Z Industries Pty Ltd (Migration)

Z Industries Pty Ltd (Migration) [2020] AATA 3233 (17 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Z Industries Pty Ltd
CASE NUMBER:  1808144
DIBP REFERENCE(S):  BCC2017/1117515
MEMBER:Amanda Mendes Da Costa
DATE:17 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 17 June 2020 at 10.17am

CATCHWORDS
MIGRATION – nomination –Temporary Residence Transition nomination stream – applicant has obtained a new standard business sponsorship approval standard business sponsor – no training obligations or commitments required– nominator was employed in the nominated position in a full time capacity –decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, rr 1.13, 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 6 March 2018 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 22 March 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 (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).
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)(i)(A) and (B) of the Regulations because the applicant did not meet its training requirements.
Mr Stefano Zoiti, a director of the applicant, appeared before the Tribunal on 10 June 2020 to give evidence and present arguments.
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. 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 was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent.
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.
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 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 relevant s.245AR(1) certification was provided in the application form.
The application identifies the nominee (Gurneet Singh), the holder of a Subclass 457 visa which was granted on the basis of satisfying cl.457.223(4) and identifies an occupation (Transport Company Manager- ANZSCO 149413) that is listed in the ANZSCO dictionary and has the same 4 digit code as the occupation carried out by the Subclass 457 visa holder.
The Tribunal is further satisfied that the application identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.
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 applicant was most recently approved as a standard business sponsor on 17 July 2018 until 17 August 2023 for a period for five years. Departmental records indicate that the applicant was the sponsor who last identified the nominee, who is the relevant 457 visa holder, in a nomination made under a s.140GB of the Act.
Based on the financial documents (including profit and loss statements, business activity statements, ASIC records and bank statements) and the oral evidence of Mr Zoiti, the Tribunal is satisfied that the applicant is lawfully operating a business in Australia. The Tribunal is further satisfied that the applicant was not granted its most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.689i).
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 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.
In this case, r.5.19(3)(c)(i) is the relevant provision. The nomination was lodged on 22 March 2017. The nominee was granted a subclass 457 visa on 24 February 2015 to work for the applicant in the nominated occupation of Transport Company Manager ANZSCO 149413. The visa ceased on 24 February 2019.
The applicant has provided to the Tribunal PAYG summaries for the nominee, Australian Taxation Office issued Notices of Assessment for the 2014, 2015 and 2016 financial years in support of its oral evidence that the nominee has been employed in the position of Transport Company Manager since July 2014. The applicant also provided a contract signed on 15 March 2017 by the applicant and nominee, which sets out the nominee’s duties as a Transport Company Manager.
On the basis of the employment contract and the oral evidence at the hearing, the Tribunal is satisfied that the nominee has been employed as a Transport Company Manager by the applicant since 2014. On the basis of all the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in the position in Australia as the holder of a Subclass 457 visa for at least two years in the three year period immediately before the nomination application was made.
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 2 years on terms that do not expressly preclude the possibility of an extension.
The Tribunal has considered the contract of employment for the nominee, dated 15 March 2017. The Tribunal accepts the oral evidence of Mr Zoiti that this contract has not been cancelled. The Tribunal notes that this contract shows that the proposed annual salary for the nominee is $55,000.00 exclusive of superannuation. The terms and conditions of the contract provide that the nominee will be employed on a full-time basis for at least two years and do not expressly exclude the possibility of extending the period of employment.
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.
Based on the above information, including the nominee’s proposed salary and leave and sickness entitlements, the Tribunal is satisfied that the terms and conditions applicable to the position will be no less favourable than those that would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location. The Tribunal is further satisfied that the terms and conditions of the nominee’s employment are consistent with the Fair Work Act 2009 and the National Employment Standards.
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 Tribunal notes that on 17 July 2018 the applicant was approved as a standard business sponsor for the period 17 July 2018 to 17 August 2023. A copy of the notice of approval was provided to the Tribunal by the applicant.
In circumstances where an applicant has obtained a new standard business sponsorship approval on or after 18 March 2018, there are no training obligations or commitments required by an applicant for the purposes of satisfying the sponsorship approval criteria under r.2.59. This is because from 18 March 2018 the requirements for training under r.2.59(d) and (e) were repealed[1] with the effect that these criteria no longer apply to live applications for approval as a standard business sponsor from that date.
[1] Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
Given that the applicant’s most recent approval as a standard business sponsor was made on 17 July 2018, the Tribunal is satisfied there are no training obligations or commitments required by it for the purpose of satisfying the sponsorship approval criteria under r.2.59.
Accordingly, the Tribunal finds that 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 suggest that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator. In his oral evidence, Mr Zoiti confirmed that there is no adverse information known to the Department about the company, himself or any other person associated with the company.
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 which suggests that the applicant has an unsatisfactory 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.
In his oral evidence, Mr Zoiti confirmed that the applicant has and is compliant with work-place relations laws.
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.
Amanda Mendes Da Costa
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.

[2020] AATA 3233

17 June 2020

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Immigration

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Procedural Fairness

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