K KAUR & S SINGH (Migration) [2019] AATA 6376 (22 October 2019)

Last Updated: 19 February 2020

K KAUR & S SINGH (Migration) [2019] AATA 6376 (22 October 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: K KAUR & S SINGH

CASE NUMBER: 1712444

DIBP REFERENCE(S): BCC2016/4330596

MEMBER: John Cipolla

DATE: 22 October 2019

PLACE OF DECISION: Sydney

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

Statement made on 22 October 2019 at 9:00am

CATCHWORDS
MIGRATION – application for approval of nomination of position – Temporary Residence Transition stream – actively and lawfully operating a business – financial documents and oral evidence of business operations – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(3)(b)(ii)

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 5 June 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).
2. The applicant applied for approval on 22 December 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)(b)(ii) of the Regulations because the delegate was not satisfied that the applicant was actively and lawfully operating a business.
5. The applicant appeared before the Tribunal on 16 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
6. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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.

The application is compliant: r.5.19(4)(a)

9. Regulation 5.19(3)(a) requires that the application for approval is made in accordance with subregulation(2) and identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control. It 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 need for the nominator to employ a paid employee to work in the position under their direct control.
10. From the Department's file, the Tribunal is satisfied that the application was made on the approved form and was not required to be accompanied by a prescribed fee as it relates to a regional employer. It is further satisfied as to the completion of a written certification relating to conduct that contravenes s.245AR(1) which was signed by the nominator.
11. The Tribunal further notes that the nomination application form identifies a nominee, Mr Gurtek Singh, for the nominated occupation of Mixed Crop Farmer, a paid position. The Tribunal is satisfied from the position description and information in the application form that the nominated position is under the direct control of the applicant.
12. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(a) is met.

Nominator is actively and lawfully operating a business in Australia: r.5.19(3)(b)

13. 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.
14. The Tribunal is satisfied from the detailed documents provided to it at review which include the most recent business activity statements of the applicant’s business, partnership tax returns for 2017, 2018 and 2019 financial years, and a statement from Mr Guprul Dhingra the applicant’s accountant dated 24 July 2019 that the applicant is actively, lawfully and directly operating a business in Australia. In addition to this, Mr Sukhjinder Singh on behalf of the business gave comprehensive evidence to the Tribunal at review pertaining to the operation of the business and with regard to its active and ongoing operation.
15. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(4)(b) is met.

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

16. 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.
17. As outlined above, the applicant has produced evidence that the nominee was sponsored successfully by the applicant for a Subclass 457 visa, working full-time in the Mixed Crop Worker position from November 2013, and has continued to be employed since.
18. Therefore, 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 2 years in the 3-year period immediately before this nomination application was made.
19. 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)

20. 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.
21. The Tribunal has before it the offer and terms and conditions of employment signed between the applicant and the nominee which is dated 21 November 2016. The summary of the offer indicates that the basis of employment is ‘Permanent and on-going’ and the fixed remuneration was $54,000 ($54,000 salary plus $5130 in superannuation).
22. The Tribunal also has had regard to the financial statements, the BAS and PAYG payment summaries provided at review.
23. The Tribunal based on this evidence is satisfied that the nominator has the financial capacity to maintain the nominee's employment as they have done so since 2013.
24. On the basis of the supporting documents the Tribunal is satisfied that the nominee will be employed on a full-time basis for at least 2 years on terms and conditions that do not exclude the possibility of extending the period of employment.
25. 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)

26. 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.
27. The Tribunal notes that Payscale.com.au indicates that the average pay for a Mixed Crop Worker in Australia is $21.50 per hour which equates to a gross salary of $49,428 per hour.
28. The nominee’s Terms of Employment indicates that he was offered $54,000 base salary per annum for an average of 38 hours per week, which is equivalent to $27.32 hourly rate.
29. On the basis of the information before it, the Tribunal is satisfied that the nominee's base salary is within the appropriate range of the salary that is normally paid to a Mixed Crop Worker.
30. The Tribunal also notes that the nominee was granted the Subclass 457 visa in 2013 on the basis of the base salary and the Department was therefore satisfied that the base salary was no less favourable than that which would be provided to an Australian citizen or permanent resident performing equivalent duties in the same location.
31. Accordingly, the requirement in r.5.19(3)(e) is met.

Training commitments and obligations: r.5.19(3)(f)

32. 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.
33. The applicant has provided evidence that in relation to past standard business sponsorship obligations, it was obliged to meet the requirements of Training Benchmark A and that this benchmark was satisfied.
34. On the basis of the written evidence before it, the Tribunal is satisfied the business has fulfilled the commitments relating to training requirements during the period of the nominator’s first approved sponsorship period.
35. The evidence before the Tribunal indicates that in terms of the business meeting ongoing training requirements the business has made a 2% contribution to an industry training fund and on the basis of this evidence meets the requirements of Training Benchmark A.
36. Accordingly, the requirement in r.5.19(3)(f) is met.

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

37. 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.
38. There is no adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator.
39. Accordingly, the requirement in r.5.19(3)(g) is met.

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

40. 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.
41. There is no evidence before the Tribunal to indicate that the applicant has not complied with workplace relations laws in the locations in which it operates a business and employs staff.
42. Accordingly, the requirement in r.5.19(3)(h) is met.

CONCLUSION

43. 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

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

John Cipolla
Senior Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval 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.