Employment with the Same Employer

Overview

In order to satisfy the 2 year requirement for the purposes of regulation 5.19(3)(c)(i)(A), nominators must demonstrate that the UC-457 visa holder has worked with the same employer for the whole period being considered. The term ‘employer’ refers to the entity/s that participates in the employer-employee relationship. An entity that changes structure, becoming a new discreet entity, may still be considered the same employer for the UC-457 visa holder provided they fall under the parameters outlined in Scenario 3 – more than one standard business sponsor.

There are three scenarios that would ordinarily satisfy this criterion:

The nominator has been the sole standard business sponsor for the nominee, and the nominee has only worked directly for the nominator for the whole 2 year period being considered.
The nominator has been the sole standard business sponsor for the nominee, and the nominee has worked for either a combination of the standard business sponsor and an associated entity/ies of the standard business sponsor or solely for an associated entity of the standard business sponsor (as allowed through theUC-457 8107condition).
The nominator has not been the sole standard business sponsor for the nominee in the period considered for the 2 year requirement, however the nominee can still be considered to have remained with the same employer.

Although there may be other scenarios that satisfy this criterion, policy advice for each of the above scenarios is as follows.

Scenario 1 – one standard business sponsor, no other employers

In the instance where the nominator has been the sole standard business sponsor for the nominee, and the nominee has not worked for any other entity at any stage of the 2 year period considered for the 2 year requirement, then this satisfies the ‘employment with the same employer’ criterion.

Scenario 2 – sole standard business sponsor, but work undertaken with associated entities

This includes instances where the nominator has been the sole standard business sponsor for the nominee, but the nominee has undertaken work with other entities. A person holding a UC-457 visa granted under 457.223(4) (standard business sponsorship) is permitted to work within the business activities of the entity that sponsored them or within the business activities of an entity related to the nominating entity under the provisions of s50AAA of the Corporations Act. This is based on condition 8107 condition, which would have been applied to the UC-457 visa – 8107(3)(a) refers..

For more information on where two entities are associated, refer to Related and associated entities under the Corporations Act.

Scenario 3 – more than one standard business sponsor

There may be applications for the Temporary Residence Transition stream where the nominator has not been the nominee’s sole standard business sponsor during the whole required 2 year period. In these cases, work undertaken with an entity other than the most recent standard business sponsor may still be considered towards the 2 year requirement if the nominator can demonstrate that the nominee has actively performed the duties of the position for the required 2 years despite a change of their employer. This may occur in situations where the current standard business sponsor has undergone business restructure/takeover/sale/closure and may have changed their ABN/ACN/name, which required a new standard business sponsorship approval. That is, there must be some connection between the most recent standard business sponsor and any previous standard business sponsor/s of the nominee to be counted towards the 2 year requirement.

When assessing this criterion for cases where there has been more than one standard business sponsor, delegates should consider the following three questions and, if they consider the answers to the three questions to be generally ‘yes’, may consider this criterion to be met:

Is the nominee still working in the same position, performs the same duties and has the same working conditions in the required 2 year period, regardless of the change of sponsor?
Does the nominee report to the same management structures?
Has the nominator retained the same business name and/or operations, but is considered to be a new legal entity?

The policy intent is to accommodate for UC-457 visa holders that apply for Temporary Residence Transition stream that have been affected by circumstances outside of their control, such as their employer undergoing a business restructure, takeover, sale or closure.

Some MRT cases

In trade jobs it is not absolutely essential that the employee be registered or licenced particularly if the visa holder has applied via holder a 457 visa and is being sponsored by the employer who employed him or her under the 457 visa. In Boutros 0902016 [2010] MRTA 830 (9 April 2010) the visa applicant was not a licensed plumber and initially the delegate found that he did not meet the requirements of clause 856.215 which states that:

“If it is mandatory in Australia that a person:
(a) hold a licence of particular kind; or
(b) hold registration of a particular kind; or
(c)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed under the appointment, the applicant is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body.”

Here the applicant was not a licensed plumber. But the evidence before the MRT was that a person could work as a plumber as long as the work was supervised by someone who was. Here is what the MRT found:

36.Reference has been made to s. 13 of the Home Building Act 1989 (NSW). This requires that an individual must not do any residential building work except if they are the holder of the endorsed contractor licence, a supervisor or trade persons certificate or an owner builder permit, authorising its holder to undertake that work, or under the supervision, and subject to the direction, of the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise that work. The application of s. 13 indicates that in NSW, it is not mandatory for a tradesperson such as a general plumber to hold a licence of a particular kind if they are undertaking that occupation under the supervision, and subject to the direction, of the holder of an endorsed contractor licence. The evidence provided to the Tribunal indicates that the applicant arrived in Australia in 2005 as the holder of a Subclass 457 Long Stay (Business) visa. The applicant was sponsored by Gold Plumbing Services Pty Ltd for the nominated position of general plumber. The evidence before the Tribunal indicates that the applicant has been working for Gold Plumbing Services Pty Ltd as the holder of a Subclass 457 visa since his arrival in Australia. The evidence before the Tribunal indicates that a Departmental delegate based on the applicant’s work references from Lebanon concluded that the applicant had the requisite skills for the nominated position of general plumber with regard to his subclass 457 visa.

In Automotive Holdings 0802017 [2008] MRTA 1385 (17 December 2008), the MRT demonstrated a flexible approach to job classifications. The nominated job was a Senior Finance Officer and the occupation was described as Financial Dealers and Brokers (not elsewhere classified) Australian Standard Classification of Occupations (ASCO) code 3212-79. The MRT said:

The responsibilities of the position are described as ‘consult with customers to determine finance and/or insurance requirements and advise on the products and services available to clients; obtain relevant approvals on all finance deals; oversee all deliveries of new and used vehicles; manage all financial exchanges between finance and insurance companies and dealership sales; assist and advise new and used vehicle sales departments in sales negotiations incorporating consumer finance and wholesale finance aspects; establish relationships with approved suppliers of finance and insurance products’.

In Zeng Guang Wang v Minister for Immigration and Multicultural Affairs [1998] FCA 30, Wilcox J held that a person’s occupation and the requirements for that occupation are questions of fact to be determined by the decision maker. The decision-maker can gain assistance from ASCO, but is not bound by the classifications contained in it. His Honour also commented that when determining an applicant’s occupation a decision-maker should consider how the composite of an applicant’s work duties, training and previous work experience would be described in Australia.

The Tribunal has considered the tasks of the position as described by the review applicant and has taken notice of the evidence given by the review applicant about the qualifications and experience expected of the person who is to undertake these tasks.
The Unit Group ASCO 3212 Financial Dealers and Brokers covers a diversity of ‘dealers’ and ‘brokers’, from money market traders to racecourse bookmakers. The review applicant conceded at the outset that the position as described by the review applicant and others does not encompass all of the tasks relevant to the occupation of Financial Dealers and Brokers nec, ASCO code 3212-79, but it covers sufficient of them to identify the position as ‘more like’ that of a Financial Dealers and Brokers nec than any other position described in ASCO. The Tribunal notes that the role of a ‘broker’ is usually associated with an independent advisor but there are cases where such a person may be an employee: for example an employee in a stockbroker’s office is also referred to as a ‘broker’, as may be an insurance agent employed by an independent advisory business. The review applicant provided a list of its finance associated businesses which included 5 finance companies dealing in 6 leasing/mortgage products, and 2 principal insurance companies dealing in 3 insurance products. The Tribunal considered the alternative, Credit Clerk ASCO Code 6141-13, but notes that the entry requirements are substantially lower, the tasks are more constrained to clerical work and involve less discretion and exercise of authority than is associated with ASCO code 3212-79. The Tribunal also puts some weight on the positive assessment by Vetasses of the qualifications of the nominated visa applicant for the position.

Need not be using one’s high level skills all the time

The case of Rajbinder Kaur Singh and Salindera and Co Pty Ltd v Immigration Review Tribunal and Minister of Immigration and Ethnic Affairs [1993] FCA 451; (1993) 117 ALR 687 (1993) 44 FCR 495 (10 September 1993) and the reasoning of Wilcox J places an interesting gloss on the definition of “highly skilled person”:

It appears that Salindera & Co Pty Ltd (or, perhaps, Mr Salindera personally) some years ago commenced to develop a tourist resort at Woolgoolga, near Coffs Harbour on the north coast of New South Wales. The facility was intended to evoke an Indian atmosphere……. In anticipation of the opening of the resort, Mr Salindera travelled to India in 1988. He wished to recruit an Indian dancer to perform at the resort. Mr Salindera interviewed a number of people trained in classical Indian dancing and selected the first applicant. He told the Tribunal that he chose the first applicant because she was a talented dancer and had a good command of English. The Tribunal accepted evidence that the first applicant studied Indian dancing over a four-year period concluding in June 1988, apparently at an institute in Bombay. The first applicant held a certificate as to her training. Mr Karas described the type of dancing which the first applicant studied as “the specialised Kahtak classical dancing of Northern India”. He said that she regarded herself as a professional dancer. He referred to evidence, I think from Mr Salindera, “that the Kahtak dancing of North India is similar to western classical ballet dancing and is highly skilled”. 497¶1

The first applicant came to Australia about the beginning of 1989….. The resort eventually opened in September 1989. Since that time, the first applicant has regularly performed classical Indian dancing for the benefit of people visiting the resort. These people are mostly tourists, but Ms Singh gave evidence to the Tribunal of performing for school children who came to the resort to study Indian culture. The evidence is that the first applicant dances seven days a week during busy periods and five days a week at other times. The dance routine is apparently fairly short, being of some 10 or 15 minutes in duration, and the number of performances depends upon the number of people visiting the resort. Apparently, in busy periods it is common for there to be three performances a day; perhaps fewer at other times. 497¶2

The first applicant also assists in the management of the resort. Although she is very young (she was born only in 1969) she appears to be a capable person. The first applicant has managed the resort during overseas trips made by Mr Salindera. 497¶3

The basis upon which the first applicant sought a visa was that classical Indian dancing is a highly skilled art in which she had received four years training, and in which she has worked regularly in Australia over the last few years. She argued, therefore, that she came within the definition in reg 51(2); that the position she occupies, of which dancing is an integral part, is “a position in respect of a highly skilled occupation”. As I have said, Mr Karas found against the claim. 497¶4

As counsel for the Minister has pointed out, the right of appeal to this Court is on a question of law only. The Court is not entitled to substitute its own view of the facts. It is necessary to consider Mr Karas’ reasons in order to determine whether or not he fell into an error of law. 497¶5

Mr Karas set out in his reasons for decision a summary of the evidence pertaining to the first applicant. He also referred to advertising carried out by Mr Salindera, in Australia, in order to determine whether any Indian dancers were available in this country. That advertising proved unsuccessful. Mr Karas stated: 497¶6

“The advertisements referred to above were for `competent Indian classical dancers … for live entertainment shows’. Yet in fact the Indian dancing was only a small part of the duties performed by the applicant. In certain circumstances, the occupation of classical Indian dancer could be regarded as a highly skilled position. However in the circumstances of this case, as well as the exact nature of the activities performed by the applicant, the Tribunal is not prepared to find that the position and her duties constitute that of a highly skilled position. The duties performed by the applicant which involve assisting in many aspects of running the centre, indicates that she in fact is only engaged in dancing for a relatively minor part of her overall work day. The actual position carried out by the applicant does not appear to require the level of skill of a classical Indian dancer. Indeed, the position and level of skill appears to reflect that of a less than professional dancer who is used for tourist purposes at the Woolgoolga complex.

The Tribunal on the evidence was not entirely satisfied that the position as a dancer met the requirements of paragraph 51(1)(a) of the Regulations. Although elements of the job (dancing) required some skills, it is questionable if the `position’ is a highly skilled one. Indeed, the job position in this case was clothed as being one for a highly specialised and apparently `uncommon’ occupation in Australia. The reality of the position from the evidence appears quite different.

The Tribunal therefore concludes from the facts and circumstances of this case that the requirements of regulation 51 of the Regulations are not satisfied.”

With respect to Mr Karas, I find the reasoning in this passage difficult to follow. Mr Karas seems to have accepted that Indian classical dancing is a highly skilled art and that a person who is employed as an Indian classical dancer is employed in a highly skilled occupation. He stated that: “In certain circumstances the occupation of classical Indian dancer could be regarded as a highly skilled position.” He then contrasted those circumstances with the circumstances of this case, without specifying the relevant point of distinction. He said: “the Tribunal is not prepared to find that the position and her duties constitute that of a highly skilled position.” 498¶1

Mr Karas referred to the facts that the first applicant carried out duties other than dancing and that she was engaged in dancing for only a relatively small proportion of her work day. That statement accorded with the evidence. He then went on: 498¶2

“The actual position carried out by the applicant does not appear to require the level of skill of a classical Indian dancer. Indeed the position and level of skill appears to reflect that of a less than professional dancer who is used for tourist purposes at the Woolgoolga complex.”

I do not understand the foundation for these two sentences. The only evidence Mr Karas had as to the first applicant’s dancing was that provided by herself and her employer. As Mr Karas noted, Ms Singh regarded herself as a professional dancer, having successfully completed a four-year course in the art. Her employer continued to employ her as a dancer and spoke well of her in his evidence to the Tribunal. There was no evidence entitling Mr Karas to say, in effect, that she is not a good dancer, or does not dance at the level of skill required by a classical Indian dancer. I do not understand the significance of Mr Karas’ reference to her work being “used for tourist purposes”. There is no inherent conflict between the exercise of a classical dancing skill and the provision of entertainment for tourists. 499¶1

The only way in which I can make sense of this passage is to read it as a statement that Mr Karas accepted that Indian classical dancing is a highly skilled occupation, but that the first applicant’s position was not a “highly skilled position” because she only danced for a small portion of the day. This interpretation is reinforced by the next paragraph in the quoted passage. Mr Karas there said he was “not entirely satisfied” that the position met the requirements of par 51(1)(a) of the Regulations. (A question arises as to the standard of proof applied by Mr Karas. His choice of words was criticised by counsel for the applicants, who suggested that he was applying the criminal standard of proof. Counsel’s criticism is supported by the following sentence, in which Mr Karas says “it is questionable” if the position is a highly skilled one.) 499¶2

Mr Karas concluded with a comment that the position in this case “was clothed as being one for a highly specialised and apparently `uncommon’ occupation in Australia. The reality of the position from the evidence appears quite different.” This last comment conveys the suggestion of a degree of deception about the application; that Miss Singh held herself out as a dancer when, in fact, she was working as something else. But I am not willing to attribute that meaning to it. Such a suggestion is without any basis in the evidence. No allegation of deception was put to Ms Singh or Mr Salindera during the course of their evidence. 499¶3

Reading the reasons as a whole, the only conclusion I can reach is that Mr Karas took the view that it was fatal to her claim to come within reg 51(1)(a) that Ms Singh was only exercising her high skill for a minor portion of the day. 499¶4

If this was the approach taken by Mr Karas, it seems to me that he fell into an error of law. The question that Mr Karas had to ask himself was whether the position in which the applicant was employed was a “position in respect of a highly skilled occupation”; that is to say, was it a position requiring the engagement of a person having appropriate formal training and employment experience? If that question is answered in the affirmative, reg 51(1)(a)(ii) is satisfied. It is not necessary to show that the person will exercise the high skill associated with the formal training and experience during the whole working day. There are many occupations in which a highly skilled person spends a good deal of time doing routine work that a lesser skilled person could carry out equally well; but where it is essential to have a particular form of training in order to meet the exigencies of the job as they occur from time to time, perhaps only for a relatively small portion of the time. If it is necessary for the person to have the requisite skills in order to occupy the position, this is enough to satisfy the regulation. It is not necessary to show that the skills are called upon for a major proportion of the working day. 499¶5

There is a specific regime for cancelling visas under the RSMS scheme.

Importantly the cancellation regime is discretionary NOT mandatory.

S.137Q states:

Section 137Q. Cancellation of regional sponsored employment visas

EMPLOYMENT DOES NOT COMMENCE

(1) The Minister may cancel a regional sponsored employment visa held by a person if:

(a) the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and

(b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.

EMPLOYMENT TERMINATES WITHIN 2 YEARS

(2) THE MINISTER MAY CANCEL A REGIONAL SPONSORED EMPLOYMENT VISA HELD BY A PERSON IF:

(a) the Minister is satisfied that:

(i) the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and

(ii) the employment terminated within the period (the required employment period) of 2 years starting on the day the person commenced that employment; and

(b) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.

REGIONAL SPONSORED EMPLOYMENT VISA

(3) IN THIS SECTION:

regional sponsored employment visa

means a visa of a kind that:

(a) is included in a class of visas that has the words “Employer Nomination” in its title; and

(b) is prescribed by the regulations for the purposes of this definition.

Ss 137R to 137T provide for the appropriate notices to be given to a visa holder in order to properly activate the cancellation procedure.

The PAM on this issue states:

· 8 GENUINE EFFORT

For cancellation to occur, the delegate must be satisfied that the visa holder did not make a genuine effort to commence employment or to complete the required two year employment period.

In assessing whether the visa holder has made a genuine effort, the delegate must consider:

� the visa holder’s reasons and/or circumstances leading to the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances)
� the possibility that the visa holder, in collusion with the employer, does not commence work within the six month period or resigns shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia
� in the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment (generally, periods of more than 12 months may be considered as a genuine effort) and
� any other matter which is relevant to the commencement or termination of the employment.

If terminating the employment on reasonable grounds, a visa holder would be expected to give their employer appropriate notice, including the opportunity to make a counter offer in circumstances where a more attractive employment opportunity exists in the regional area.

A situation created by the visa holder that results in termination of their employment would not be considered a genuine effort.

A visa holder is unlikely to be assessed as failing to have made a genuine effort where the failure to commence or complete the two year employment period was because of a situation beyond the visa holder’s control. Examples include:

� the position was not filled or did not remain viable due to a serious downturn in business activity or
� financial loss, bankruptcy or closure of the business.

Delegates are also expected to consider any hardship that the visa holder or members of the family unit may suffer if their visa is cancelled.

· 9 UNSCRUPULOUS EMPLOYERS

Cancellation of the visa under s137Q can apply when the visa holder terminates their employment on their own volition or the visa holder was dismissed by the employer, if the delegate believes the visa holder did not make a genuine effort to remain in their employment for at least two years. For example, a visa holder may have been dismissed because they were not working according to the expectations of the employer based on the visa holder’s skills and/or experience, or the visa holder may have deliberately damaged or sabotaged the employer’s business to cause the dismissal.

When determining whether the visa holder has made a genuine effort, the delegate should consider whether the reasons provided by the visa holder and/or the employer are valid, for example, if the visa holder was dismissed because of under-performance, were the employer’s expectations reasonable?

There is also a need for delegates to be alert against possible claims by an unscrupulous employer that the visa holder left their employ without making a genuine effort.

The decision to cancel the visa is between the department and the visa holder, and based on the facts relating to the period of employment and the reason why they did not complete their work contract with the employer. While an employer may provide information that an employee has not made a genuine effort, the employer has no further involvement in the process.

As one can see the mandatory cancellation regime for RSMS is rather benign. In practice the writer observes that it tends to be activated if there has been a complaint from an employer who had an employee ‘poached’ or there has been some serious dispute between employer and employee. However very few visas have been cancelled under this regime.

Of course an RSMS visa can be cancelled on other grounds (eg false information).

In Visetsiri 1109839 [2012] MRTA 1143 (24 April 2012) the MRT overturned an RSMS visa cancellation. The RSMS visa holder ceased work with the employer soon after the grant of the visa. In a rather complex factual situation, it seemed that there was a personality dispute with the employer which led to the visa holder being dismissed. Hence he ceased being employed for reasons beyond his control and had made a genuine effort.

MISCELLANEOUS

In researching this paper the writer came across an interesting case where a migration agent promised to refund fees if an applicant was unsuccessful in obtain permanent residence through the employer nomination scheme. The case was Tsang Chi Ming & ors v Uvanna Pty Ltd (trading as North West Immigration Services) & anor [1996] 859 FCA 1 (26 September 1996) and Hill J was unimpressed with the migration agent as is seen from these opening remarks:

It is hard to imagine a person more vulnerable than one who has left his or her own country and gone to another in the hope of residing there permanently. But there are some who would seek to take advantage of that vulnerability for their own profit. The respondents are alleged to be such persons.

All but three of the applicants with which the present cases are concerned, was a national of the Chinese People’s Republic. Each of them had found their way to Australia. The exceptions were citizens of Hong Kong. Each of them wished to reside permanently here. Each of them, however, in his or her own way came within the clutches of the second respondent, Leslie William Alexander (“Mr Alexander”), typically as a result of having seen an advertisement placed in Chinese language publications. The first respondent, Uvanna Pty Ltd (“Uvanna”), carried on business under a registered business name, North West Immigration Services. So far as appears, no-one associated with Uvanna, and that includes Mr Alexander, had any special qualification to perform the services of a migration agent. Legislation requiring registration of migration agents did not reach Mr Alexander who was exempt from it under a “grandfather” clause.

Each of the applicants (with the exception of Lin Qiang), as a result of negotiations with Mr Alexander, entered into a contract with Uvanna under which, for quite large fees (typically $20,000 or more), Uvanna agreed to act as a migration agent to secure permanent resident status to the applicants. As will ultimately be seen, Uvanna often did nothing at all in the way of assisting the applicants, often would not have been in a position to assist the applicants because the applicant did not satisfy the relevant criteria for permanent residency at the time, guaranteed results or money back (at least in certain circumstances), but refused when pressed so to do and, it must be said, took advantage of the vulnerability of the applicants to demand fees many times greater than were charged by at least a firm of solicitors practising in the field.

Here is what Hill J decided in relation to Mr Tang:

I find that there was a breach of the term of the contract in writing, namely, that Uvanna would provide the agreed service to Mr Tsang. The contract provides, as I have held, for fees paid to be refunded in the event that Uvanna was unsuccessful, as has proved to be the case. Further, I find that there was a representation made by Mr Alexander that the application would be successful, which was an application as to future events. As no evidence has been adduced by Mr Alexander, he has not satisfied the burden of showing that at the time the representation was made it was not unreasonable. There is thus a breach of s 52 of the Trade Practices Act 1982 made out.

In the circumstances, therefore, whether the matter is put as a claim for a refund under the contract, a claim for breach of contract sounding in damages or a claim for damages based on s 52 of the Trade Practices Act, Mr Tsang is entitled to recover from Uvanna the sum of $21,000 paid by him.

As Mr Alexander was the person who made the representation and thus a person knowingly concerned in a contravention of the Trade Practices Act within the meaning of s 79 of that Act, I would, in accordance with s 82, order Mr Alexander to pay by way of damages to Mr Tsang, the sum of $21,000 as the damage suffered in contravention of the Trade Practices Act:

All the clients were successful.

[1] See the ASIC website http://asic.gov.au/ for a list.

[2] Subclass 186 – Employer Nomination Scheme

[3] This limitation also applies to the occupation of ‘cook’ ANZCO 351411.

[4] This was amended by the Migration Legislation Amendment Regulation 2013 (No. 3)

[5] IMMI 12/059