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.
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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