B & T INVESTMENTS (NT) PTY LTD (Migration)

B & T INVESTMENTS (NT) PTY LTD (Migration) [2021] AATA 3158 (18 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  B & T INVESTMENTS (NT) PTY LTD
CASE NUMBER:  1827779
HOME AFFAIRS REFERENCE(S):          BCC2017/2293839
MEMBER:Peter Emmerton
DATE:18 August 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 18 August 2021 at 1:13pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – adverse information known to department – previous sponsorship bar – relatively minor breaches, one-year bar and new approval granted – reasonable to disregard information – stable business rebounding from COVID-19 restrictions – challenges of recruiting and retaining staff in regional area – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 September 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 28 June 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).
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 reg 5.19(3)(g)(ii) of the Regulations because they were not satisfied it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator because of a 1 year Bar on future SBS approvals which had been in effect until 13 July 2017.
The applicant was represented in relation to the review by its registered migration agent.
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
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.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
The application must be compliant: r.5.19(3)(a)
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.
The company applied on the approved form and paid the required application fee. The application therefore satisfies r.5.19(3)(a)(i).
The application identifies Ms Suphalak Pochamni for the nominated occupation of Café or Restaurant Manager, ANZSCO 141111, Skill level 2. The Department’s movement details documentation and application form confirm that her original 457 visa was granted on 10 June 2015 for 4 years. The Tribunal is satisfied from this evidence that the nominee held a Subclass 457 (Temporary Work (Skilled)) visa at the date the application was made on 28 June 2017. The applicant, therefore, satisfies the requirement in r.5.19(3)(a)(ii).
Regulation 5.19(3)(a)(iii) requires the applicant to identify an occupation with the same ANZSCO unit code as the occupation carried out by the holder of the Subclass 457 visa identified in the application. The company nominated the position of Café or Restaurant Manager, ANZSCO 141111 in the application for approval of the nomination. The Tribunal has carefully considered the tasks undertaken by the nominee and compared these to the tasks for Café or restaurant manager listed in ANZSCO 141111. The Tribunal is satisfied that the nominee is undertaking the role of Café or Restaurant Manager within the business. The Tribunal finds that the applicant has identified the occupation of Café or Restaurant Manager, ANZSCO 141111, which has the same (4-digit occupation unit) group code as the occupation carried out by Ms Suphalak Pochamni. Accordingly, the Tribunal finds that the applicant satisfies r.5.19(3)(a)(iii).
Given the above findings, the requirements in r.5.19(3)(a) are met.
Status of the nominator r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant Standard Business Sponsor, (SBS) 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.
The Department's records confirm the company was approved as a Standard Business Sponsor, (SBS), most recently for 5 years from 18 June 2020 until 18 June 2025. The Tribunal has had regard to the business registration and ABN records on the ASIC public databases, as well as a range of financial records for FY 2018-FY 2020 and the ATO Tax Returns for FY 2019 and FY 2020 for the business, provided by the applicant to the Tribunal. The Tribunal has in addition reviewed the restaurant website and a number of associated customer review web sites.
The Tribunal accepts from this that the applicant is currently registered as a business, B&T Inverstments (NT) Pty Ltd, (ABN 93 147 913 031). ASIC records show that it is currently registered and due for renewal on 17 December 2021. The Tribunal is satisfied based on the fore-mentioned evidence that the applicant is actively and lawfully operating a business in Australia. It therefore satisfies regulation r.5.19(3)(b)(ii).
The Department's records confirm the applicant was the Standard Business Sponsor who last identified Ms Suphalak Pochamni in a nomination under section 140GB of the Act. In that case, it satisfies regulation r.5.19(3)(b)(i).
The Department's records also confirm the applicant did not obtain approval as a Standard Business Sponsor on the basis that it was operating a business outside Australia. In that case, it meets the criteria in regulation r.5.19(3)(b)(iii).
Given the above, the requirements in r.5.19(3)(b) are met.
Previous employment of the nominee: r.5.19(3)(c)
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 they hold 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 they were 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.
The Tribunal is satisfied from the evidence presented in the original visa application, provided by the Department and evidence provided by Ms Suphalak Pochamni and the nominator, that she has been employed as a Café or Restaurant Manager by the nominator from 1 April 2015 and prior to that as Trainee Restaurant Manager from 1 February 2010.
The Tribunal finds from the above evidence that Ms Suphalak Pochamni was employed full-time in Australia, as a Café or Restaurant Manager for more than two of the three years preceding the nomination application made on 28 June 2017. During this period, she was the holder of a Subclass 457 visa granted on 10 June 2015.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Term of employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal notes that the business is a moderately sized hospitality business in a very busy part of Darwin, NT. It appears to be relatively stable, with steady retained profit. It is known by the Tribunal that this business relies upon a combination of passing trade, local patronage and tourism, which contributes to its’ sustainability. The nominee was paid throughout this period and has been employed and paid by the business for a period approximating 11 years in this role and a less senior role prior to becoming the Café or Restaurant Manager. This was demonstrated to the Tribunal by the provision of a range of ATO Tax Returns, BAS Statements, Profit and Loss statements as well as PAYG Summaries and Pay Slips for the visa applicant.
The Tribunal has had the benefit of a substantial amount of additional data and the passage of time since the original nomination and its’ subsequent refusal. It acknowledges that this is a moderately sized business and it has formed the opinion through analysis of the financial statements and ATO documentation that the nominator has demonstrated their capacity to be able to pay the full-time salary for the nominated position for at least 2 years.
The Tribunal has had regard to the most recent signed Employment Agreement, dated 4 May 2021, with a salary of $58,000 plus the Superannuation Guarantee of 9.5% based upon 38 hours per week. The Tribunal is satisfied that this falls in the mid quartiles of remuneration for similar roles.
The Tribunal notes from the comprehensive financial documentation provided that the business suffered some impacts from Covid-19 due in part the cessation of international tourism and reduced national visitors. It also notes that revenues appear to have rebounded from the more severe effects felt initially.
The Tribunal is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and condition of employment: r.5.19(3)(e)
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.
The Tribunal has been provided with the nominee’s current employment contract. The Tribunal accepts, having researched the salaries offered for similar positions that the nominated salary of $58,000 per annum plus Superannuation of 9.5%, as appropriate and is reflective of her experience relevant to the nominated position. It has also assessed the other conditions of employment stated in the contract of employment and is satisfied that they meet current workplace legislation.
The Tribunal acknowledges the challenges of recruiting and retaining qualified Café and Restaurant Managers throughout large portions of Australia and understands that this issue is accentuated when organisations require sophisticated techniques and competencies. The Tribunal is well acquainted with the highly transient nature of Darwin and the Northern Territory in general. This creates substantial additional challenges for businesses which have been further magnified by the Covid-19 pandemic and the lack of working holiday workers from international and national locations which normally form a substantial part of the workforce. The Tribunal is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience, performing equivalent work in the same workplace.
Accordingly, the requirements of r.5.19(3)(e) are met.
Training commitments and obligations: r.5.19(3)(f)
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.
A person who is an SBS of at least one primary sponsored person must comply with requirements relating to training of Australian workers, in each year the person engages a Subclass 457 visa holder.[1]
[1] r.2.87B as inserted by SLI 2013 No.146. In addition to sanctions being able to be imposed for breach of this sponsorship
The requirements relating to training are specified by the Minister in an instrument in writing,[2] and are the same requirements as the benchmarks for the training of Australian citizens and Australian permanent residents specified for the criteria for approval as a Standard Business Sponsor under r.2.87B.
[2] r.2.87B(2) and (3). The current instrument is in the Register of Instruments – Business Visas, under the ‘Training’ tab.
For an established business as is the case here, expenditure that can count towards this benchmark 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 identified increase in the skills at each stage, and demonstrating:
o the learning outcomes of the employee at each stage;
o how the progress of the employee will be monitored and assessed;
o how the program will provide additional and enhanced skills;
o the use of qualified trainers to develop the program and set assessments; and
o the number of people participating and their skill/occupation.
The Tribunal notes that the delegate did not refuse the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because they were not satisfied that the nominator had adequately demonstrated their compliance with the stipulated training requirements.
The Tribunal acknowledges that the most recent SBS approval period is from 18 June 2020 until 18 June 2025. In this case there are no longer any requirements in relation to training obligations as the criteria in r.2.59(d) and (e) ceased from 18 March 2018.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
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 r.1.13A and 1.13B.
The Tribunal notes that the delegate refused the nomination on the basis of a 1-year Bar upon further SBS applications which had expired on 13 July 2017. The 1-year Bar came about as a consequence of a Monitoring process on B&T Investments (NT) Pty Ltd by the Department. It concluded on 13 July 2016 that the sponsor had failed to meet its sponsorship obligations,
namely:
Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity.
The Tribunal notes that the offences were relatively minor, and the nominator cooperated with the Department at the time of the investigation, which presumably explains why the bar was only imposed for 1 year. The Tribunal notes that this does not abrogate the nominator’s responsibility. The Tribunal acknowledges that the nominator has recently been granted a new SBS for 5 years post this 1-year bar. The current SBS period is 18 June 2020 until 18 June 2025.
As the SBS Bar was lifted in 2017 and this decision is being made in 2021 the Tribunal has determined that it is reasonable to now disregard any adverse information known to Immigration about the nominator or a person associated with the nominator as per r.5.19(3)(g)(ii).
Accordingly, the requirements of r.5.19(3)(g) are met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires that the applicant 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia.
Accordingly, the requirements of r.5.19(3)(h) are met.
Conclusion
Based on the findings above, the Tribunal is satisfied that the applicant meets all the requirements of r.5.19(3) and therefore, r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton
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.

obligation, applicants for variation of sponsorship approval under r.2.68 are required to have complied with this obligation
during the period of the applicant’s most recent approval as a standard business sponsor in order to have their application for
variation of the terms of their sponsorship approved. See r.2.68(k)(i)(B) as inserted by SLI 2013 No.146 for applications for the
variation of the terms of approval as a sponsor made, but not finally determined, before 1 July 2013 or made on or after 1 July

2013.

[2021] AATA 3158

18 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Appeal