Aussie Dera Ltd Atf Aussie Dera Unit Trust (Migration)

[2019] AATA 3103

Aussie Dera Ltd Atf Aussie Dera Unit Trust (Migration) [2019] AATA 3103 (29 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Aussie Dera Ltd Atf Aussie Dera Unit Trust

CASE NUMBER:  1817823

DIBP REFERENCE(S):  BCC2017/2328914

MEMBER:Cathrine Burnett-Wake

DATE:29 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 29 March 2019 at 12:29pm

CATCHWORDS

MIGRATION – nomination – Temporary Residence Transition nomination stream – nomination did not satisfy – applicant had not met training benchmarks – approval was not subject to training requirements and obligations – occupation identified is the same occupation as that carried out by him – confirms the nominee's employment with the nominator – financial capacity to maintain the nominee's employment –salary is no less favourable – nominee will be employed on a full-time basis – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 140GB, 245AR(1), 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223(4), rr 1.20DA, 2.59, 2.68(i), 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 29 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 30 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 (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.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i)(A) of the Regulations because it was found the applicant had not met training benchmarks for the most recently approved sponsorship agreement period.

5. The Tribunal did not consider it necessary to conduct a hearing as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. The applicant was represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

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

9. 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.

10. On the basis of the information in the Department's file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.

11. The application for approval identifies, Mr Muhammad ASIF, the nominee who, according to Departmental records, holds a Subclass 457 visa valid from 3 June 2015 through to 3 June 2019 that was granted on the basis of satisfying subclause 457.223(4) of Schedule 2.

12. The occupation identified in the application is a Cook (ANZSCO 351411).  The Tribunal is satisfied, based on the employment documents for the nominee, that the occupation identified is the same occupation as that carried out by him as the holder of a Subclass 457 visa. The Tribunal is accordingly satisfied that this occupation carries the same 4-digit code (3514) 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. Departmental records confirm that the nominator was the standard business sponsor who last identified, Mr ASIF, the nominee, in a nomination made under s.140GB of the Act. The nominator 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).

16. The Tribunal is satisfied on the basis of the material before it, including the business' registration documents, activity statements, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating a restaurant located on Sydney Road in Coburg, specialising in Pakistani cuisine.

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

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

18. 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.

19. In this case, r.5.19(3)(c)(i) is the relevant provision. The nomination was lodged on 30 June 2017. The nominee was granted the Subclass 457 visa to work in the nominated occupation of Cook on 3 June 2015.

20. The Tribunal has had regard to payslips along with the payroll activity summary document on the file, which confirms the nominee's employment with the nominator from 30 June 2017 until current.

21. 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)

22. 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.

23. The Tribunal has had regard to the signed offer of employment and the letter of guarantee dated 29 June 2017, confirming the nominee will be employed on a full-time basis for at least 2 years; and that his employment contract does not expressly exclude the possibility of extending the period of employment.

24. The Tribunal has had regard to the documents provided on review, including the nominator's financial statements, company tax returns and BAS. The financial statements, prepared by the applicant’s account, demonstrate that the business is in a financially sound position, and has made a consistent profit since 2015.

25. The Tribunal is satisfied on the totality of the evidence that the nominator has the financial capacity to maintain the nominee's employment as they have done since 2015.

26. The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending the period of employment.

27. 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)

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 evidence on file indicates the nominee's base salary is $55,666 plus superannuation. It was noted in the application form that there is no Australian performing equivalent work at the same location, which is also supported by the organisational chart provided to the Tribunal.

30. The Tribunal is satisfied that the Restaurant Industry Award 2010 includes the occupation of Cook. Under this award the adult full time weekly rate for a Cook – grade 1 is $742.30 (or approximately $38,599.60 per year), $767.80 per week for a Cook – grade 2 (or approximately $39,925.60 per year), $809.10 per week for a Cook – grade 3 (or approximately $42,072.20 per year), $859.80 for a Cook – grade 4 (or approximately $44,709.60 per year), and $882.80 for a Cook – grade 5 (or approximately $45,905.60 per year), in addition to which there are various loadings for weekend work and other overtime.

31. It is not entirely clear to the Tribunal whether this would be applicable to the nominated position or not. The applicant did not claim to have based the nominee's salary on this, but instead used market rates. Therefore, the Tribunal considers it appropriate to have regard to 'relevant information' which may include, but is not limited to, local knowledge and evidence of appropriate terms and conditions of employment, including information from employer associations and unions and broader labour market data including the Australia Bureau of Statistics (ABS) Employee Hours and Earnings Survey, the Australian Government Job Outlook website, remuneration surveys and job vacancy advertisements.

32. The Tribunal has consulted a range of sources of information, including:

    ·    the Government's Job Outlook website (accessed March 2019) which indicates that the average weekly earnings before tax for Cooks are $800 before tax (or $41,600 annually, not including superannuation) (data stated to be based on an Australian Bureau of Statistics survey undertaken in August 2015):

    ·    Payscale website ( ) report (accessed March 2019) provides a salary range for a Cook in Australia of $40,635 to $56,155, with the median salary being $53,139: >

    The Tribunal is satisfied from the most recent salary survey information from Job Outlook, that the salary package attached to the nominated position is within the range of salaries for the occupation.

33. On balance, the Tribunal is satisfied that the nominee's salary is no less favourable than those that would be offered to the relevant Australian equivalent.

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

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

35. 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.

36. The applicant’s representative provided written submissions in relation to meeting training commitments and obligations, which state in part:

    …Our most recent standard business sponsorship (SBS) was approved for the period 31/10/2018 till 31/10/2023. Therefore, if the sub regulation 5.19(3)(f)(i)(A) is applied on the present date (time of decision), then the business needs to meet sponsorship obligations starting from 31/10/2018. However, from 18/08/2019, with the introduction of SAF levy, the requirements for meeting training benchmarks have been removed…

37. The Tribunal has checked the Department systems, and the applicant’s most recent standard business sponsorship approval occurred on 31 October 2018.

38. From 18 March 2018, a number of criteria relating to approval as a standard business sponsorship are no longer applicable even in relation to applications for approval made prior to that date. These were:[1]

    ·if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more - the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing (r.2.59(d));

    ·if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months - the applicant has an auditable plan to meet the benchmarks specified in the written instrument (r.2.59(e));

    ·if the applicant has previously been a standard business sponsor, either the applicant fulfilled any commitments and complied with applicable obligations relating to training requirements, or it is reasonable to disregard that requirement (r.2.59(j)).

    [1] r.2.59(d), (e), and (j) were repealed by F2018L00262, and specified to no longer apply to applications for approval as a standard business sponsor made, but not finally determined before 18 March 2018 (see clause 6704(2) of Schedule 13 of the Regulations).

39. It should be noted that even if failure to satisfy one of these criteria was the reason for a Departmental delegate (before 18 March 2018) refusing to approve an applicant as a standard business sponsor, this will no longer be relevant to reviews conducted by the Tribunal.

40. For subclass 482 nomination applications lodged on or after 12 August 2018, sponsors (or individuals who have applied to become a standard business sponsor or a labour agreement sponsor) must pay the applicable nomination training contribution charge (referred to as a contribution to the SAF or the ‘SAF levy’). The nomination training contribution charge is payable in full at the time of lodging a nomination application. The payment of a SAF levy replaces the training benchmark requirements and obligations relating to training requirements for approval as a standard business sponsor.

41. The Tribunal finds that as the applicant’s most recent sponsorship approval as a standard business sponsor was on 31 October 2018 and because this approval was not subject to training requirements and obligations, the requirements for the applicant to have met them for the purposes of satisfying r.5.19(3)(f) are no longer applicable.

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

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

43. 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. 

44. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.

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

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

46. 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.

47. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

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

49. 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

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

    Cathrine Burnett-Wake
    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.