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Is the agent's gateway really helpful?
Dear All,
It is my view, that policy measure requiring 6 month of trading for start up business nominating RSMS visa applicant is illegal. PAM 3 sets up additional requirements outside legislative framework. Has anyone challenged it before ?
DIBP has obvious difficulties with interpreting their own policy refusing to answer simple question, asked via agent's gateway . See below :
From: Sponsored Skilled [mailto:This email address is being protected from spambots. You need JavaScript enabled to view it.
]
Sent: Friday, 7 February 2014 1:31 PM
To: Piotr Ferenc
Subject: RE: WWW Form Submission [SEC=UNCLASSIFIED]
UNCLASSIFIED
Dear Piotr,
Thank you for your follow-up query.
Policy is unfortunately unable to provide an outcome determination on your below scenario as it is a pre-lodgement scenario. Advice on start-up businesses and the Actively and Lawfully Operating legislation is outlined in Section 6.4 of the Regulation 5.19 PAM3. I am unable to provide further policy advice outside of this.
As previously stated, the final determination on whether your below scenario will meet relevant legislative criteria will be determined by a delegate once the application has been lodged with the department and all required documentation has been provided. Applications are assessed on a case-by-case basis and all information provided will be taken into account by the delegate.
I hope this is of assistance.
Kind regards,
Katrina
Policy Officer
Business Innovation, Occupation and Employer Sponsored Policy Section
Skilled Migration Policy Branch
Migration and Citizenship Policy Division
Department of Immigration and Border Protection
From: Piotr Ferenc [This email address is being protected from spambots. You need JavaScript enabled to view it.
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Sent: Thursday, 6 February 2014 4:02 PM
To: Sponsored Skilled
Subject: RE: WWW Form Submission [SEC=UNCLASSIFIED]
Dear Katrina,
Thank you for your communication .
Your answer relates to transitional arrangement for 457 visa holders , not to direct stream where 6 months of active operation condition applies, I have asked about.
Pam 3 does not address situation where actively operating business is taken over by ASX listed start up organisation .
Policy says :
A business would be considered to have commenced 'active operation' once the entire infrastructure necessary for the activities of the business is in place and the business has commenced providing services to customers/clients. The entity must have operated for a full period of 6 months from the time it 'actively commenced operations to satisfy the requirement to be actively operating.
Our client has " the entire infrastructure necessary for the activities of the business is in place and the business has commenced providing services to customers/clients" years ago and continues to provide services after being acquired by newly listed on Australian Securities Exchange company ( company purchased 65 businesses across Australia ) . The new ABN has no history of operations for 6 months however acquired business has .
It seems to me that this situation is not described by PAM and therefore clarification is required.
There should not be any concerns in relation to financial standing and genuineness of the business ASX listed in my opinion.
Please provide us with formal standing of policy for nomination made by start up ASX listed company (operating less than 6 months ) who acquired other actively operating business that now operates under new ABN as a part of corporation.
Kind regards
Piotr Ferenc | Registered Migration Agent | MARN 0743766
Office Address: 406 Shute Harbour Rd , suite 18 | Airlie Beach | Mailing Address: PO BOX 768 | Cannonvale | QLD 4802 | Australia
P: +61(7) 4946 4680 | F: +61(7) 4948 2590 | M: +61 423 625 510
From: Sponsored Skilled [This email address is being protected from spambots. You need JavaScript enabled to view it.
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Sent: Thursday, 6 February 2014 1:46 PM
To: Piotr Ferenc
Subject: RE: WWW Form Submission [SEC=UNCLASSIFIED]
UNCLASSIFIED
Dear Piotr,
Thank you for your query.
As the Regulation 5.19 PAM3 addresses your query below, I would suggest reading through Section 6 of the Regulation 5.19 PAM3 which outlines active operation requirements under the ENS/RSMS programme, as well as Section 11.8 of the same PAM3 which provides further advice concerning . In particular, within Section 11.8:
Impact of change in business structure
If there has been a change in business structure, the requirement may be satisfied if the "new" entity and the "previous" entity are associated entities.
A change, during the 2 year period leading to the lodging of the nomination, in the structure or legal status of the entity in which the nominee has worked may affect the nominee's ability to meet related policy requirements.
If there has been a change in the legal structure of the entity that originally nominated the nominee, the 'new' entity would have been required to be approved
as a standard business sponsor and nominate the position in which the nominee was employed. If the new entity nominates the nominee under the Temporary
Residence Transition stream, the period worked for the original entity may be counted provided the original entity and the new entity would have qualified as
associated entities under s50AAA of the Corporations Act.
The above is policy advice only based on the information you have provided. The final determination on whether your below scenario will meet legislative criteria will be made by a case officer assessing the application once the application has been lodged with the Department and all necessary documentation has been provided.
I hope this is of assistance.
Kind regards,
Katrina
Policy Officer
Business Innovation, Occupation and Employer Sponsored Policy Section
Skilled Migration Policy Branch
Migration and Citizenship Policy Division
Department of Immigration and Border Protection
-----Original Message-----
From: PIotr Ferenc [This email address is being protected from spambots. You need JavaScript enabled to view it.
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Sent: Friday, 31 January 2014 12:58 PM
To: Sponsored Skilled
Subject: WWW Form Submission
Below is the result of Agents Gateway feedback Form. It was submitted by PIotr Ferenc (This email address is being protected from spambots. You need JavaScript enabled to view it. ) on Friday, January 31, 2014 at 12:58:26
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marn: 0743766
message: In regards to Reg 5.19 - nomination for RSMS .
What is DIBT aproach to requirement of "activly operating business" in situation when actively operting business has been purchsed by new company listed on the Australian Stock Exchange. Is it required to wait 6 months before sponsoring employee for RSMS visa ? I do not think it is intention of legislation to stop existing business from getting staff.
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UNCLASSIFIED
Comments
-
Monday, 10 February 2014
Hi Colin,
Thanks for answer and your comments.
1. In my opinion policy is illegal as Reg 5.19 requires the business to be actively operating at the time of nomination being lodged. There is no any time frame set up in legislation that requires business to be trading for at least 6 months that policy requires. Note, that in 457 visa related legislation the same wording "active operations" allows start up business, not necessarily trading, to be approved sponsor. I believe the court would agree, that active business operations does not require trading .
2. The processing time of nomination is approximately 6 months and as you probably know the decision ready arrangement has been cancelled. We do not have 6 month to wait while client's substantive visa expires soon.
3. I am not asking for assessment of my particular case , I am asking for answer from Policy Section how they interpret situation not covered by PAM 3 that might be common.
In our case , ABN has changed , previous ABN is inactive and sponsor does not trade under new ABN for 6 months that PAM 3 expects in all scenarios . The situation has nothing to do with s50AAA. Under policy nomination should be refused. I believe however that DIBP's intention is to make sure the business is genuine and has real need for position to be filled by overseas worker. I do not believe that DIBP might have justified concerns in relation to ASX listed company who has purchased 65 businesses across Australia in relation to its "active operations" . It is Policy that stops us from filling vacant positions in regionally operating business for first 6 months under new ABN, even though nothing has changed in relation to location , organisation of operations , employment .
Any comments will be highly appreciated. Piotr· Timmy Ku likes this comment. -
Tuesday, 11 February 2014I'm no expert in corporations law. I'm not sure whether there is any s50AAA relationship in this circumstance. DIBP themselves sometimes have to seek legal advice as to whether s50AAA relationship exists when a business structure or situation is complex.
The policy is clear in your client's circumstance:
The start-up business will not be determined to have been actively operating until the ABN and/or ACN of the business has been registered in addition to the business physically operating. The result of this is that in instances where a business has operated for a long period of time but has changed ownership or structure resulting in a new ABN and ACN being required, the new business will now need to wait at least 6 months prior to lodgement of the nomination to meet start-up business requirements.
My educated guess regarding the policy intention is that startup businesses should not need a permanent resident employee when they first start, because of the potential of new businesses failing. However the business might need an overseas worker in the initial phase, so a temporary (ie 457) worker would be acceptable, hence the flexibility of not having to operate for 6 months.
Common sense indicates that the business is operating. While the department can be flexible, case officers are sometimes quite rigid and don't usually depart from established policy/legislation. The last sentence in the above quote seems to indicate that they won't make an exception in your client's case. You must also consider that there are legal ramifications for businesses that change ABN. When there is legal action, it's the entity (ie the ABN) and its associates that is subject, not the "business".
You and your client have every right to contest policy, as it is just policy and not legislation. And the MRT sometimes doesn't follow PAM. However if your argument is not persuasive enough and not backed up by, say, case law or other legislation, there is the possibility that the application will be refused. Does your client really want and need to test this?
A workaround would probably be to sponsor the person on 457 until the company is considered 'operating'. Advise your client of the risks, give your recommendation but leave the final decision to the client:
Option A: risk it by applying and going against policy; consequences of not holding a substantive visa if RSMS is refused; costs of airline tickets, etc. Overall time to get PR if the case is refused, etc.
Option B: re-sponsor under 457; after 6 months of lawfully operating, apply for RSMS; time taken before PR is granted; costs (including RMA fees).
Option C: re-sponsor under 457 and at the same time lodge RSMS nomination to try your luck. No loss if RSMS nomination fails since it's free. If RSMS is successful, then lodge RSMS immediately; largest cost for your client in terms of RMA fees but it hedges their bets, is lowest risk and saves time.
In my short time of working as an RMA, clients appreciate being told risks up front and accept it if you tell them before starting.
Sorry that I don't have the solution that you are looking for. -
Tuesday, 11 February 2014
I am going to use Colin as my migration agent after reading this. I have been looking for an agent and he knows his stuff.
-
Monday, 17 February 2014
Wow Magdelena, thank you for your compliment!
Happy to represent you or anyone else if required
Liana - I see your point -
Tuesday, 11 February 2014
Hi Colin ,
Thank you for sharing your opinion and your time. You have confirmed my concerns.
IT was my strategy to obtain firm answer from Policy section to support my point of view and on this basis appplying for 187. Did not work so we will wait 6 months . Now, I am sure we are not missing any option having reasonable chances of success by delaying nomination.
I do apprecaite your help,
Kind regards
Piotr -
Wednesday, 12 February 2014
Hi Pietr
I think you've raised important points and it shows that a work related visa question is not limited to the confines of immigration legislation, regulation, policy, procedures AND form filling (thank you Lianna); it is far reaching and complex since what determines whether a business is trading or not is based on its structure and the legislation that underpin it (other commonwealth and state jurisdictions including the ATO). I am not all that familiar with sc187 applications and cannot comment on these but suffice to say that the definition of a business which trades is the same for 457 and ENS sponsorships and nominations and that information is set out in PAMs - perhaps given the constant changes to GSM, this is somewhat confusing and I think we all feel your pain... new businesses can take over existing business and continue to trade, as in the case of Restaurants, for example; this has not stopped these new businesses from making permanent nomination applications, because they need staff. It’s a question whether all of the requirements are met and some of these can be as as subjective as market salary rates summaries, for example, which are dependent, again, on information beyond the Migration Act 1958.
As with everything, we can only interpret what’s before us, ask the questions and if these are not forthcoming from the horse’s mouth, then refer to our MA networks and colleagues, challenge these notions and do the best we can for our clients even if it end up in merits review. You can’t be faulted for that and for being cautious.
However, I tend to agree with Colin that this particularly detailed discussion is best left to the Forum and to our collegial network, not only because we run the risk of publicly providing an opinion based on an issue discussed in part, but because the basis for the commentary invitation includes a departmental response, possible disclosure of a client’s situation which could identify them (not in this case but it has happened in the past), so, with the utmost respect to you and to everyone who respond to these posts, there are privacy and confidentiality considerations we must observe, as these news forum responses are public.
However, as the title of this post was what originally caught my attention, I DO have a number of problems with the Agent's gateway as a means of supporting Migration agents and the industry.
I don't think the AG is designed to ‘support’ migration agents other than give us snippets of information which the Department itself determines what is and what isn’t usefulness AND to remind us that before we ask questions, we must try to find the answers to these ourselves as professionals otherwise our level of knowledge could come into question.
The present Agent's gateway (in response to the title of this post) is as useful as 'an ashtray on a motorbike' because its format has not changed (as opposed to its host website which has changed considerably); a number of links under ‘News and Resources’ from previous years no longer work or cannot be found and, honestly, a lot of that info we can get ourselves from elsewhere. Sure, this is all grouped for our benefit BUT the fact that it has not been updated (other than some new content) is indicative of its usefulness.
Is the Enquiry and Feedback facility useful? I think you’ve answered that question, Pietr.
The Gateway as it stands, requires a revamp if it’s to help us as Agents. Perhaps we need to have a discussions about what we need and WHO do we approach as a network to ensure that it meets our needs and assists to inform our professional practice because I don’t believe it currently does it well or at all; our lively discussions through the public and private forums are a lot more informative and helpful.
This is my humble opinion - happy to be corrected, as always. Keep up the good work!
Cheers, Bea -
Thursday, 13 February 2014
Hi Bea,
Thanks a lot for your comments. My numerous experiences show, Agent's Gateway will never answer complicated policy issues, as if the matter is really complex or unclear, policy officers do not know the answer by themselves. Instead of seeking legal advice within DIBP and answering the question I am being referred either to the Code of Practice ( go back to school and learn before you ask stupid question ! ) or to irrelevant paragraph of policy ( see above : I asked for direct entry stream conditions , got an answer regarding transitional ) .
Any time I deal with DIBT rising issues of their lack of consistency in policy measures, lack of consistency and competency in decision making, illegal or unclear policy - I am treated as an enemy . For god sake , DIBP employees are public servants who suppose to care if the legislation is implemented properly! Any comment, suggestion or even simple question is treated as personal attack . I do not feel good about that at all. In effect I have founded opinion the government body established for sake of implementation of legislation creates own rules and anyone from outside questioning their wrongdoing, needs to be silenced or disciplined ( happened to me threat to be reported to OMARA if I am not going to stop asking difficult questions).
It is them to put me RMA in position of their enemy. Not good.....
Piotr -
Thursday, 13 February 2014
Hi PIoter,
Are DIBP requiring 2 year post qualifications expirence with certificate 4 for trade occupations? -
Friday, 14 February 2014
Hi Preet,
You have rised onother important issue. DIBP introduced (in my opinion illegal policy again due to contrdicting ANZCO ) on 15.05.2013. For purpose of RSMS all trade people who compleated cert 3 or cer 4 must have 2 years of full time employment evidenced past qualifications or 3 years overall in order to succesfully apply for visa 187 . There is no any information on the DIBP website about extra requirement where refference to ANZCO only is provided.
There are still applications being approved with cert 4 only with no experience but only for applications being lodged before May 15.
DIBP lives in their own word not respecting regulations. It is a joke: automotive mechanic qualyfied formally under AQF at cer 4 level with no experience is sutiably skilled for employment on 457 visa but not good enough to be approved for RSMS . Is he skilled or not according to Australian standard ? I am lost ....
cheers
Piotr -
Saturday, 15 February 2014
Hi Pioter,
Thanks for your communication.
Yes, certainly it looks crazy from the grounds.
However, they still approving 187 applications without expirence (even logded after 15 may 2013).
I have three of cases lodged after May 2013 and has granted 187 visa. All were trade persons( 2 moter mechanic and 1 cook). It was without any expirence. -
Monday, 17 February 2014
I got yeterday approval of chef with no IELTS and no medicals ..... It is mess!
Regarding your question see: PAM 3 Subclass 187 30.2 AQF Certificate III, IV and Diploma qualifications.
MIA was rising this issue late May 2013 as : "This would seem to be above and beyond the legislative requirements , and above and beyond TRA skills assessment requirements".
The only tangable result in effect is allowing officers to consider part tme work callculated "pro rata " towards 2 years post study employment requirement. I hope it helps .Piotr -
Friday, 04 April 2014
Hi Piotr,
Currently me and my husband on 485 visa which is expiring Jan 2015, and i am main applicant.
Question. Is it possible if my husband open a new business in regional area and sponsor me for RSMS.
As we are planing to open a new business as a Motor Dealer/Car Yard etc.
Comment please.
Regards
Ash -
Friday, 04 April 2014
Hi Piotr,
Currently me and my husband on 485 visa which is expiring Jan 2015, and i am main applicant.
Question. Is it possible if my husband open a new business in regional area and sponsor me for RSMS.
As we are planing to open a new business as a Motor Dealer/Car Yard etc.
Comment please.
Regards
Ash -
Friday, 04 April 2014
Ash , I am not in position to advise whether the visa application has reasonable chances of success in the described scenario due to lack of detailed, relevant information but :
1. self sponsoring is possible if the business is established properly as Australian business complying with corporate Act .
2. self sponsoring is possible if the relationship employer employee is established and MAIN reason of employment and sponsorship application is need of your services at skilled level within nominating business - not family ties or intention to secure migration outcome at the first place.
please call us on 0749464680 or e-mail piotr@australiahome.com.au - we can discuss details .
Kind regards
Piotr Ferenc
MARN 0743766 -
Thursday, 17 April 2014
Hi Piotr,
Thanks for comments.
Another Query,
A Sydney based Transport company is planing to move in regional area of NSW.
they want to sponsor me for RSMS once the company starts in regional area (Perhaps in a Month).
As per DIBP requirments the business must be 6 months old at least, to sponsor some one for RSMS.
So Does it mean the 6 months old business must be operated/functional from regional area previously or any where else in Australia. ?
(For example a 10 year old company want to move their business in Regional area and if the company wants to sponsor some one for RSMS immediately, do they (Company) need to wait for another 6 Months to do that ......?
Please clarify as per your best knowledge.
Thank you -
Tuesday, 22 April 2014
It depend on the company structure and location of employment . Please call us on 0749464680 to discuss details .
Piotr -
Friday, 04 April 2014
I received answer from Ombudsman I wanted to share regarding my post dated 17.02.2014.
The conclusion is - if you do not like DIBP policy - sue them , Ombudsman does not care if DIBP acts lawfully or not :
"Having said this, the specific question you have raised about whether the Department’s actions have exceeded the legislative requirements, this is ultimately a matter of legal interpretation and can only be definitively determined by a competent court or tribunal. The Ombudsman’s office is not able to do this".
Our ref: 2014-300565
Dear Mr Ferenc
I am writing in relation to your complaint to the Ombudsman on behalf of your clients regarding the Department of Immigration and Border Protection’s (the Department) assessment of your clients’ applications for Regional Sponsored Migration Scheme visas (RSMS visa).
Before turning to the details of your complaint, it may be helpful if I explain the role of the Ombudsman’s office is to assess whether it appears that an agency has acted in accordance with the relevant legislative and administrative requirements, has given appropriate consideration to all relevant information when making a decision and, in all the circumstances, the decision made or action taken was not unreasonable. The Ombudsman cannot require an agency to take a specific action or make (or remake) a specific decision.
You have stated that the Department advises chefs and other tradespeople that RSMS visa applications require qualification at Certificate 3 level plus two years of relevant work experience or Certificate 4. You are concerned that the Department’s policy requires two years of relevant work experience for both the holder of a Certificate 3 (as prescribed by ANZCO) and also for Certificate 4. You believe that in requiring two years of relevant work experience for the holder of Certificate 4 qualifications, the Department has exceeded the relevant legislative requirements.
I have reviewed the information you have provided as well as the Department’s responses to your complaints regarding this matter. It is not clear from your complaint as to whether your clients have advised the Department that they have completed both the Certificate 3 and Certificate 4 or whether they have only completed Certificate 4.
In my view, if a visa applicant advises the Department that they have completed both the Certificate 3 and Certificate 4, it is open to the Department to request evidence that an applicant has completed all of the requirements for both Certificate 3 and Certificate 4. In this instance, this would include evidence that the applicant has completed two years of relevant work experience (as prescribed by ANZCO for Certificate 3 in Commercial Cookery). Likewise, if relevant work experience is a prerequisite for undertaking Certificate 4 in Commercial Cookery, in my view, it would also be open to the Department to request evidence that the applicant has completed the prerequisite work experience the applicant has claimed to have undertaken.
Having said this, the specific question you have raised about whether the Department’s actions have exceeded the legislative requirements, this is ultimately a matter of legal interpretation and can only be definitively determined by a competent court or tribunal. The Ombudsman’s office is not able to do this.
For the reasons I have explained, we will not investigate your complaint. If you believe that you have another reason why we should investigate your complaint, please let me know so that I may consider it.
If you want to discuss this decision, please contact me by return email or by using the details listed below.
Yours sincerely
Kathleen Byrne
Investigation Officer
COMMONWEALTH OMBUDSMAN
Has anyone got refusal of RSMS nominating trade occupation due to lack of experince past qualifications ? We might try to help .
Kind regards
Piotr -
Monday, 05 May 2014
such an informative blog.
Cheap Essays
Immigration blog
Hi Piotr
Who will be the sponsor? The ASX company or the business that was bought over? Have you identified whether there is a s50AAA relationship that would cover your client's situation? Why do you think there is/isn't?
On what basis do you think the policy is illegal? ie do you have a legal reason for thinking that the dept would lose if the case was brought to judicial review?
I think it's policy intention that if you want an answer, you have to lodge, and then your client's case will undergo a full assessment. Otherwise agents will always contact policy to get answers for complex cases without bothering to lodge, and I don't think that the department wants to assess complex cases without being paid. Having said that, there's no charge for RSMS nomination, so why not lodge and find out?
If there's more information about the situation, perhaps we can help.
Is your query better answered in the forums?