg 5.19(3)(c) of the Regulations because the delegate was not satisfied that the nominee had been employed and actively performing the duties of the nominated position for a total of at least 2 years in the 3-year period immediately before the lodging of the nomination and that the nominee has been employed in Australia in their nominated position on a subclass 457 visa on a full-time basis.

5. The applicant applied to the Tribunal on 29 January 2019, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.

6. On 25 November 2021, the applicant represented by Mr Daryl Whyte (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 Mr Philip Whyte (the nominee) in the related matter for the subclass 186 visa (AAT Case file 1907892). The related matters were heard concurrently in a combined hearing.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.

8. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

9. 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

10. 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

11. The applicant is an accredited Sydney Water contractor based in Sydney (Oran Park) NSW. ASIC records show the company was registered on 17 January 2014. The company provides construction and excavation work on large scale civil infrastructure and engineering projects, specialising in sewer and stormwater installations. The applicant sponsored Mr Philip Whyte (the nominee), for his Subclass 457 Visa, which Department records confirm that he held at the time of the nomination application.

12. Department records show that the applicant initially was approved as a standard business sponsor on 3 September 2014 to 3 September 2015 (SBS start-up) and 11 September 2015 to 11 September 2020. The applicant’s most recent approval as a standard business sponsor was granted on 11 December 2020 to 10 December 2025.

13. Department records show that the nominee was granted a 457 Visa on 17 September 2014 to 17 September 2015 and 30 September 2015. Information before the Tribunal shows that the nominee commenced full time employment with the applicant in September 2014, in the occupation of Plumber (General) (ANZSCO 334111).

14. 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.

15. The Tribunal discussed with the applicant the requirements of r.5.19(3). The following is a summary of the oral and written evidence provided to the Tribunal during and following the hearing.

    The application must be compliant: reg 5.19(3)(a)

16. 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 and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.

17. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the prescribed fee. The Tribunal notes the inclusion of disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act. Accordingly, the requirements of r.5.19(3)(a)(i) are met.

18. The application for approval identifies Mr Philip Whyte who according to Department records, was granted a subclass 457 Visa on 17 September 2014 and 30 September 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.

19. The occupation identified in the application is Plumber (General) (ANZSCO 334111). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee 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 he held the Subclass 457 Visa. Accordingly, the requirements of r.5.19(3)(a)(iii) are met.

20. In support for the need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control, the Tribunal accepts the evidence provided by the applicant in the form of supporting statements dated 18 May 2017 and 10 October 2021 and the oral evidence provided at the hearing.

21. Evidence before the Tribunal shows that the applicant specialises in sewer and stormwater installations. The position of Plumber is integral to the nature of the business and is a long-standing position within the organisation structure. Accordingly, the Tribunal is satisfied the requirement of r.5.19(3)(a)(iv) is met.

22. As the criteria in r.5.19(3)(a)(i), r.5.19(3)(a)(ii), r.5.19(3)(a)(iii) and r.5.19(3)(a)(iv) are satisfied, accordingly the requirements in r.5.19(3)(a) are met.

    Status of the nominator: reg 5.19(3)(b)

23. 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.

24. The Department’s records confirm the applicant was granted the most recent business sponsorship in the period 11 December 2020 to 11 December 2025.

25. The applicant has provided to the Tribunal copies of work contracts, BAS returns and financial records, recording the business has income from sales and has paid wages and withheld tax. The business’s financial statements confirm that the business derives income from the operation of a civil construction business providing sewer and stormwater installations. ASIC records before the Tribunal confirm that the business name is registered.

26. Based on ASIC information, financial documents, payroll records, contractual agreements and the applicant’s oral evidence, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and did not, meet regulation 1.20DA or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor.

27. Given the above, the requirements in r.5.19(3)(b) are met.

    Previous employment of the nominee: reg 5.19(3)(c)

28. Broadly speaking, to meet the requirement in reg 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.

29. The delegate refused the application on the basis the nominee (whilst the holder of the Subclass 457 visa) had not been employed and actively performing the duties of the nominated position for a total of at least 2 years in the 3-year period immediately before the lodgement of the nomination and that the employment in the position has been full time and undertaken in Australia.

30. The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the period of time the nominee held a 457 visa and undertook the employment in the position whilst in Australia.

31. Relevant to this matter is the period of time the nominee held a Subclass 457 visa whilst working in the nominated position prior to his departure from Australia. The Tribunal has considered the evidence provided by the applicant during the hearing, in so far as the delegate in making their decision, did not take into consideration that the nominee was granted and held a Subclass 457 visa from 17 September 2014 to 17 September 2015. The applicant submits that this period be taken into consideration for the purpose of determining the period of the nominee’s employment, whilst holding a Subclass 457 visa in the 3-year period prior to the nominator making the application.

32. In this matter, the nominee was granted a Subclass 457 visa on 17 September 2014 for the nominated position of Plumber (General) (ANZSCO 334111) within the business of Whyte Civil Pty Ltd who was an approved Standard Business Sponsor (SBS). The delegate found that at the time of their decision (8 January 2019) the nominee had been offshore since 12 August 2017 and as such had not been employed and actively performing the duties of the nominated position for a total of at least 2 years in the 3-year period immediately before lodging the application on 9 February 2018.

33. The relevant period of time for consideration in this matter is the 3-year period immediately before the nominator (applicant) made the application, which in this case is the period 9 February 2015 to 9 February 2018.

34. During the requisite period, Department records show that the nominee held a Subclass 457 visa from 17 September 2014 to 17 September 2015 and 30 September 2015 to the time of lodgement on 9 February 2018. During the period 9 February 2015 to 9 February 2018 Department records show the nominee was onshore 807 days. The applicant has provided to the Tribunal copies of the nominee’s PAYG summaries and payroll records supporting that the nominee was employed on a full-time basis by the applicant for over two years in the requisite 3-year period.

35. Based on this evidence, the Tribunal is satisfied that in the period of 3 years immediately before the nominator made the application, the nominee held a Subclass 457 visa for a total period of at least 2 years and was employed in the position in respect of which the nominee holds the Subclass 457 visa, for a total period of at least 2 years and that the employment in the position has been full-time and undertaken in Australia. The requirements in r.5.19(3) ( c) (i) have therefore been met.

36. Accordingly, the requirements in r.5.19(3)(c) are met.

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

37. Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 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.

38. The Tribunal notes that the occupation, for which the nominee held the Subclass 457 Visa, is that of Plumber (General) (ANZSCO 334111). As the occupation is not one of those specified in the relevant instrument for the purposes of r.5.19(3) (c )(ii), the nominee is not a person described in r.5.19(3) (c )(ii) and the applicant is therefore not exempt from having to satisfy the requirement in r.5.19(3)(d). As the nominee is a person described in r.5.19(3)(c)(i), the applicant must satisfy the requirements of r.5.19(3)(d).

39. In considering whether the business has the financial capacity to pay the nominee, the nominated full-time salary of $59,384 per annum for at least two years, the Tribunal has taken into consideration evidence before it including the applicant’s most recent financial statements, documents submitted to the ATO and information which show the applicant has met payroll and operating costs.

40. The Tribunal notes that the applicant’s 2020/21 financial statements show that the business has reported substantial revenue with proportionally aligned profit. The applicant’s BAS returns, and financial statements indicate that the applicant’s revenue can sustain the ongoing employment of the nominee. The applicant has also provided copies of contractual agreements supporting long term sub contractual engagement for the applicant.

41. In undertaking its assessment that the nominee will be employed on a full-time basis in the position for at least 2 years, the Tribunal has also taken into consideration the nominee’s employment with the applicant prior to his return to Ireland. Evidence before the Tribunal shows that the nominee was employed on a full-time basis from September 2014 to July 2017. The Tribunal notes evidence provided at the hearing that the nominee returned to Australia in February 2019 and resumed employment with the applicant until returning to Ireland in May 2019 and has been unable since, to return due to COVID 19 travel restrictions. The nominee’s PAYG’s and applicant’s payroll and bank records support the nominee received regular salary payments in excess of the nominated salary amount and employer superannuation contributions have been paid.

42. The Tribunal has afforded consideration to the financial evidence before it and is satisfied the applicant has the financial capacity to pay the nominee a full-time salary of $59,384 per annum and maintain the employment of the nominee on a full-time basis for two years.

43. Accordingly, the requirement in r.5.19(3)(d)(i) is met.

44. The Tribunal has had regard to the most recent employment contract dated 18 November 2021. The contract sets out the terms and conditions of employment and indicate that the period of employment is ongoing and the contract is in force for a period of two years from the date of the visa grant. The contract stipulates the base salary is $70,000 per annum (exclusive of superannuation) with hours of work 38 per week. There is no term excluding an extension of the contractual engagement.

45. The Tribunal is satisfied based on the employment contract dated 18 November 2021 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.

46. Accordingly, the requirement in r.5.19(3) (d) (ii) is met.

47. As the criteria in both r.5.19(3)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(3)(d) are met.

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

48. 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.

49. The contract of employment dated 18 November 2021, sets out the nominee’s terms and conditions of employment and indicates that the nominee’s base salary is $70,000 per annum, exclusive of superannuation with hours of work 38 hours per week. The nominee’s leave entitlements include annual, personal/carers and compassionate leave.

50. The Tribunal has received ATO PAYG summaries, payroll records and bank statements confirming that the nominee during his employment with the applicant, has been paid in excess of the nominated salary amount of $59,384 per annum and received superannuation payments. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.

51. The Tribunal is satisfied on the totality of the evidence before it 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.

52. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: reg 5.19(3)(f)

53. 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.

54. The Department’s records confirm the applicant was granted the most recent business sponsorship in the period 11 December 2020 to 11 December 2025.

55. From 18 March 2018, a number of criteria relating to approval as a standard business sponsorship are no longer applicable even in relation to applications for approval made prior to that date. These were:[1]

    ·if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more - the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing (r.2.59(d));

    ·if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months - the applicant has an auditable plan to meet the benchmarks specified in the written instrument (r.2.59(e));

    ·if the applicant has previously been a standard business sponsor, either the applicant fulfilled any commitments and complied with applicable obligations relating to training requirements, or it is reasonable to disregard that requirement (r.2.59(j)).

    [1] r.2.59(d), (e), and (j) were repealed by F2018L00262, and specified to no longer apply to applications for approval as a standard business sponsor made, but not finally determined before 18 March 2018 (see clause 6704(2) of Schedule 13 of the Regulations).

1. The Tribunal finds that as the applicant’s most recent sponsorship approval as a standard business sponsor was on 11 December 2020 and because this approval was not subject to training requirements and obligations, the requirements for the applicant to have met them for the purposes of satisfying r.5.19(3)(f), are no longer applicable.

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

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

3. 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 regs 1.13A and 1.13B.

4. There is no evidence before the Tribunal to indicate that there is adverse information as per the meaning given in rr.1.13A and 1.13B, known to the Department about the applicant or an associated person.

5. Accordingly, the requirement in r.5.19(3)(g) is met.

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

6. 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.

7. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.

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

   Genuine need to employ nominee: reg 5.19(3)(i)

9. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

10. The applicant is a civil construction business providing large scale civil infrastructure and engineering projects, specialising in sewer and stormwater installations. The business was established in January 2014.  The nominee Mr Philip Whyte is noted in ASIC records as a previous Director during the period 17 January 2014 to 10 August 2017. At the hearing it was disclosed to the Tribunal that the nominee and Mr Daryl Whyte are related.

11. In affording consideration as to the genuine need for the nominator to employ the nominee, the Tribunal whilst noting the relationship between applicant and nominee has turned its mind to considerations including the context of the business setting in which the position operates including, the financial profile of the business, staffing structure, business activities and the scale of those activities. The Tribunal has also taken into consideration the attempts undertaken by the applicant to recruit a Plumber domestically and what coverage was provided to fulfill the tasks of the position in the absence of the nominee.

12. Having afforded consideration to the evidence before it, the Tribunal is satisfied on balance there is a genuine need for the nominator to employ the nominee as a paid employee to work in the position under the nominator’s direct control and accordingly the requirement in r.5.19(3)(i) is met.

13. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19(3) for approval of the nomination of the position in Australia.

    DECISION

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

    Karen McNamara
    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

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.