ALD Pty Ltd (Migration)

[2019] AATA 4584

ALD Pty Ltd (Migration) [2019] AATA 4584 (3 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ALD Pty Ltd

CASE NUMBER:  1807840

DIBP REFERENCE(S):  BCC2016/4167832

MEMBER:Antonio Dronjic

DATE:3 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 October 2019 at 2:00pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – financial capacity to maintain nominee’s future employment – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), 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 5 March 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 9 December 2016. 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 the Temporary Residence Transition nomination stream. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the delegate was not satisfied on the evidence that the applicant has a financial capacity to provide a minimum of two years’ full-time employment to the nominee.

4. The applicant applied to the Tribunal on 22 March 2018 for review of the delegate’s decision and with the application submitted a copy of the primary decision.

5. On 5 April 2019, the applicant’s representative submitted:

   ·     A copy letter from the applicant’s accountants dated 26 March 2018 stating that the applicant can meet the sponsorship obligations and is able to pay the nominated person annual salary and superannuation in accordance with legal requirements; and

   ·     Financial statements for the nominating business for the years ending on 30 June 2016 and 30 June 2017.

6. On 31 May 2019, the Tribunal wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets all of the requirements of r.5.19(3).

7. On 14 June 2019, the applicant’s representative submitted:

   ·     ASIC company extract for the nominating business;

   ·     Financial statements for the nominating business (Espresso Nero Trust) for the year ending on 30 June 2015;

   ·     Financial statements for the nominating business (Espresso Nero Trust) for the year ending on 30 June 2018;

   ·     A copy of the business activity statement (BAS) from 2016 to 2019;

   ·     A copy of the organisational chart listing the employees and their positions in the business;

   ·     Nominee’s job description;

   ·     Copies of Commonwealth Bank business complete access statement accounts for the nominating business evidencing the payment of salary to the nominee from 2014 to 2019;

   ·     A copy of the nominee’s PAYG payment summary for past three years;

   ·     Nominee’s payslips from for past 3 Years;

   ·     A copy of the employment agreement between the nominating business and the nominee dated 11 June 2019;

   ·     A copy of the Department’s Approval of Sponsorship Notification;

   ·     A copy letter from Mr Totos, the managing director of the nominating business dated 12 June 2019;

   ·     Market Salary Survey; and

   ·     Documentary evidence related to meeting training requirements.

8. On 19 June 2019, the Tribunal wrote to the applicant advising that it considered material before it and was unable to make a favourable decision on this material alone and invited the authorised person to appear before the Tribunal on behalf of the nominating business at a hearing on 1 October 2019.

9. On 18 September 2019, the applicant’s representative provided legal submissions stating inter alia that in the last few years, the business has achieved a consistent revenue and profit every year. The representative provided the following breakdown of the annual turnover for the business:

Financial Year	Turnover	Gross Profit	Net Profit
2014/2015	1,077,528	588,923	87,052
2015/2016	1,106,738	587,162	123,707
2016/2017	1,155,093	650,576	177,283
2017/2018	1,151,551	611,791	157,567

1. The representative further submitted:

   ‘We would like to stress on the fact that the visa applicant has been employed with the Sponsor’s business for a number of years and has demonstrated his capability and capacity to effectively carry out all duties and responsibilities of the role. Being a key staff, he has been a part of the financial success and stability of the business and that is the reason business is nominating him for the 186 visa.

   The Sponsor further instructs that the Visa Applicant is not associated or related with the Sponsor’s company directors or owners of the business, and that the relationship between the Visa Applicant and the Sponsor is professional and as an employer-employee’.

2. On 26 September 2019, the Tribunal requested the following documents from the applicant:

   ·     PAYG for the nominee from 1 July 2014 to 30 June 2015; and

   ·     Evidence the applicant fulfilled 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 (being 24 May 2014 to 26 May 2017).

3. On 30 September 2019, the applicant’s representative submitted the requested documents.

4. Mr Nicholas Totos, the managing director of the nominating business, appeared before the Tribunal on 1 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ken Wallace (Accountant), who is the applicant's accountant.  Its registered migration agent represented the applicant in relation to the review. The representative attended the Tribunal hearing.

5. At the commencement of the hearing, the applicant’s representative submitted:

   ·     Financial statements for the nominating business (Espresso Nero Trust) for the year ending on 30 June 2019; and

   ·     Copy of the passport identification page of Ms Mary Familos, an Australian citizen and the employee of the nominating business who attended training course in January 2016.

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. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

10. Therefore, it finds that r.5.19(3)(a) is met.

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

11. 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.

12. The Department’s records indicate that the applicant was approved as a standard business sponsor between 26 May 2014 and 26 May 2017. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mr Suraj Shahi Khadgi, and nominated him for a Subclass 457 visa. The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.

13. In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from the financial documents provided from the 2016/17 to 2018/19 financial years and the evidence of its current ABN and ASIC registrations that the applicant is actively and lawfully operating a business in Australia.

14. Given the above, the Tribunal finds that the requirement in r.5.19(3)(b) is met.

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

15. 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.

16. The Tribunal has reviewed the occupations specified in IMMI 13/067 for the purposes of the second dot point above, and is satisfied that the nominated occupation of Cook is not included in it. Accordingly, the applicant must meet the requirements of the first dot point above.

17. The Tribunal is satisfied on the evidence before it that:

    ·the nomination was made on 9 December 2016;

    ·the relevant 3-year period is therefore 9 December 2013 to 9 December 2016;

    ·the nominee was granted a Subclass 457 visa on 9 October 2014, which was valid until 9 October 2018;

    ·the nominee commenced his employment at the nominating business on 9 October 2014 and continues to work there as a full-time cook to date; and

    ·He had therefore worked for the applicant in the nominated position as the holder of a Subclass 457 visa for more than 2 years in the 3-year period immediately prior to the nomination application being lodged.

18. Accordingly, given the above and PAYG summary statements for the nominee provided to the Department and the Tribunal, the Tribunal is satisfied that the requirement in r.5.19(3)(c) is met.

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

19. 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.

20. The applicant provided the Tribunal with a copy of an offer of employment between the applicant and the nominee dated 11 June 2019, which states, among other things, that the employment was offered for a period of no less than two years from the date of a Subclass 186 visa grant. The annual salary was set to be $58,160 excluding the superannuation.

21. The Tribunal is satisfied, based on the employment agreement referred to, that the terms and conditions of the nominee’s employment do not include an express exclusion of the possibility of extending the period of employment. The Tribunal finds that the applicant is and has been employed with the nominating business from October 2014 and that the business demonstrated its financial capacity to pay his wages for almost four years.

22. The Tribunal considered letter from the applicant’s accountants dated 26 March 2018, which confirms the applicant’s financial capacity to pay the nominated person annual salary and superannuation in accordance with the employment agreement.

23. Based on the documentary evidence provided on behalf of the applicant, including the applicant’s most recent contract of employment, PAYG summary statements to date, pay slips and the applicant’s financial statements, the Tribunal is satisfied that the nominee will continue to be employed on a full-time basis for at least 2 years, and that the terms and conditions of his employment do not expressly exclude the possibility of extending her period of employment.

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

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

25. 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.

26. The Tribunal is satisfied that there is not in fact another Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee. The Tribunal therefore needs to be satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

27. The nominee’s most recent contract of employment for the nominated position dated 11 June 2019 provides that the nominee’s salary is $58,160 excluding the superannuation.

28. Information from suggests an average salary of $53,148 per annum for cooks within the range between $42,000 and $56,000. The nominee’s overall salary is within the range suggested by >

    From the above, the Tribunal is satisfied that the proposed salary associated with the nominated position is within the salary range of what an equivalent Australian employee would be paid.

29. The Tribunal is further satisfied that the contract of employment dated 11 June 2019 for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).

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

30. 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.

31. The Tribunal notes that the applicant’s most recent approval as a standard business sponsor (as in force as at the time that this nomination was made) ran between 26 May 2014 and 26 May 2017.

32. The training requirements applicable for an established business with approval as a standard business sponsor in that period were set out in written instrument IMMI 13/030 as follows:

    ·A) recent expenditure by the business to the equivalent of at least 2% of 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.

33. IMMI 13/030 provided that expenditure that can count towards Training Benchmark B includes:

    ·paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy

    ·funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy

    ·employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business

    ·employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job

    ·evidence of payment of external providers to deliver training for Australian employees

    ·on-the-job training that is structured with a timeframe and clearly identifies an increase in the skills at each stage, and demonstrating:

    • the learning outcomes of the employee at each stage;
    • how the progress of the employee will be monitored and assessed;
    • how the program will provide additional and enhanced skills;
    • the use of qualified trainers to develop the program and set assessments; and
    • the number of people participating and their skill/occupation.

34. However, it does not include expenditure on training that is:

    ·delivered on the job, other than on-the-job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’

    ·confined to only one or a few aspects of the business’s broader operations, unless the training is in the primary business activity

    ·only undertaken by persons who are not Australian citizens or permanent residents

    ·only undertaken by persons who are principals in the business or their family members

    ·only relating to a very low skill level having regard to the characteristic and size of the business.

35. From the material provided to the Department and the Tribunal, the Tribunal accepts that the applicant seeks to meet Training Benchmark B. The Tribunal has assessed the most recent information provided on this basis. This indicates that the applicant made the following payments:

    ·$2,640 on 12 March 2014 (payment made prior to approval of the latest sponsorship on 26 May 2014);

    ·$1,320 on 25 May 2015. Training provided to Ms Familos and Mr Nicoletti – both of them Australian citizens;

    ·$1,540 on 30 June 2015. Training provided to Ms Familos, an Australian citizen;

    ·$1, 501, 50 on 15 January 2016. Training provided to Ms Familos and Mr Kanjere – both of them Australian citizens;

    ·$880 on 29 June 2016. Training provided to Mr Rajpal Singh, an Australian permanent resident; and

    ·$1,980 on 27 June 2017. Training provided to Mr Rajpal Singh, an Australian permanent resident.

36. The Tribunal is satisfied that the above payments are acceptable for the purposes of Training Benchmark B.

37. From the financial statements that have been provided for 2015/16, 2016/17, and 2017/18 the Tribunal is satisfied that the applicant’s payroll figures (wages, contract payments and superannuation) were as follows:

    ·2014/15: $114,670 (1% of which is approximately $1,146);

    ·2015/16: $142,207 (1% of which is approximately $1,422); and

    ·2016/17: $132,274 (1% of which is approximately $1,322).

38. Based on the evidence before it, the Tribunal is satisfied that the applicant complied with the applicable sponsorship obligations relating to the applicant’s training requirements during the period of the most recent sponsorship approval and has fulfilled commitments made relating to meeting the training requirements.

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

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

40. 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. There is nothing before the Tribunal to show any adverse information known to the Department about the relevant business or anyone associated with it.

2. Accordingly, the Tribunal on the evidence before it is satisfied that the requirement in r.5.19(3)(g) is met.

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

3. 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.

4. On 28 June 2019, the FWO informed the Tribunal (Tribunal folio 82) that the FWO conducted searches for the past 5 years as to:

   ·Whether there is an ongoing investigation;

   ·Any moneys recovered;

   ·Whether a letter of caution/infringement notice was issued; and

   ·Whether an Enforcement tool was implemented.

5. The FWO advised the Tribunal that no documents were located within the scope of the Tribunal’s request. There is nothing before the Tribunal to indicate that the applicant does not have a satisfactory record of compliance with laws relating to industrial relations.

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.

   Antonio Dronjic
   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.