AROUND TRANSPORTS PTY LTD (Migration) [2020] AATA 4094 (30 July 2020)

Last Updated: 15 October 2020

AROUND TRANSPORTS PTY LTD (Migration) [2020] AATA 4094 (30 July 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: AROUND TRANSPORTS PTY LTD

CASE NUMBER: 1800096

HOME AFFAIRS REFERENCE(S): BCC2017/2333481

MEMBER: Karen McNamara

DATE: 30 July 2020

PLACE OF DECISION: Sydney

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

Statement made on 30 July 2020 at 2:34pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – nominee worked in nominated position as subclass 457 visa holder for two years – comprehensive financial records and oral evidence – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 376

Migration Regulations 1994 (Cth), r 5.19(3)(c)(i)(A)(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 and Border Protection (the delegate) on 14 December 2017 to reject the application by Around Transports Pty Ltd (the applicant) 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 30 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).
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 did not meet the requirements of r.5.19(3)(c)(i) (A)(II) of the Regulations because the applicant did not demonstrate that the nominee has worked in the nominated position of Transport Company Manager as a Subclass 457 visa holder for at least 2 years.
5. The applicant applied to the Tribunal on 2 January 2018 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
6. On 2 July 2020, the applicant represented by Mr Muhammed Mehcur (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 Abdul Baseer Shahbaz (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1802884). The related matters were heard concurrently in a combined hearing.
7. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
8. 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.
9. At the conclusion of the hearing, the Tribunal invited the applicant and nominee to provide further documentation including copies of the applicant’s Business Activity Statements (BAS) Nominee’s PAYG’s, business and nominee’s bank statements, superannuation statements and Workers Compensation Certificate of Currency.
10. The applicant provided to the Tribunal the above-mentioned documentation on 8,10,13 and 28 July 2020.
11. 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

12. 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.

Non-Disclosure Certificate (s.376 of the Act) – Invitation to comment

13. At the hearing the Tribunal told the applicant that a non-disclosure certificate has been issued pursuant to s.376 of the Migration Act 1958 (the Act) in relation to certain material which is on the Department’s case file.
14. The Department has sought to restrict the disclosure of information on the Department’s file. The reason stated for non-disclosure is that to disclose the information would be contrary to public interest because the nature of the information is internal working papers associated with the processing of the applicant’s application as a standard business sponsor. The information includes internal departmental correspondence containing internal checks, notes and data base information.
15. The Tribunal considers that the s.376 certificate is valid and provided the applicant with particulars of the information to enable them to comment on the validity of the certificate and whether the information should be released.

The applicant accepted that the certificate is valid and did not request the information to be released.

Background

16. ASIC records provided by the applicant to the Tribunal, show that the business was registered on 29 April 2010. The applicant told the Tribunal that the business is located at Smithfield NSW. The applicant operates a metropolitan freight business providing refrigerated wholesale produce to food outlets in the Sydney metropolitan area including KFC, Oporto and Red Rooster. The business currently employs between 2 to 3 full time staff and engages contractors.
17. On 30 June 2017, the applicant lodged an application for an employer nomination for the position of Transport Company Manager (ANZSCO 149413) under the Temporary Residence Transition nomination stream. The nominated salary is $56,000 per annum.
18. The applicant sponsored Mr Abdul Baseer Shahbaz for his Subclass 457 Visa, which Department records confirm that he held at the time of the nomination application.
19. Department records show that the applicant’s most recent approval as a standard business sponsor (SBS) is 6 April 2020 to 6 April 2025. Prior to this approval the applicant was approved as a SBS from 9 April 2013 to 19 April 2016.
20. Department records show that the nominee was granted a 457 Visa on 12 February 2015. Information before the Tribunal shows that the nominee commenced full time employment with the applicant on 22 June 2015, in the position of Transport Company Manager.
21. 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.
22. The Tribunal discussed with the applicant the requirements of r.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: r.5.19(3)(a)

23. 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.
24. 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 application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly, the requirements of r.5.19(3)(a)(i) are met.
25. The application for approval identifies Mr Abdul Baseer Shahbaz, who according to Department records, was granted a subclass 457 Visa on 12 February 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.
26. The occupation identified in the application is Transport Company Manager (ANZSCO 149413). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee, the nominee’s contract of employment, payroll records 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.
27. As the criteria in r.5.19(3)(a)(i), r.5.19(3)(a)(ii) and r.5.19(3)(a)(iii) are satisfied, accordingly the requirements in r.5.19(3)(a) are met.

Status of the nominator: r.5.19(3)(b)

28. 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.
29. The Department’s records confirm the applicant was granted the most recent business sponsorship in the period 6 April 2020 to 6 April 2025.
30. The applicant has provided to the Tribunal copies of 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 operating a refrigerated freight transport service. ASIC records before the Tribunal confirm that the business name is registered.
31. Based on ASIC information, financial documents, workers compensation insurance details, customer delivery details 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.
32. Given the above, the requirement in r.5.19(3)(b) is met.

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

33. 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.
34. The delegate refused the application on the basis the applicant’s nomination did not demonstrate that the nominee had worked in the nominated position as a subclass 457 visa holder for at least 2 years. The Tribunal has formed a different view and accepts the evidence presented by the applicant that the nominee has been employed in the position of Transport Company Manager of which the nominee holds the subclass 457 visa and that he worked a total of at least 2 years in this position.
35. The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application. The Tribunal has had the benefit of discussing with the applicant and the nominee details of the nominee’s employment with the applicant and the duties undertaken by the nominee.
36. The evidence before the Tribunal indicates the nominee was granted a subclass 457 visa on 12 February 2015 and has continued to be employed by the applicant in the position of Transport Company Manager since 25 June 2015. The applicant has provided copies of payroll records from 2 July 2015 to 24 June 2020, the nominee’s ATO PAYG Summaries (1 July 2015 to 30 June 2020, payslips, bank statements and Notice of Assessments confirming that the nominee has been paid a full time salary by the applicant since 2015.
37. Based on this evidence, the Tribunal is satisfied the nominee has been employed in a full time capacity by the applicant as a Transport Company Manager, since June 2015 whilst holding a Subclass 457 visa. 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 this nomination application was made. The requirements in r.5.19(3)( c)(i) have therefore been met.
38. 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)

39. 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.
40. The Tribunal notes that the occupation, for which the nominee held the Subclass 457 Visa, is that of Transport Company Manager (ANZSCO 149413). 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).
41. The Tribunal examined the financial information submitted by the applicant. The business’s 2019 financial year BAS returns record sales of $1,779,748 and salary and wages expense $405,741. The business’s 2019 financial statements record a net operating profit of $111,513 with net equity of $80,947.
42. In considering whether the business has the financial capacity to pay a full time salary of $56,000 per annum to the nominee for two years, the Tribunal has taken into consideration evidence before. The Tribunal has afforded weight to information before it including the applicant’s financial statements, business tax returns, BAS returns and bank statements, which show the applicant has met payroll and operating costs.
43. The Tribunal has also taken into consideration the nominee has been employed by the applicant since 2015. The business and nominee’s bank account statements, PAYG’s and applicant’s payroll records, support the nominee has received remuneration of the nominated salary of $56,000 per annum.
44. Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to maintain the nominee’s full time employment as they have done since the nominee commenced sponsorship and employment with the applicant in June 2015. Accordingly, the requirement in r.5.19(3)(d)(i) is met.
45. The Tribunal has had regard to the most recent contract of employment for the nominee dated 23 March 2020. The contract, which sets out the terms and conditions of employment, indicate that the period of employment is contingent upon the granting of a subclass186 visa. At the hearing, the nominee advised the Tribunal that the business would employ the nominee indefinitely for as long as the nominee wished to stay in their employ. The contract stipulates the base salary is $62,000 per annum exclusive of superannuation with hours of work 38 hours per week. There is no term excluding an extension of the contract.
46. The Tribunal is satisfied based on the employment contract dated 23 March 2020 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. 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: r.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 23 March 2020 sets out the nominee’s terms and conditions of employment and indicates that the nominee’s base salary is $62,000 per annum, exclusive of superannuation with hours of work 38 hours per week. The nominee’s leave entitlements include annual, sick and long service leave as per National Employment Standards.
50. The Tribunal has received payroll records, payslips and ATO PAYG summaries and Notice of Assessments confirming that the nominee since 2015 has been paid the nominated salary $56,000 per annum. Superannuation information provided to the Tribunal support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on this 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: r.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 6 April 2020 to 6 April 2020.
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)).
56. For subclass 482 nomination applications lodged on or after 12 August 2018, sponsors (or individuals who have applied to become a standard business sponsor or a labour agreement sponsor) must pay the applicable nomination training contribution charge (referred to as a contribution to the SAF or the ‘SAF levy’). The nomination training contribution charge is payable in full at the time of lodging a nomination application. The payment of a SAF levy replaces the training benchmark requirements and obligations relating to training requirements for approval as a standard business sponsor.
57. The Tribunal finds that as the applicant’s most recent sponsorship approval as a standard business sponsor was on 6 April 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.
58. Accordingly, the requirement in r.5.19(3)(f) is met.

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

59. 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.
60. There is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.
61. Accordingly, the requirement in r.5.19(3)(g) is met.

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

62. 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.
63. 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.
64. Accordingly, the requirement in r.5.19(3)(h) is met.
65. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19(3) for approval of the nomination of the position in Australia.

DECISION

66. 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

5.19 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.

---

^[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).