Bajaria Global Pty Ltd ATF D Bajaria Family Trust 2 And The Trustee For K Bajari (Migration)

Bajaria Global Pty Ltd ATF D Bajaria Family Trust 2 And The Trustee For K Bajari (Migration) [2020] AATA 5640 (13 November 2020)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Bajaria Global Pty Ltd ATF D Bajaria Family Trust 2 And The Trustee For K Bajari
CASE NUMBER:  1808969
DIBP REFERENCE(S):  BCC2017/1453774
MEMBER:Marten Kennedy
DATE OF DECISION:  13 November 2020
DATE CORRIGENDUM
SIGNED:29 January 2021
PLACE OF DECISION:  Adelaide
AMENDMENT:  The following corrections are made to the decision:

1.I amend paragraph 43 of the reasons for decision by deleting the paragraph in its entirety and substituting the following text instead:
[43]. For the above reasons the Tribunal is satisfied that the applicant meets the requirements of r.5.19(3) of the Act and the nomination is approved.

Marten Kennedy
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bajaria Global Pty Ltd ATF D Bajaria Family Trust 2 and ATF K Bajari Family Trust
CASE NUMBER:  1808969
HOME AFFAIRS REFERENCE(S):          BCC2017/1453774
MEMBER:Marten Kennedy
DATE:13 November 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 13 November 2020 at 12:08pm
CATCHWORDS
MIGRATION – nomination of a position – Temporary Residence Transition nomination stream – occupation of Customer Service Manager – employed full time in the position for two years – financial capacity to employ the nominee – updated financial reports – terms and conditions of the position – training requirements – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245, 359
Migration Regulations 1994, r 5.19
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 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).
The applicant applied for approval on 21 April 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
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) of the Regulations because the delegate was not satisfied that the nominee would be employed full time in the position for at least two years. The delegate was concerned as to the applicant’s financial capacity to employ the visa nominee in light of a net trading loss demonstrated in the applicant’s financial statements in the 2014/15 financial year, and the absence of any supporting certification or explanation from the applicant’s accountant.
Using the procedure provided for in section 359(2) of the Act, the Tribunal invited the applicant to provide further documentary evidence addressing all aspects of r.5.19(3). Upon examination of those records, the I decided that a hearing was unnecessary, all criteria for the approval of the nomination were demonstrably satisfied and the nomination was to be approved.
For the following reasons therefore, 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.
I consider first the issue on which the Department decided to refuse to approve the nomination.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). The visa nominee, Mr Patel, falls within the prescribed class of nominees because he had held a subclass 457 visa and had been employed in the position in respect of which he holds the subclass 457 visa on a full time basis for at least 2 years before the date of the nomination application. In this regard, I have examined Departmental records concerning visas granted to Mr Patel and also the records of his employment set out in his corresponding visa application form. This has also been certified by the applicant / employer in correspondence to the Department of 20 June 2016.
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.
I have noted that the contract of employment dated 24 August 2020 includes a term that employment is to be for a minimum of 2 years from a start date which will be the day after a permanent visa is granted.
As mentioned above however, the concerns of the Department turned on the applicant’s financial capacity to meet its obligations as an employer over this period. I have received updated financial reports for the financial year ending 30 June 2019, and BAS statements for the last financial year. My analysis has focussed on the complete financial statements for the financial year ending 30 June 2019.
The business is structured as a partnership of two family trusts. The applicant is the trustee company for one of the partners. The applicant trades under the name ‘The Spice Merchants’, and imports and wholesales Indian foods, frozen food and spices.
The statements show turnover of $3.7 million with a trading profit of just over $1 million in 2018/2019. Operating expenses also are just over $1 million generating a relatively nominal profit of $24,996. Wages constitute the most significant expense of the business at $312,538. In the previous financial year, the business generated a profit of $77,465 on slightly lower sales and lower wages. The balance sheet of the business reveals that it held cash of just over $50,000 on 30 June 2019. Receivables and trade liabilities each exceeded $500,000 on 30 June 2019. It can be seen therefore that the business has a high turnover and low profit. I consider this unremarkable given the nature of its activities as a food importer and wholesaler. Although I consider the delegate was justified in noting the loss shown in the financial reports then available, I consider that on balance the financial evidence now demonstrates that the business has continued to trade and is capable of absorbing losses that may be incurred from time to time in the course of its trade. What is significant is that the business has serviced its wages bill over a number of subsequent years, and the wages have included the wages of the relevant visa nominee.
I am reinforced in my assessment of the business’ financial statements by the certification now provided by the group’s accountant, Gallucio Griggs Accountants. I accept the opinion offered that the business remains a going concern capable of meeting its financial responsibilities for at least the next five years
Given the above findings, the requirement in r.5.19(3)(d) is met.
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 application was made on the approved form containing the requisite certifications, identifies the visa nominee and the same ANZSCO occupation code as the occupation carried by the 457 visa holder.
Given the above findings, the requirement in r.5.19(3)(a) is 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 who is actively and lawfully operating a business in Australia. I am satisfied the applicant was the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act.
The applicant has provided evidence confirming their prior approval as a standard business sponsor for the visa nominee’s subclass 457 visa. Based on the financial statements, ASIC records and other miscellaneous evidence corroborating the operation of the business, I am also satisfied that the applicant is actively and lawfully operating a business in Australia.
Given the above, the requirement in r.5.19(3)(b) is 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 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.
I am satisfied that the nominee has been employed full time by the applicant continuously in the occupation of Customer Service Manager for the applicant since 8 January 2014. This is established by the applicant’s certification in a letter dated 20 June 2016 and corroborated by payroll records including PAYG Group certificates.
Given the above findings, the requirement in r.5.19(3)(c) is met.
No less favourable terms and conditions 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.
I have examined the contract of employment and find it unremarkable as to the terms and conditions.
As to the base salary offered as a term of the employment contract, I have accessed online date concerning average salary for customer service managers at I have noted the base salary falls within the lower median range of salaries according to this source. I am satisfied therefore that this important term of employment does not raise any substantial concerns regarding the terms and conditions of employment being no less favourable than would be offered to an Australian citizen or permanent resident performing equivalent work at the same location.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f)(i) requires the nominator to have, during the period of the nominator’s most recent approval as a standard business sponsor:
(A)fulfilled any commitments made relating to meeting the nominator’s training requirements; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements.
Where the nominator does not meet these requirements, it may nonetheless meet reg 5.19(3)(f) if it is reasonable in the circumstances to disregard the requirements (reg 5.19(3)(f)(ii)).
Departmental policy indicates that the commitments for the purpose of sub-para (A) refer to the commitments made at the time of the application for a standard business sponsorship (SBS) approval. I have no evidence of any specific commitments made by the applicant concerning training requirements in order to secure approval of its application for standard business sponsorship.
In relation to sub-para (B), the applicable training obligation refers to reg 2.87B, which requires an approved standard business sponsor to meet training benchmarks specified in legislative instrument for the relevant period prescribed in that provision. The applicant’s period of approval as a standard business sponsor was from 26 July 2013 to 26 July 2016. The applicable legislative instrument is IMMI 13/030, and essentially required the applicant to demonstrate recent expenditure of 1% of payroll on training. During the period of approval as a standard business sponsor, based on tables and receipts provided by the applicant, the applicant did not meet the required training benchmark B of spending 1% of payroll on training. More specifically, the applicant’s evidence demonstrates that between 26 July 2013 and 26 July 2016, the applicant spent $6742 on training, while the payroll for the same period was $729,421 (1% is $7294).
However, I note that shortly after the expiration of the period of approval as a standard business sponsor, the applicant has demonstrated that a further $4204 was spent on training certified to meet the requirements of Training Benchmark B by the training provider. The applicant would have exceeded the requirements of r.5.19(3)(f) had the period of standard business sponsorship approval continued to May 2017.
In light of the evidence of this expenditure, I consider it would be unreasonable to refuse to approve the nomination on the basis that the applicant fell short of the required training benchmark within the period of the standard business sponsorship approval, when shortly thereafter the amount of expenditure exceeded what was required.
I consider it reasonable to disregard the strict requirements of r.5.19(3)(f)(i)(B) in light of the applicant’s substantial compliance to spend at least 1% of payroll on training during the period of sponsorship approval. 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 rr.1.13A and 1.13B.
I have no evidence of adverse information known to Immigration about the nominator or a person associated with the nominator.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
I have no evidence before me raising any issues concerning the nominator’s compliance with the laws of the Commonwealth, or Western Australia.
Accordingly, the requirement in r.5.19(3)(h) is met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Marten Kennedy
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.

[2020] AATA 5640

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