Migration Act 1958, ss 245, 360

Migration Regulations 1994, rr 1.13, 5.19

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 June 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).
2. The applicant applied for approval on 7 December 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 Direct Entry nomination stream.
4. The delegate refused the application on the basis the applicant's nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate found the application for approval had not identified a need for the nominator to employ a paid employee to work in the full time position under the nominator's direct control
5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
6. The applicant was represented in relation to the review by its registered migration agent.
7. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

1. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

1. Regulation 5.19(4)(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 need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.
2. Having regard to the Department file, the application was made on the approved form accompanied by the prescribed fee. The application form includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1).
3. The application to the Department was accompanied by an employment contract between the nominator and nominee, and a business organisation chart including the nominee. On this basis I consider that the applicant identified a need to employ the nominee as a paid employee in the position under their direct control. I have considered the genuineness of that identified need further below.
4. Accordingly, the requirement in r.5.19(4)(a) is met.

Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

1. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia.
2. I have had regard to the material on the Department and Tribunal files. I have had regard to the searches of ASIC and the ABN register conducted last month by the Tribunal to find that the applicant is actively and lawfully operating. I have also taken into account the Business Activity Statements and the annual reports of the Consolidated Publicly Listed entity PS&C Ltd, now known as Future First Technologies Ltd as well as the explanatory statement from the parent company's CFO regarding tax returns and the consolidated group's tax obligations. Having read this material and searched further online, I accept that the applicant is part of a group of companies and that Systems and People is engaged in recruitment and consulting services to unrelated businesses primarily in the provision of SAP and other business optimization software which supports businesses in their timesheet, payroll, invoicing etc functions.
3. Having regard to the annual report I accept the submission that the applicant is wholly owned by Future First Technologies Ltd, trading as PS&C Group, a publicly listed company on the ASX, the revenue of which exceeded $50M in the most recent financial year.
4. Having regard to the information before me I find that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
5. Accordingly, the requirement in r.5.19(4)(b) is met.

1. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
2. Labour hire is not defined but having regard to the definition in Victoria, the State in which the nominator is headquartered and the nominated position based, the Labour Hire Licensing Act 2018 (Vic.) at s. 7 provides that a labour hire provider is a business that has an arrangement in place with one or more individuals to supply the individuals to perform work in and as part of a host's business or undertaking and is obliged to pay the individual for the work performed for the host.
3. Having regard to the information before me, the nominator provides short, medium and permanent hiring for IT and especially payroll areas of unrelated businesses. The information suggests the nominator is a substantial enterprise and requires several employees of varying skill and specialisation to attend to management of its affairs.
4. Even if this assessment is incorrect and the nominator is defined as involved in labour hire, I find having regard to the employment contract, the organisation chart and the samples of work that the nominated position is not the equivalent of the product of the nominator and is within the business activities of the nominator.
5. Accordingly, the requirement in r.5.19(4)(c) does not apply.

Term of employment of the visa holder: r.5.19(4)(d)

1. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
2. I have had regard to the employment contract signed in 2017 which does not have an end date. I have also had regard to the pay rise letter providing the nominee is to be paid $110, 000 per year from 1 January 2020 to find that there is a basis to infer that the nominee will be employed in the nominated position for at least two years full time with the possibility of an extension.
3. Accordingly, the requirement in r.5.19(4)(d) is met.

No less favourable terms and conditions of employment: r.5.19(4)(e)

1. Regulation 5.19(4)(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.
2. I have had regard to the employment contract and the salary increase letter issued January 2020 as well as the provided position description. I have had regard to the provided information from PayScale for experienced software engineer salaries in the location in which the position is based. This demonstrates that an average base salary for this person would be $98, 197 with a range from $75, 000 to $135, 000. Having regard to the nominee's current pay of $110, 000 including superannuation, I consider this to be within the range and slightly above the median.
3. I have had regard to the employment agreement for the nominee. The terms and conditions appear to be standard for a professional position and I consider that these terms and conditions are 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.
4. Accordingly the requirements of r.5.19(4)(e) are met.

No adverse information known to Immigration: r.5.19(4)(f)

1. Regulation 5.19(4)(f) 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.
2. There is no adverse information known to the Department about the nominator or a person 'associated with' the nominator before me.
3. Accordingly the requirements of r.5.19(4)(f) are met.

Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

1. Regulation 5.19(4)(g) requires that the applicant 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.
2. There is no information before me to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
3. Accordingly, the requirements of r.5.19(4)(g) are met.

Tasks of the position, genuine need for the position and training requirements r.5.19(4)(h)

1. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring in this case that:
   • the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister (see legislative instrument IMMI 17/080), the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met.
2. Having regard to the information on the Department and Tribunal files, I find that the tasks to be performed in the position will be performed in Melbourne, Australia. Those tasks as set out in the position description and the samples of work correspond to the tasks in ANZSCO of a computer network and systems engineer, 263111 which is specified in legislative instrument IMMI 17/080. There are no inapplicability provisions.
3. The submission provided to the Tribunal states that under the supervision of the client director, the nominee is responsible for performing tasks and projects related to the consulting strategies. The submission sets out these responsibilities in more detail. The submission goes on to state that:

The duties to be performed by the nominated person in this position are crucial to the efficient operation of Systems and People. The position is mid-level position in the organisation hierarchy, so the Nominee's particular skills and qualification will ensure the efficient delivery of the business services to key clients such as the National Australian Bank (NAB) amongst others.

The Nominee's experience is needed by the company to ensure that they maintain their reputation as the leading recruitment and consulting professionals in Melbourne as well as attracting new clients. Employing an experienced consultant with relevant experience for the nominated position ensures that the company continues to provide their services successfully.

1. I have had regard to the extract from the business website confirming the current business operations within the PS&G Group, the detailed position description outlining the duties and responsibilities of the nominated role, the organisational chart outlining the different business units, key employees and the nominated position, as well as work samples, including emails between the nominee and other employees of the business and power point presentations relating to projects on which the nominee has worked.
2. Having regard to the information before me, it appears clear that the nominator engages in specialised IT services including recruitment but also consulting on business solutions. It appears clear to me that the business is actively trading and generating business and that, within the larger umbrella of the parent company is profitable. It also appears from the samples of work, the fact the nominee has gained a pay increase last year, and the job description, that there is a genuine need to employ a computer network and systems engineer, 263111. Having regard to the information before me I accept that the nominee is a skilled computer network and systems engineer who has been employed now for a considerable period by the nominator in the position under the nominators direct control. Having regard to all of the information before me I find that the nominator has established that there is a genuine need for the nominator to employ the person identified under r.5.19(4)(a)(ii) as a paid employee, to work in the position under the nominator's direct control.
3. Having regard to the information before me it is clear that the nominator's business has operated for at least 12 months. Having regard to legislative instrument IMMI 17/045 specified for the purpose of this sub-sub-subparagraph and the information in the nomination application I find that the nominator has demonstrated at the time of nomination recent expenditure by the business to the equivalent of at least 1% of the payroll of the business in the provision of training of employees of the business who are Australian citizens and Australian permanent residents in the form of expenses for undertaking a formal course of study and therefore meets training benchmark B.
4. Accordingly the requirements of r.5.19(4)(h) are met
5. 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.

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

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19 Approval of nominated positions (employer nomination)

(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.

(4) The Minister must, in writing, approve a nomination if:

(i) is made in accordance with subregulation (2); and

(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator's direct control; and

(i) is actively and lawfully operating a business in Australia; and

(c) for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses - the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

(i) the employee will be employed on a full-time basis in the position for at least 2 years;

(ii) the terms and conditions of the employee'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:

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

(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

(g) 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

(A) the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

(AA) there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator's direct control;

(AAA) the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

(I) the nominator's business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

(II) the nominator's business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

(B) there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator's direct control;

(C) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

(D) the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

(DA) the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

(E) the business operated by the nominator is located at that place;

(I) specified by the Minister in an instrument in writing for this sub-subparagraph; and

(II) located in the same State or Territory as the location of the position;

has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).