Yeoman Enterprises Pty Ltd (Migration)

Yeoman Enterprises Pty Ltd (Migration) [2019] AATA 6537 (6 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Yeoman Enterprises Pty Ltd
CASE NUMBER:  1732625
DIBP REFERENCE(S):  BCC2017/2311546
MEMBER:Phoebe Dunn
DATE:6 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 06 December 2019 at 3:26pm

CATCHWORDS
MIGRATION – nomination refusal–Temporary Residence Transition nomination stream – comprehensive documentation and submissions provided – standard business sponsor – actively and lawfully operating a business in Australia – financial capacity of the business to employ the nominee for at least 2 years full time – no less favourable terms and conditions of employment – decision under review set aside

LEGISLATION
Migration Act 1958, s 245
Migration Regulations 1994, rr 1.20, 2.59, 2.68, 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 Immigration on 1 December 2017 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).
The applicant applied for approval on 29 June 2017. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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).
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(d)(i) of the Regulations because the applicant failed to demonstrate it had the financial capacity to employ the nominee full-time in the nominated position for at least two years.
The applicant, represented by Mr Craig Yoeman, appeared before the Tribunal on 28 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Dean Maher, the nominee, whose related review of a decision to refuse his Subclass 186 visa application was heard at the same time.
The Tribunal has received comprehensive documentation and submissions pre and post hearing in support of the application.
The applicant was represented in relation to the review by its registered migration agent, Ms Mary Hanna.
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 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.
At the hearing, the applicant gave detailed evidence about the nature of his business, and the nominee’s role. The applicant’s business services commercial dishwashing and glass washing machines, with clients across a range of hospitality and service industries including restaurants, hotels, child-care centres and aged care homes. The business also looks after equipment replacement and installation for customers where required. The applicant established the business in 1992, initially with his father, and has continued to build the business, employing up to five technicians at its peak.
The applicant described the difficulties in recruiting and retaining trained technicians, noting that there is a major skills shortage in this area. The applicant noted that he regularly conducts recruitment campaigns on seek.com and Facebook to ensure he has sufficient technicians to cover the workload, and this was supported by documentary evidence before the Tribunal. The applicant described the service industry as an ‘in-between’ industry, bridging plumbing and electrical trades. Accordingly, he cannot currently offer apprenticeships, as he cannot guarantee two years of full-time work solely as either a plumber or an electrician.
The applicant first met the nominee in 2013 when he was on a working holiday visa and applied for a role. The applicant was impressed by his experience and qualifications, noting that the nominee worked for his family’s business in the United Kingdom, performing similar work as outlined in his current CV, a copy of which has been provided to the Tribunal. In March 2014, the applicant was granted a Subclass 457 visa nomination. The applicant currently employs two other technicians as well as the nominee, and pays above the award as well as offering ‘work-life balance’ as an incentive to retain good staff. The nominee is currently paid a base salary of $79,275 per annum, plus superannuation. The applicant stressed that he would love to keep the nominee on for as long as possible, given his expertise and work ethic. The applicant noted that the nominee has extensive experience on European equipment, and is able to assist with training other technicians on servicing this type of equipment.
The application must be compliant: r.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 information before the Tribunal, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee, and the required s.245AR(1) certification.
The application for approval identifies Mr Dean Mark Maher, the nominee, who, according to Departmental records, held a Subclass 475 visa from 19 March 2014. The occupation identified in the application is that of Service Technician (ANZSCO 399999).
The Tribunal is satisfied based on the employment documents for the nominee, that the occupation identified is the same occupation carried out by the nominee as the holder of a Subclass 457 visa. Accordingly, the Tribunal is satisfied that this occupation carries the same 4-digit code (3999) as the occupation carried out by the nominee whilst he held a Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
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.
The standard business sponsorship for the applicant was approved on 23 January 2014 for a period of three years to 23 January 2017. Departmental records confirm that the applicant is the standard business sponsor who last identified the nominee in a nomination made under s.140GB of the Act.
The Tribunal has received current information evidencing that the applicant is actively and lawfully operating a business in Australia, including an ASIC current and historical search, financial statements from financial year (FY) 2015 to 2018, and company tax returns for FY2014, FY2015 and FY2018 together with evidence of lodgement in FY2016 and FY2017, and business activity statements for FY2017, FY2018 and the first three quarters of FY2019 (excluding April to June 2019). The applicant has also provided a current WorkCover Certificate of Currency.
The Tribunal has also had regard to Departmental records and is satisfied that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
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 two of the three 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 two years in the three years immediately before the application.
In this case, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 visa on 19 March 2014 to work in the nominated occupation of ‘Service Technician’. This nomination application was lodged on 29 June 2017.
In oral evidence at the hearing, the applicant has advised that the nominee started working for the applicant in 2013, initially on a working holiday visa. The applicant advised the Tribunal that he first met the nominee when he walked into the office looking for work, and applied for the role as a Service Technician. After a brief trial, the applicant was impressed with his skill and experience and decided to sponsor him. In March 2014, the nominee was granted a Subclass 457 visa to work in the nominated position, on an initial annual base salary of $69,350, plus superannuation. The applicant advised that the nominee has always been full-time in the position.
The Tribunal has considered the following documentary evidence to assess compliance with this provision: the nominee’s previous and current employment contracts and position descriptions; the nominee’s PAYG payment summaries for FY2014 to FY2019; and the nominee’s superannuation statements. On this basis of this information, the Tribunal is satisfied that the nominee has been employed on a full-time basis in Australia in the relevant position for at least two of the three years before the application.
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)
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 two years on terms that do not expressly preclude the possibility of an extension.
The Tribunal has considered the financial status of the business, noting that the delegate refused the nomination application on the basis that insufficient financial documentation had been provided to enable a positive finding that the applicant had the financial capacity to employ the nominee full-time for a period of at least two years. In particular, the delegate noted that the applicant had only submitted business activity statements from October 2015 to December 2016, which of itself was insufficient to demonstrate the financial capacity of the business.
At the hearing, the applicant discussed the financial capacity of the business, which the applicant described as performing well. In particular, the Tribunal notes that from 2015 to 2017, both income and profit remained steady, with turnover down in 2018, largely due to a loss of staff and corresponding lower wage expenses. In oral evidence, the applicant noted that profitability is improving in 2019 due to a business restructure including a reduction in non-productive overheads, vehicle expenses and administration expenses, with his wife now assisting with administration.
At the hearing, the Tribunal requested the provision of financial statements for FY2018. By letter dated 24 November 2019, the applicant provided detailed submissions explaining the delay in providing the FY2018 financial statements was because the applicant’s accountant had not yet finalised the documents. The applicant indicated a willingness to keep the Tribunal informed about progress, and offered to provide evidence of attempts to obtain the finalised documents from the accountant, such as emails. The Tribunal has since received and considered the finalised financial statements and company tax returns for FY2018.
The Tribunal notes that it now has the benefit of financial statements from FY2015 to FY2018, business tax returns for FY2015, FY2016 and FY2018, and the most recent business activity statements from FY2017 to FY2019 (excluding the April 2019 to June 2019 quarter), that were not before the delegate at the time of the original decision. The Tribunal has considered the documentary information together with oral evidence at the hearing, and is satisfied that the applicant has the financial capacity to pay the nominee for a minimum of two years full-time in the nominated position.
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)
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.
In written and oral evidence, the applicant has advised that there are two other employee’s working in the business who are Australian citizens, who are on slightly higher hourly rates than the nominee, $45 and $42 per hour compared to the nominees hourly rate of $40 per hour. The applicant explained that this is because they have formal electrical qualifications which the applicant does not have (an A Grade electrical licence and a Disconnect Reconnect electrical licence), enabling them to perform additional work which the nominee can’t legally perform, and as such they are not performing equivalent work.
The Tribunal notes the applicant pays above award wages to the nominee and the nominee is engaged on the same terms and conditions as the other employees who are Australian citizens, excluding salary. The Tribunal accepts the applicant’s explanation regarding the difference in salary, and finds that the terms and conditions applicable to the position are no less favourable than those which would be provided to Australian citizens or permanent residents 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)
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.
The applicant’s standard business sponsorship approval for the relevant period was from 23 January 2014 until 23 January 2017. In submissions to the Tribunal, the applicant has sought to establish compliance with the training requirements under Training Benchmark B in Schedule A of IMMI 13/030.
The applicant has provided extensive submissions to the Tribunal seeking to demonstrate compliance with the training benchmark commitments and obligations. The Tribunal has had regard to the following documentary evidence and submissions provided:
a.Details of training conducted by Adecco Customer Service, together with invoices and receipts;
b.Details of training conducted by Bogong Management Services, together with invoices and receipts;
c.Technical training sessions conducted by the manufacturer of commercial glass and dish-washing machines, Winterhalter and Hobart Food Equipment, in respect of their branded machines, together with invoices and receipts;
d.Customer service training conducted by the Victorian Chamber of Commerce and Industry on emotional intelligence and effective workplace communication, together with invoices and receipts;
e.Software training by SimPro for all staff;
f.Submission outlining training undertaken during the sponsorship period and ongoing training undertaken and proposed following the end of the most recent standard business sponsorship; and
g.Evidence of payment of training-related invoices, such as bank account transfers and transactions.
The financial reports and tax returns before the Tribunal indicate that the applicant’s payroll for the first year of the standard business sponsorship (23 January 2014 to 23 January 2015) was approximately $386,266 (based on the Tribunal’s calculations), equating to a requirement to spend at least $3,862.66 under Training Benchmark B on training Australian citizens and permanent residents for each year the applicant was approved and employed a Subclass 457 visa holder. In the second year of the standard business sponsorship (23 January 2015 to 23 January 2016), the payroll was approximately $384,392.50, equating to a requirement to spend at least $3,843.92 under Training Benchmark B and in the third year (23 January 2016 to 23 January 2017) it was approximately $215,416.50, equating to a requirement to spend at least $2,154.16.
The Tribunal notes that, based on the documents before it, the applicant spent a total of $6,393.97 on training conducted by Adecco Customer Service training in the first year of the standard business sponsorship. In the second year of the standard business sponsorship, the applicant spent a total of $7,040 on training conducted by Bogong Management Services, and in the third year spent a total of $4,377.75 on service training conducted by Winterhalter, a manufacturer of glass and dishwashing machines. The Tribunal notes that in respect of the third year of the standard business sponsorship, the training was conducted in November 2015, but paid for on 23 January 2016 (being the first day of the third year). Notwithstanding this, the Tribunal accepts these payments as meeting the applicant’s training commitments and obligations for the duration of the most recent standard business sponsorship having regard to Schedule A of IMMI 13/030 and relevant policy. In doing so, the Tribunal notes that the applicant has spent a total of $17,811.72 on training over the three years, well in excess of the required amount, being $9,860.74. In addition, the Tribunal notes that the applicant has spent a further $8,139.50 on training since the end of the most recent standard business sponsorship, with a further $5,280 proposed for November 2019.
As such, the Tribunal is satisfied that the applicant met its training commitments and obligations for the terms of the standard business sponsorship running from 23 January 2014 to 23 January 2017.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
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.
There is no evidence before the Tribunal to indicate there is adverse information known to the Department about the applicant or a person associated with the applicant.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.

There is no evidence before the Tribunal to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations where it operates a business.
Accordingly, the requirement in r.5.19(3)(h) is met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Phoebe Dunn
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.

[2019] AATA 6537

6 December 2019

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