A-One Indian Restaurant Pty Ltd (Migration)

[2020] AATA 4768

A-One Indian Restaurant Pty Ltd (Migration) [2020] AATA 4768 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  A-One Indian Restaurant Pty Ltd

CASE NUMBER:  1812251

HOME AFFAIRS REFERENCE(S):          BCC2017/1257798

MEMBER:Susan Hoffman

DATE:20 August 2020

PLACE OF DECISION:  Perth

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

Statement made on 20 August 2020 at 2:57pm

CATCHWORDS
MIGRATION – nomination –Temporary Residence Transition nomination stream – training requirements – nominee was employed in the nominated position in a full time capacity – financial capacity of the business to employ the nominee for at least 2 years full time – no less favourable terms and conditions of employment – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR

Migration Regulations 1994, rr 1.13, 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 Home Affairs on 13 April 2018 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 3 April 2017. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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 the 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 requirement to meet training obligations had not been met.

5. The Tribunal did not hold a hearing as it was satisfied on the documents that the various requirements were met.

6. 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

7. 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.

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

8. 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.

9. Based on departmental records, the application for approval was made on the approved form, was accompanied by the prescribed fee and included the written certification relating to conduct that contravenes s.245AR(1).

10. The nomination application identified Mr Gurjeet Singh as the nominee, and identified the occupation as Restaurant Manager which is an ANZSCO occupation of Café or Restaurant Manager (ANZSCO 141111).

11. The delegate’s decision recorded that Mr Singh was the holder of a Subclass 457 visa at the time of application. The Tribunal is satisfied that he held his visa in relation to the nominated occupation.

12. The Tribunal was satisfied based on the nominee’s contracts of employment, the business’s pay records, departmental records and other documents, that the identified occupation is the same as that carried out by the nominee as a holder of a subclass 457 visa, and is also satisfied that this occupation carries the same four-digit code – 1411 – as the occupation carried out by the nominee whilst he held the Subclass 457 visa.

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

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

14. 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.

15. Based on information in the departmental file the Tribunal is satisfied that the nominator is the same entity who last identified the holder of the Subclass 457 visa. According to departmental records, the nominator was approved as a Standard Business Sponsor for the period 25 August 2016 to 25 August 2020.

16. The applicant provided financial statements for 2015/16, 2016/17, 2017/18 and 2018/19, and BAS covering periods from 1 January 2015 to 31 December 2019.

17. The applicant also provided a current company extract from ASIC dated 14 April 2020 and other records, such that the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia.

18. There was no evidence before the Tribunal that the applicant was granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

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. According to his initial application lodged with the Department on 4 April 2017, the nominee had been employed full-time by the applicant as a restaurant manager since 15 December 2014. Given that the business is a restaurant, it is self-evident that employing a restaurant manager is appropriate.

22. Also according to his application, the nominee obtained a Diploma of Management (Business) in May 2010 whilst in Australia.

23. The applicant submitted PAYG summaries which show the nominee’s gross pay was $20,730 for 2014/15, $51,827 for 2015/16 and $47,680 for 2016/17.

24. A payslip for the fortnight ended 20 February 2015 shows that the nominee’s hourly rate was $27.28, he worked a 76-hour fortnight and his fortnightly pay was $2,073. Annualised, that is $53,898. As the nominee started working for the applicant in 15 December 2014, the Tribunal is satisfied that the PAYG summaries just recorded evidence him working full-time from that date. 

25. As the nomination application was lodged on 3 April 2017, the period of interest in relation to this criterion is 3 April 2014 to 2 April 2017. Given the pay information, the Tribunal is satisfied that the nominee was employed in the relevant occupation on a full-time basis for at least two of the three years prior to the application being lodged.

26. 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)

27. 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.

28. The Tribunal is satisfied that r.5.19(3)(d) applies in this case as the nominee meets the criteria set out in r.5.19(3)(c)(i).

29. The applicant submitted employment contracts for the nominee, dated 20 September 2017 and 13 April 2020. There is nothing in either contract that expressly precludes the possibility of employment beyond two years.

30. The nominee has been employed by the applicant since December 2014, over five years. The applicant has submitted a substantial volume of information in support of this review which indicates their willingness to continue employing the nominee, as does the fact that they drew up a contract of employment in or around April 2020.

31. 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)

32. 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.

33. According to employment contracts dated 20 February 2017 and 13 April 2020, the nominee would be paid $53,900 a year on grant of the visa. The contracts referred to usual employee benefits, such as compulsory superannuation payable by the employer, four weeks paid vacation leave, and entitlement to long service leave, sick leave, bereavement leave, parental leave and paid public holidays in accordance with relevant legislation and awards. The contracts stated that the position would be available for at least two years from the date the visa is granted.

34. Based on the occupational chart, the nominee is the only restaurant manager employed by the applicant.

35. Advertisements from seek.com were provided which show that the pay for a café manager/supervisor in Perth CBD and surrounds was in the range $50,000 to $54,999 on 14 July 2017 and was the same range for a café/deli manager on 26 June 2017.

36. As at 5 August 2020, payscale.com recorded that the average pay for a restaurant manager in Australia is $55,812 and the range is $48,000 to $69,000. Pay for Perth restaurants was on par with the national average.

37. Given this data, the Tribunal is satisfied that the terms and condition 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.

38. Accordingly, the requirement in r.5.19(3)(e) is met.

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

39. 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.

40. The most recent sponsorship approval was granted from 25 August 2016 and lasted until 25 August 2020.

41. Changes in the legislation that applied from 12 August 2018 (see the Migration Amendment (Skilling Australian Fund) Regulations 2018) removed the obligation of approved standard business sponsors to meet training benchmarks. This obligation was replaced by the requirement to pay a ‘nomination training contribution charge’ but that only applied to nomination applications made on or after 12 August 2018 which is not the case with this application. This application was lodged on 3 April 2017.

42. A transitional provision (cl 7602(5) of Schedule 13 to the Migration Regulations 1994) exempted a business sponsor from having to comply with the training requirements for a period of 12 months ending on or after 12 August 2018.

43. The Tribunal takes the view therefore that it should consider compliance with the training benchmark requirements from 25 August 2016 to 25 August 2017 (the relevant period), as the next 12-month period extends beyond 12 August 2018. The relevant period cuts across financial years 2016/17 and 2017/18.

44. The training benchmarks that applied when the visa application was lodged were specified in IMMI 13/030. A business met the benchmark by demonstrating:

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

    ·Recent expenditure to the equivalent of at least 1% of payroll of the business in the provision of training to employees of the business.

45. In the nomination application form, the following responses were made:

    ·The applicant responded “No” to a question as to whether or not the applicant had contributed to an industry training fund in the past 12 months.

    ·The applicant stated that they had one Australian employee (permanent resident or citizen).

    ·The payroll figure for the previous 12 months was $200,000 and gross expenditure on training Australian citizens or permanent residents in the previous 12 months was $2,200. 

46. Wages and superannuation for the 2016/17 financial year were $209,555 and $19,907, totalling $229,462 and for 2017/18, they were $168,013 and $15,672, totalling $183,685. Therefore, if the applicant spent more than $2,295 on the training of Australian employees, the training requirement was met.

47. According to an organisational chart provided to the Department, 13 positions were identified, of which four were permanent, one was part-time and eight were casual. Only one position, that of the full-time chef, was identified as being a permanent resident.

48. The applicant provided an invoice for $2,500 dated 28 November 2016 from Oz WA Training Pty Ltd which was for a “contribution to Training Benchmark B”.[1]

    [1] A second invoice dated 14 November 2017 was also submitted, for $3,200. That falls outside the relevant period. The second invoice was from Oz WA Training Pty Ltd and was for “fee towards the training of Australian employees”. This was later than the relevant period which ended on 25 August 2017.

49. Mr Kumar Guarav from the training company provided a letter to the Department which stated that Mr Rajender Singh was trained in November 2016 in “Influence of quality of food” and “workplace friendliness”. According to the organisational chart, Mr Rajinder Singh is the full-time chef and a permanent resident.

50. There were discrepancies in the spelling of the first name in that the Medicare card and the letter from Mr Guarav referred to Mr Rajender Singh whereas the other records referred to Mr Rajinder Singh.

51. The applicant submitted PAYG payment summaries for Mr Rajender Singh for 2015/16, 2016/17 and the period 1 July 2017 to 31 October 2017. His address according to those documents was York Street, Englewood WA 6052. The correct suburb name is Inglewood, so clearly there was a misspelling. The Tribunal notes that in both cases (Rajinder v Rajender and Inglewood v Englewood) the difference in spelling is between an I and an E. The Tribunal is of the view that these were simply spelling mistakes. 

52. The applicant also provided the Department with bank statements that record a number of bank transfers in the amount of $1,683.07, described as “Rajinder salary”. The Tribunal is satisfied that Mr Rajender Singh was on the payroll of the business, that his name was misspelt in some records and that he was an Australian citizen or permanent resident.

53. In light of the foregoing, the Tribunal finds that $2,500 was spent on training an Australian employee or permanent resident during the relevant period of one year, when expenditure on training of $2,295 or more would have exceeded the threshold amount.

54. Accordingly, the requirement in r.5.19(3)(f) is met.

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

55. 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. 

56. There was no evidence before the Tribunal of any adverse information concerning the nominator or a person associated with the nominator.

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

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

58. 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.

59. There was no evidence before the Tribunal of anything other than a satisfactory record of compliance with the laws of Commonwealth and the state of Western Australia, which is where the applicant operates the business and employs people, in relation to workplace relations.

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

    CONCLUDING PARAGRAPHS

61. 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

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

    Susan Hoffman
    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

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; 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.