1514718 (Migration)

[2016] AATA 4825

1514718 (Migration) [2016] AATA 4825 (22 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ENTERPARAGON PTY LTD

CASE NUMBER:  1514718

DIBP REFERENCE(S):  BCC2015/1196788

MEMBER:Mary-Ann Cooper

DATE:22 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 December 2016 at 2:24pm

CATCHWORDS

Migration – Employer Nomination Refusal – r.5.19(3)(d) – Financial capacity to sustain the salary – Salary in excess of market rates – Continuous employment as Group Restaurant Manager – Recent financial statements – Responsible for positive growth in the business

LEGISLATION

Migration Regulation 1994, r.5.19

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 15 October 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 23 April 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)(d) of the Regulations because she was not satisfied that it had the financial capacity to sustain the salary of the nominated position for at least 2 years.

5. The applicant’s representative appeared before the tribunal on 9 November 2016 to give evidence and present arguments. His authority to appear on behalf of the company was confirmed in writing by its sole director. The tribunal also received oral evidence from the nominated employee. The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by its registered migration agent who also attended the hearing.

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. As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicant owns and operates several restaurants. The nominated position is for the Group Restaurant Manager and, on the basis of the financial information provided, the delegate was not satisfied that the nominated position, with a base salary of $180,001 could be financially sustained by the business fulltime for at least 2 years (r.5.19(3)(d)(i)).

   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 also identify a relevant person and occupation.

11. Documents on the Department’s file confirm that the application was made on the appropriate form and was accompanied by the prescribed fee. It was therefore made in accordance with r.5.19(2) and the Tribunal finds the requirements of r.5.19(3)(a)(i) are met.

12. The application for approval identifies the nominee who, according to Departmental records, has held a Subclass 457 visa since 7 September 2012 which was granted on the basis of satisfying subclause 457.223(4) of Schedule 2. The Tribunal finds the requirements of r.5.19(3)(a)(ii) are met.

13. The occupation identified in the visa application is Group Restaurant Manager ( Café or Restaurant Manager - ANZSCO code 141111) and is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is therefore satisfied that this occupation carries the same 4-digit occupation unit group code (1411) as the occupation carried out by the nominee as the holder of a Subclass 457 visa. 

14. The Tribunal therefore finds that the applicant meets r.5.19(3)(a)(iii).

15. Given the above findings, the requirements in r.5.19(3)(a) are met.

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

16. 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.

17. The Department’s records confirm that the applicant was most recently approved as a standard business sponsor from 28 October 2014 to 28 October 2017 and is the standard business sponsor who last identified the nominee (the holder of the subclass 457 visa) in a nomination under s140GB of the Act. The tribunal is also satisfied on the basis of documentation on the Department and tribunal files that it was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i). Therefore the requirements of r.5.19(3)(b)(i) and (iii) are met.

18. Documents on the Department’s file and as provided to the tribunal further demonstrate that the applicant is registered with the relevant authorities, and retains an active Australian Business Number (ABN) status and ongoing registration for Goods and Services Tax (GST).

19. The applicant’s representative told the tribunal that it has operated since 2010 and is engaged in running three restaurants in the northern metropolitan area and anticipates opening a fourth venue before the new year. Documents available and later provided to the tribunal, such as profit and loss statements and BAS statements, confirm the applicant’s ongoing business activity and the tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia.

20. Given the above, the requirements in r.5.19(3)(b) are met.

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

21. Broadly speaking, to meet the requirements 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.

22. This nomination application was lodged on 23 April 2015. The oral evidence and PAYG summary statements and ATO assessments provided for the nominee demonstrate that he has been continuously employed fulltime as a Restaurant Manager, the position for which he holds the Subclass 457 visa, since soon after the grant of that visa in September 2012. That is, the nominee gave evidence at the hearing that he arrived in Australia in September 2012 and did some work at the restaurant but after travelling to China to settle his affairs, returned and has worked fulltime since January 2013. The tribunal is therefore satisfied that the nominee has been employed full time as a Restaurant Manager in Australia, on a subclass 457 visa in the nominated occupation, in the nominating business, for the period from January 2013  to date, which is for at least 2 years in the 3 year period immediately before this nomination application was made on 23 April 2015.

23. Given the above findings, the requirements in r.5.19(3)(c)(i) are met.

    Future employment of the visa holder: r.5.19(3)(d)

24. 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.

25. The applicant’s representative confirmed at the hearing that the employment contract provided to the Department with this application still applied to the nominated position. That contract demonstrates the role is fulltime and is for a period of at least 4 years.

26. As noted above, the delegate was not satisfied, based on the business’ increasing debt as reflected in the Financial Statements provided, that the applicant could sustain the position for at least 2 years. The tribunal has the benefit of a great deal more information and evidence than was before the delegate. Specifically it has the 2014/15 and 2015/16 Financial Statements which demonstrate significant growth in the business and its revenue. Consequently, the tribunal has no concern that the business can sustain the position fulltime for at least 2 years.

27. For the above reasons, the tribunal is satisfied that the applicant meets r.5.19(3)(d).

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

28. 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.

29. The delegate observed that the salary offered was significantly in excess of the market salary rates for similar positions. The tribunal also noted this with the applicant’s representative and observed that it gave the appearance of being contrived for the purpose of the visa applicant avoiding the English language requirements in cl.186.234.

30. The applicant’s representative provided a persuasive response that the nominee has been significantly responsible for the positive growth in the business and he has attempted to reflect that contribution in his salary, providing a large increase to $92K in 2014/2015, increasing it further in line with the increasing net profit in 2015/16.

31. The tribunal has examined the terms and conditions of the applicant’s employment, as outlined in his employment contract, and notes that they are consistent with the National Employment Standards. There does not appear to be any industrial instrument which covers the role of Café and Restaurant Manager and no enterprise agreement is in place at the workplace.

32. On this basis, having regard to relevant information and legislation, and noting the salary is significantly in excess of market rates, the tribunal is satisfied that 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.

33. Accordingly, the requirements of r.5.19(3)(e) are met.

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

34. 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.

35. Departmental records confirm that the applicant’s most recent sponsorship approval commenced on 28 October 2014 and ceases on 28 October 2017. There is no evidence of any particular, specific training commitments made regarding this sponsorship.

36. As part of its approval as a standard business sponsor however, the applicant had to meet certain training requirements: r.2.59(d) and (e). The applicant/sponsor had to demonstrate recent training expenditure in accordance with specified training ‘benchmarks’ and make a commitment to maintain such expenditure over the term of sponsorship approval. This obligation is assessable on an annual basis, in the twelve month period commencing on the day on which the sponsor is approved: r.2.87B.

37. The tribunal notes that, for businesses operating for more than 12 months that are required to satisfy the training benchmarks, Departmental guidelines (PAM3) note that if a nominator cannot demonstrate that they maintained the relevant level of training expenditure throughout the validity of their standard business sponsorship they cannot satisfy the requirements of the Temporary Residence Transition stream and may need to consider using the Direct Entry stream.[1]

    [1] PAM3: Migration Regulations – Division 5.3 - General > Reg 5.19 - Approval of nominated positions (employer nomination) > The nominator has met the training requirement > The training benchmarks (reissued on 19/05/2016).

38. The relevant training benchmarks are specified in IMMI 13/030, which provide 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, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor. 

    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, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor.

39. In order to assess whether or not the applicant has complied with applicable obligations relating to training expenditure during the period of its most recent sponsorship approval (28 October 2014 to 28 October 2017), the Tribunal required details of the applicant’s payroll over the relevant period. At the hearing the tribunal noted that, aside from correspondence from the applicant’s accountant which appeared to be inconsistent with the receipts and other evidence of training provided to the tribunal, it did not have evidence of the payroll for 2015/16 or the citizenship or permanent resident status of the applicant’s employees, so as to be able to accurately estimate whether the applicant’s expenditure met the training benchmarks.

40. A further period was allowed for the applicant to provide this information.

41. As evidence of meeting its training obligations, the applicant submitted the following:

    ·     Financial statements for the business from 2012 to 2016.

    ·     Training payment records over the period 2015 to 2016.

42. The records provided to the tribunal demonstrate that in the 2014/15 financial year the applicant had a gross payroll of $566,547.98 and training expenditure of $6805 and in the 2015/16 financial year had a payroll of $913,216 and a training expenditure of $15,300 2015/16.

43. On this basis, the tribunal is therefore satisfied that the applicant has recently expended at least 1% of its payroll in the provision of training to its employees.

44. In addition to the obligations imposed by r.2.87B,  if the nominator was lawfully operating a business in Australia at the time of the standard business sponsorship or variation approval, all records showing that the person has complied with requirements relating to the training obligation in 2.87B must be kept in accordance with a separate record keeping obligation (r.2.82). As noted above, the applicant has provided the relevant records.

45. For the above reasons, the tribunal is satisfied that the applicant has complied with its obligations under Division 2.19 relating to its training requirements during the period of its most recent approval as a standard business sponsor: r.5.19(3)(f)(i).

46. Accordingly, the requirements of r.5.19(3)(f) are met.

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

47. 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. 

48. There is nothing before the tribunal to indicate there is any adverse information known to Immigration about the nominator or persons associated with the nominator.

49. Accordingly, the requirement in r.5.19(3)(g) is met.

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

50. 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.

51. At the hearing, the applicant’s representative frankly acknowledged that he had engagement with the Fair Work Ombudsman and Worksafe Victoria, but claimed that no instances of non-compliance were alleged or found and no notices had been issued.

52. There is nothing before the Tribunal to indicate the applicant does not have a satisfactory record of compliance with the relevant workplace relations laws.

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

54. It follows that the applicant meets all the requirements of r.5.19(3).

    CONCLUSION

55. 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

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

    Mary-Ann Cooper
    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.