ALMA FOOD PTY LTD (Migration)

[2020] AATA 4733

ALMA FOOD PTY LTD (Migration) [2020] AATA 4733 (17 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ALMA FOOD PTY LTD

CASE NUMBER:  1815548

HOME AFFAIRS REFERENCE(S):          BCC2017/2030463

MEMBER:Phoebe Dunn

DATE:17 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 August 2020 at 12:36pm

CATCHWORDS
MIGRATION – nomination –Temporary Residence Transition nomination stream – training benchmark commitments and obligations –  actively and lawfully operating a business in Australia –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 8 May 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 8 June 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 delegate was not satisfied that the applicant had demonstrated it had met its training benchmark commitments and obligations during the period of the applicant’s most recent standard business sponsorship (SBS), and there was no reason to disregard those requirements.

5. The applicant, represented by the Director and business owner, Mr Carmelo Bisignano, appeared by video-conference before the Tribunal on 5 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

6. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video-conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video-conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. Post hearing submissions were requested by 19 August 2020 and were received on 7 August 2020.

8. The applicant was represented in relation to the review by its registered migration agent, Ms Elizabeth Wisser.

9. 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

10. 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.

11. At the hearing of this matter Mr Bisignano gave detailed oral evidence regarding the nature of the business and the nominee’s role.

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

12. 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.

13. The application was made on the prescribed form and was accompanied by the requisite fee and certification.  The application identified the nominee, Ms Keiko Yamamoto, who at the time of application was the holder of a Subclass 457 visa granted on 7 July 2014, to work in the nominated position of Pastrycook (ANZSCO 351112). The Tribunal is satisfied based on the employment documents for the nominee, that the occupation identified is the same occupation carried out by the nominee as the holder of a Subclass 457 visa.

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

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

15. 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.

16. Departmental records show that the applicant was most recently approved as a standard business sponsor on 3 March 2014 for a period of three years to 3 March 2017 and was the standard business sponsor who last identified the nominee in a nomination made under s.140GB of the Act. Accordingly, r.5.19(3)(b)(i) is met.

17. The Tribunal has had regard to ASIC documentation, which confirms that the business was registered on 16 December 2009 and is actively operating. The Tribunal has also received current information evidencing that the applicant is actively and lawfully operating a business in Australia, including profit and loss statements from financial year (FY) 2015 to FY2017, financial statements for FY2018 and FY2019, business tax returns for FY2018 to FY2019, and business activity statements (BAS) for FY2017 to the third quarter of FY2020. Accordingly, r.5.19(3)(b)(ii) is met.

18. The Tribunal has also had regard to Departmental records and is satisfied that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA or r.2.59(h) of the Regulations. Accordingly, r.5.19(3)(b)(iii) is met.

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 two of the three 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 two years in the three years immediately before the application.

21. In this case, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 visa on 7 July 2014 to work as a ‘Pastrycook’ (ANZSCO 351112) and this nomination application was lodged on 8 June 2017.

22. The Tribunal has considered documentary evidence, including the nominee’s most recent employment contract and position description dated 6 April 2020, the nominee’s PAYG tax documents for FY2015 to FY2020, Notices of Assessment from FY2015 to FY2019 and payslips from 29 September 2014 to 16 June 2019.  On the basis of the information before it, the Tribunal is satisfied that the nominee has worked for the applicant full-time in the position of Pastrycook for at least two years in the three years immediately before the application and is further satisfied that the position carried out by the nominee is that of a Pastrycook.

23. 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)

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 two years on terms that do not expressly preclude the possibility of an extension.

25. At the hearing of this matter Mr Bisignano gave detailed oral evidence about the impact of COVID-19 on the business and the role of the nominee.  Mr Bisignano noted that the nominee had been stood down in March 2020 when the restaurant was forced to close due to government restrictions and had briefly recommenced when restrictions eased in June 2020.  Mr Bisignano noted that while they had been successful in establishing a take-away business for the restaurant, it had not proven possible to do the same with the patisserie business and he had made the difficult decision to stand the nominee down, in consultation with the nominee.   Mr Bisignano stated that it was his intention that the nominee recommence work in the nominated position as soon as government restrictions permit the reopening of the restaurant for in-house dining, noting that the nominee is integral to the success of the business.

26. Mr Bisignano stated that the business remained financially viable and capable of supporting the employment obligations to the nominee for at least the next two years.  Mr Bisignano stated that the business was accessing Federal and State Government assistance during the COVID-19 pandemic and had sufficient reserves to continue operations.  Mr Bisignano noted that the newly introduced takeaway operations were covering the running costs of the business and noted that he could make a contribution to the business if needed. Mr Bisignano stated that it is essential that the nominee recommence work as soon as restrictions permit to ensure that the business is restored to full operations as soon as possible.

27. The Tribunal has considered the most recent financial information relating to the business and is satisfied that the business is profitable.  The Tribunal has considered the nominee’s current and previous signed employment contracts in respect of the nominee outlining the terms and conditions of employment and providing for a minimum of four years of employment from the date of approval of the nominee’s Subclass 186 application, with an option to extend after that period.

28. The applicant has also provided copies of the nominee’s payslips and PAYG Summaries for FY2015 to FY2020 and payroll information from 3 March 2014 to 2 March 2017, which indicate that the nominee’s base salary for the two years prior to lodgement of the application was $54,000 per annum plus superannuation at the current legislated rate. 

29. The Tribunal has carefully considered the submissions and documentation received from the applicant and finds that the applicant has established that the nominee will be employed on a full-time basis for at least two years on terms that do not expressly exclude the possibility of extension.

30. 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)

31. 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.

32. There are no other Pastrycooks working for the applicant performing equivalent work in the same workplace at the same location.  At the hearing, Mr Bisignano gave oral evidence that when the nominee commenced working for the business, she was located at the nominee’s Clifton Hill restaurant and patisserie where the former Director and co-owner of the business managing the business and training the nominee in the art of Italian patisserie.  Mr Bisignano stated that when he sold the Clifton Hill restaurant and patisserie to the former co-owner, the nominee moved to the city restaurant as he needed a Pastrycook at that location.

33. The applicant has provided a market salary review for the nominated position which confirms that the nominee’s salary is consistent with market expectations.  The terms and conditions of the nominee’s contract are also consistent with the Restaurant Industry Award 2020.

34. Accordingly, the Tribunal finds that the terms and conditions applicable to the position are no less favourable than those that would be provided to a permanent resident performing equivalent work in the same workplace at the same location.

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

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

36. 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.

37. The determinative issue in this case is whether the applicant has fulfilled its training commitments and obligations under either Training Benchmark A or B in the period of the applicant’s most recent sponsorship approval.

38. The most recent standard business sponsorship (SBS) for the applicant was approved on 3 March 2014 for a period of three years to 3 March 2017. In written submissions to the Tribunal, the applicant has stated that it has met its training commitments and obligations under Training Benchmark B.

39. At the hearing of this matter, the Tribunal noted that it had evidence before it of the applicant meeting its training benchmark commitments and obligations in the second and third years of the most recent SBS (3 March 2015 to 2 March 2016 and 3 March 2016 to 2 March 2017), but not in the first year (from 3 March 2014 to 2 March 2015).  The Tribunal noted on the basis of the information before it, the Tribunal had reached the preliminary view that the applicant had spent more than the minimum 1% required on training as a total aggregate over the three years. The Tribunal requested that the applicant provide further evidence of meeting the commitments and obligations in the first year of the most recent SBS or provide a further submission addressing this issue of whether the applicant was requesting the Tribunal to exercise its discretion to disregard any failure to meet the training benchmark commitments and obligations in the first year of the most recent SBS on the basis that the total amount spent on training over the three-year period was more than 1% of the total payroll of the business for the relevant period as an aggregate.

40. In a written submission dated 6 August 2020 received by the Tribunal on 7 August 2020, the applicant’s representative has referred to IMMI 13/030 in force at the time of application and Departmental policy (PAM3) which provides that an aggregate figure of expenditure on training over the most recent SBS may be acceptable in circumstances where the training benchmark requirements have not been met in any one year of the relevant SBS period. The applicant has requested that the Tribunal exercise its discretion under r.5.19(3)(f)(ii) to accept evidence of an aggregate of expenditure over the most recent SBS period of more than the minimum 1% required to meet Training Benchmark B.

41. The Tribunal has considered the following evidence of expenditure on training during the most recent SBS:

    a.Receipt dated 30 June 2015 from Complete Hospitality for industry related training in the amount of $1905.00, together with evidence of employees who undertook the training and their citizenship status (year two of the most recent SBS);

    b.Receipt dated 15 June 2016 from Michelle USCI for industry related training in the amount of $2,640.00, together with evidence of employees who undertook the training and their citizenship status (year three of the most recent SBS); and

    c.Receipt dated 1 March 2017 from Michelle USCI for industry related training in the amount of $2,717.00, together with evidence of employees who undertook the training and their citizenship status (year three of the most recent SBS).

42. The Tribunal has considered the financial statements and other records before it and finds that in year one of the most recent SBS the applicant’s total payroll was approximately $153,823.72, equating to a requirement to spend at least $1,538.23 on training Australian citizen and permanent resident employees on relevant industry content under Training Benchmark B. In year two, the total payroll was approximately $183,057.70, equating to a requirement to spend at least $1,830.57, and in year three the total payroll was approximately $345,330.80, equating to a requirement to spend at least $3,453.30 on training Australian citizen and permanent resident employees on relevant industry content under Training Benchmark B. On the basis of the evidence before it, the Tribunal finds that the applicant met its training benchmark commitments and obligations in years two and three of the most recent SBS, but not in year one of the most recent SBS. Accordingly, the Tribunal finds that the applicant did not meet the requirements of r.5.19(3)(f)(i).

43. Notwithstanding the above, the Tribunal has considered whether it is reasonable to exercise its discretion under r.5.19(3)(f)(ii) to disregard that failure, on the basis that the total expenditure on training during the three years of the most recent SBS exceeded the minimum 1% requirement under Training Benchmark B. The Tribunal notes that the applicant spent a total of $7,262.00 on industry related training for Australian citizens and permanent resident employees across the three years of the most recent SBS, exceeding 1% of the total payroll of $682,212.22 across the three years of the most recent SBS. The Tribunal also notes evidence of continued expenditure on industry related training for employees.

44. The Tribunal notes that Departmental policy[1] provides that it may be reasonable to disregard circumstances where a nominator has not met its training benchmark commitments and obligations in any year that they were approved as a standard business sponsor where an aggregate of expenditure on training over the term of the nominator’s most recent SBS is commensurate with the total training commitment for the period.  The Tribunal notes that it is not bound by Departmental policy. The Tribunal has considered the evidence before it of the applicant’s expenditure on industry related training and considers that the applicant has made a genuine effort to meet its training benchmark commitments and obligations and continues to do so and that its total expenditure on training during the relevant period exceeded its commitments and obligations. 

    [1] PAM, Div/Reg 5.19 – approval of nominated positions (employer nomination)

45. Accordingly, having regard to IMMI 13/030 and relevant policy, the Tribunal considers it is reasonable to exercise its discretion under r.5.19(3)(f)(ii) to disregard the requirements in r.5.19(3)(f)(i) to fulfil its commitments and obligations in each year of the most recent SBS on the basis that the total amount spent on relevant training during the period of its most recent SBS under Training Benchmark B exceeded the total payroll for the relevant period.

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

1. There is no evidence before the Tribunal to indicate that there is adverse information known to Immigration about the applicant or an associated person.

2. Accordingly, 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. There is no evidence before the Tribunal to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations where it operates a business. 

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

6. 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

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

   Phoebe Dunn
   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.