1511064 (Migration)

[2016] AATA 3804

1511064 (Migration) [2016] AATA 3804 (26 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The View Hotels St Kilda Road Pty Ltd

CASE NUMBER:  1511064

DIBP REFERENCE(S):  BCC2015/564478

MEMBER:Miriam Holmes

DATE:26 April 2016

PLACE OF DECISION:  Melbourne

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

STATEMENT MADE ON 26 APRIL 2016 AT 10:29AM

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 on 23 July 2015 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 20 February 2015. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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 Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because the applicant has not demonstrated that it has met the training requirements and the delegate was not satisfied that is reasonable to disregard the requirement.

5. Mr Goldfinch, the Director of Operations appeared before the Tribunal on behalf of the applicant on 16 February 2016 to give evidence and present arguments.  

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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The Tribunal had regard to the oral evidence of Mr Goldfinch and the documentary materials provided by the applicant. The Tribunal found Mr Goldfinch to be a reliable witness and he produced a range of documents in support of his evidence to the Tribunal.

   The application must be compliant: r.5.19(3)(a)

10. 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.

11. The application must be made in accordance with r.5.19(2), which includes requirements that the approved form is used and that it is accompanied by the required fee. The application was made on an internet application form entitled ‘Application for Employer Nomination for a Permanent Appointment’. While no form number appears on the form, given the title, it appears to be appropriate. The Tribunal notes that no issue was raised by the delegate about the form, I accept that the form is the form 1395 (internet) specified in the relevant Schedule 1 item. A receipt dated 20 February 2015 for the appropriate fee was confirmed by the representative. Therefore the Tribunal finds that the application was therefore made in accordance with r.5.19(2) and I find the requirements of r.5.19(3)(a)(i) are met.

12. The application for approval must identify a person who holds a Subclass 457 visa on the basis that they met cl.457.223(4) (which is a primary criterion for applicants in the standard business sponsor stream). The application identifies Mr Jean – Michel Jonathan Marchand as the relevant person or ‘nominee’. According to Department records, the nominee was granted a Subclass 457 visa on 12 September 2012, which was valid until 12 September 2016. I find that the r.5.19(3)(a)(ii) is met because the nominee held a Subclass 457 visa at the time he was identified as the relevant person for the application.

13. The application for approval must also identify an occupation, in relation to the position, that is both listed in ANZSCO and which has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 visa.

14. In considering again whether this requirement is met, I have considered all the information before me about which occupation was identified in the application for approval (in relation to the position) and whether this occupation was the occupation carried out by the nominee or an occupation with the same unit group code. In the nomination application the applicant nominated the position of Hotel Manager and referred to the ANZSCO occupation as Hotel or Motel Manager. The Tribunal finds ANZSCO lists the occupation of Hotel or Motel Manager (ANZSCO 1413) and the Tribunal is satisfied based on the department records pertaining the nominee’s sc457 nominated occupation and Mr Goldfinch’s evidence and letter dated 15 February 2016 by Mr Goldfinch that the nominated occupation is the same occupation that is carried out by the nominee. I find that the r.5.19(3)(a)(ii) is met because the nomination application identifies an occupation in relation to the nominated position that is listed in ANZSCO and has the same 4 digit code occupation unit group as the occupation carried out by the holder of the subclass 457 visa ( the nominee).

15. The Tribunal notes the certification requirement regarding s.245AR(1) is not applicable in this case.

16. Given the above findings, the requirement in r.5.19(3)(a) is met.

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

17. 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.

18. I am satisfied, on the basis of Department records, that the applicant was the standard business sponsor who last identified the nominee in a nomination made under r.1.20GA. Based on the oral evidence of Mr Goldfinch at the hearing and the financial and other business documents before the Tribunal from the Department and Tribunal files, including BAS documents, financial reports, organisation chart, lists of employees, employment contracts, apprenticeship agreement and recent payslips for the nominee and another employee and other payroll documentation, I am satisfied that the applicant is actively and lawfully operating a hotel business in Australia.

19. Given the above, the requirement in r.5.19(3)(b) is met.

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

20. 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.

21. The Tribunal has considered the relevant evidence which was lodged with the initial application, including the contract of employment dated 22 October 2014 and the more recent information which includes recent payslips for the nominee, Mr Marchand, for a period in November 2015 and February 2016, employee list, organisational chart and the oral evidence of Mr Goldfinch. On the basis of this evidence, as well as the Department’s records regarding the sc457 visa application and associated nomination, before me, the Tribunal finds that the nominee was employed by The View Hotels St Kilda Rd Pty Ltd full time since August 2012 and in Australia in the position of ‘Hotel Manager’, the position for which he held a Subclass 457 visa, for at least 2 of the 3 years preceding the nomination application. The Tribunal finds that the requirements of r.5.19(3)(c)(i) are met.

22. 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)

23. 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.

24. The Tribunal finds that the nominee is a person to whom r.5.19(3)(c)(i) applies. An employment contract dating from October 2014 was lodged with the application. It confirmed that the nominee would be employed for 24 months from the date of permanent visa approval. At the hearing, Mr Goldfinch confirmed that the applicant intended to continue to employ the nominee on an ongoing basis. Mr Goldfinch also confirmed that the nominee had been employed full time since August 2012 and consequently has already been employed in excess of three years in his current role. The Tribunal finds, on the basis of the information before me, 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 extension

25. Given the above findings, the requirement in r.5.19(3)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

26. 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.

27. The Tribunal considered the evidence available. Mr Goldfinch stated that the nominee is and will be employed on the same terms and conditions as the other Hotel Manager (Ms Gardner). In support of this Mr Goldfinch stated that their annual salary was in the vicinity of $53,000. They are both are listed as Hotel Managers in the organisation chart. The applicant provided two payslips for the same periods for Ms Gardner and Mr Marchand. These payslips confirmed that both the nominee and other employee in the same position are paid the same base rate for 38 hours per week and that year to date as at 24 November 2015 they had been paid almost an identical sum and that as at February 2016 the nominee had been paid slightly more (approximately $150) year to date than the other employee. The payslip notes that the applicable award is the Hospitality Industry General Award 2010 and the annual salary for the nominee and the other employee is $53,833.

28. The applicant also provided an employment contract dated 22 October 2014 setting out that the nominee would be paid $55,000 (base) for a 38 hour week plus 9% superannuation. This agreement contrast favourably with the Hospitality Industry (General) Award 2010 which covers employees in the hospitality industry including premises such as hotels and motels. The minimum wages includes managerial staff. It states as at the date of decision:

    20.2 Managerial staff (Hotels)

    The minimum annual salary payable to employees within the Managerial Staff (Hotels) classification level within Schedule D, will be $43,475 per annum.

29. On the information available the Tribunal is satisfied that the terms and conditions applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

30. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

31. 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. The delegate refused the nomination application as the delegate was not satisfied that this criteria was met. Since then, the applicant has provided the Tribunal with a number of documents.

32. The Department records indicate that the applicant was approved as a standard business sponsor on 7 August 2012 for a period of 3 years and three nominations were subsequently approved, including for the nominee. The applicant was most recently approved again on 19 September 2015 in relation to this nominee for a period of five years.  Nominations for two other visa applicants were subsequently approved under the sponsorship. 

33. In light of the most recent approval as a standard business sponsor the Tribunal is satisfied that that as part of the approval as a standard business sponsor, the employer had to meet certain training requirements: r.2.59(d). The applicant had to demonstrate recent training expenditure in accordance with specified training ‘benchmarks’ (IMMI 13/030) and make a commitment to maintain such expenditure over the term of sponsorship approval.

34. The relevant training commitments for that purpose were incorporated into the training benchmarks specified in IMMI 13/030, which provided for the following alternatives:

    A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business. 

    OR

    B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

35. The legislative instrument sets out in detail the expenditure, which can and cannot count towards Benchmark B. In particular, it details the limited circumstances in which expenditure for on-the-job training can count towards the Benchmark. The applicant gave no evidence that payments had been made to an industry fund, consequently the Tribunal considered whether the applicant had complied with Benchmark B.

36. The Tribunal took into consideration that the applicant had been approved as a standard business sponsor in September 2015 and the Tribunal infers the Department was satisfied that the applicant met the training requirements in the preceding sponsorship period. Further the Tribunal also took into consideration the following information

37. The applicant provided financial records setting out the payroll of the organisation from 2012. The Tribunal finds on the financial documentation provided that the applicant had the following annual payroll and calculated 1% of the payroll in the relevant financial years:

Financial year	Annual payroll	1%
2013/2014	$3,565,725	$35,657.25
2014/2015	$3,618,726	$36,187.26
2015/2016	$2,063,765 (year to date)	$20,637.65

1. The Tribunal notes that the financial data is not consistent with the amount stated in the nomination application which listed the gross payroll expenditure of the business in the past 12 months at $4.5 million. The Tribunal considers the financial data provided during the course of the hearing is more reliable and had regard to this information. The Tribunal also notes that it received no specific financial date for the 2012/2013 financial year, but the Tribunal is prepared to find based on the payroll paid in subsequent years that it is in the vicinity of $3.5 million, therefore allowing 1% would be equivalent to $35,000.

2. The applicant engages apprentices and trainees through a not for profit organisation, WPC Group Limited. WPC Group Limited employs the apprentice/trainee but the applicant is the host employer and actually provides the training on its premises. The applicant pays WPC Group Limited the wages for the apprentices and WPC Group Limited pays the trainee.  The applicant provided a copy of a contract setting out this arrangement in respect of a current apprentice, R Slocomb and showed the Tribunal a copy of another such contract for a trainee in 2013. The applicant provided financial records demonstrating that it had made payments to WPC Group Limited for trainees in total for the following financial years - $67,830 in the 2011/2012 financial year, $55,959 in 2012/2013 financial year and $59,060 in the 2013/2014 financial year. The Tribunal calculated the expenditure to WPC Group Limited for 2014/ 2015 using the figures provided setting out the individual payments in that period totalled $39,344. The Tribunal calculated in the period 2015/2016 year to date the amount paid to WPC Group Limited by the applicant totalled $26,955.

3. The applicant also provided evidence that it has directly employed an apprentice, R Valerio as a chef. The applicant provided a training contract and the payment details for this apprentice.  R Valerio commenced on 15 June 2015 and in the 2015 financial year and she was paid $1,477 (gross) and year to date in the 2016 financial year she has been paid $24,215.

4. Further, during 2015 calendar year the applicant arranged training for staff in a Certificate IV in Frontline Management to six staff delivered by Total Training Solutions (Victoria) Pty Ltd.

5. After having regard to findings above regarding the applicant’s annual payroll and the various expenditure on training provided by the applicant – either by training trainees directly or through arrangements with WPC Group Limited and the delivery of the Certificate IV course, the Tribunal is satisfied that Benchmark B has been met by the applicant during the period of the last held sponsorship and the current most recent sponsorship. Therefore the Tribunal finds that the applicant has 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 for the purposes of r.5.19(3)(f)(i)(A).

6. In relation to r.5.19(3)(f)(i)(B), the Tribunal notes that PAM 3 sets out the following policy:

   In order to satisfy the requirements as outlined in regulation 5.19(3)(f)(i)(B), the nominator must not have been investigated by the department and found non-compliant with the applicable obligations under Division 2.19. Nominators who have been found non-compliant by the department will not meet this criterion. If a nominator is currently under investigation by the department, delegates should in the initial instances establish contact with the relevant sponsor monitoring unit prior to finalising the application. Until such time as a nominator is deemed non-compliant by the department and this has been recorded in relevant departmental systems the nominator is considered to have met this criterion.

7. After having regard to the policy and the information available to the Tribunal, there is no evidence before the Tribunal to indicate that that the applicant has been investigated or found to be non-complaint with the applicable obligations under Division 2.9 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor.

8. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(f) is met.

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

9. 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. 

1. The Tribunal had regard to the information on the Department electronic records and the evidence of Mr Goldfinch. The Tribunal finds that in September 2013 the applicant was counselled in relation to two breaches of sponsorship obligations. These breaches related to the non-payment of travel costs for a visa holder and the keeping of records in relation to the employment of the visa holder. Mr Goldfinch explained that in 2013 the applicant employed a chef from Argentina, however after only a very short period the visa holder took up another employment opportunity in Paris, and left the employment of the applicant. He stated that approximately 2 months later the visa holder requested that the applicant pay the visa holder’s travel fees from Australia to Paris. In the circumstances, the applicant was reluctant to pay the travel fees. Mr Goldfinch explained that the applicant did pay the travel costs as required in accordance with the obligations.

2. The Tribunal had regard to the adverse information regarding the events in 2013 and the Tribunal considered it reasonable to disregard the information, noting that the applicant did pay the relevant travel costs, the Department only issued a counselling letter and the Department has subsequently approved the applicant as a sponsor.

3. There is no other information before the Tribunal to indicate that there is any adverse information, as defined in r.2.57(2) or (3), known to Immigration about the applicant or any person associated with it. On this basis, I find that the requirements of r.5.19(3)(g) are met.

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

4. 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.

5. There is no evidence before me to indicate that that the applicant does not have a satisfactory record of compliance with workplace relations laws. Mr Goldfinch gave evidence that the applicant employs approximately 85 staff ( and casuals) and outsources approximately thirty housekeeping staff.  Mr Goldfinch indicated that there was a recent matter that was the subject of conciliation for unfair dismissal. He gave evidence that there have been no investigations or actions for any other work related matters – such as underpayment of staff or non-payment of superannuation other workplace relations matters. The Tribunal considered that given the number of staff employed by the applicant and that the employer has entered into the conciliation process, that on the available evidence, the Tribunal finds that the applicant has a satisfactory record of compliance with workplace relations laws of the Commonwealth, and of Victoria, where the applicant operates a business and employs employees in the business.

6. Accordingly, the requirement in r.5.19(3)(h) is met.

7. 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.

   DECISION

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

   Miriam Holmes
   Senior Member

   
   

   ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

   5.19Approval of nominated positions (employer nomination)

   …

   (2)The application must:

   (a)be made in accordance with approved form 1395…; 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.