Bianco Family Trust (Migration)

Bianco Family Trust (Migration) [2021] AATA 598 (2 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Bianco Family Trust
CASE NUMBER:  1812919
HOME AFFAIRS REFERENCE(S):          BCC2017/1627955
MEMBER:Antonio Dronjic
DATE:2 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 02 March 2021 at 2:39pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – training requirements – reasonable to disregard failure to meet requirements – aggregate expenditure – combination of training benchmarks and other expenditure and activities – royalty fee to head office, which provides occasional training – complimentary training by business suppliers incorporated into regular payments – capacity to provide full-time employment for two years – business reopened after COVID-19 closures – current weekly turnover – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 359
Migration Regulations 1994 (Cth), r 5.19
CASES
Alimi v Minister for Immigration & Anor [2007] FMCA 1520
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429
Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767
Moller v Minister for Immigration and Citizenship [2007] FMCA 168
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492
Vishnumolakala v Minister for Immigration [2006] FMCA 1209

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 20 April 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 7 May 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 nominator is the Trustee for Bianco Family Trust. The nominator operates Lazy Moe’s restaurant in Oakleigh, Victoria. The nominee is Mr Dabal Bahadur Khadka and the nominated occupation is ‘cook’.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations, because the delegate was not satisfied, on the evidence presented to the Department, that 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. The delegate considered if it was reasonable to disregard these requirements and decided not to do so.
On 4 May 2018, the applicant applied to the Tribunal for a review of the delegate’s decision and with the review application submitted a copy of the primary decision record.
On 9 November 2020, 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) of the Regulations.
On 5 December 2020, the applicant responded to the Tribunal invitation. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
On 8, 9 and 11 December 2020, the applicant submitted additional documents. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
On 12 January 2021, the applicant’s representative submitted a copy of the nominee’s CV.
On 14 January 2021, the Tribunal wrote to the applicant advising that it had considered the 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 16 February 2021. With its hearing invitation letter, the Tribunal requested the applicant provide additional documentary evidence.
On 16 February 2021, the applicant submitted additional documents. The list of documents submitted to the Tribunal is attached to this decision record as Attachment C.
Mr Bianco appeared on behalf of the nominator before the Tribunal on 16 February 2021 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
At the commencement of the hearing, the Tribunal informed the applicant that the Department file contains a non-disclosure certificate issued under s.376 of the Act. The Tribunal further informed the applicant of its view that the s.376 certificate is not a valid certificate as it does not sufficiently specify how disclosure could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding. The Tribunal considers that the certificate contains mere descriptions rather than public interest immunity reasons. In addition, the Tribunal explained to the applicant that information purportedly covered by the certificate is not relevant to the current review.
In his evidence, Mr Bianco stated that he is the sole director and shareholder of Bianco Restaurants Pty Ltd acting as a trustee for Bianco Family Trust. The nominator operates Lazy Moe’s restaurant in Oakleigh, Victoria. The restaurant is open seven days per week (during summer) and has 88 indoor and 50 outdoor customers seating capacity. It employs one full time cook (the nominee – head chef) and two part‑time cooks. Both Mr Bianco and his wife Anna are employed at the restaurant on a full-time basis. Both Mr and Ms Bianco draw annual salary from the nominating business (approximately $44,200 each). In addition to wages, they are beneficiaries under the Bianco Family Trust.
Mr Khadka was granted a Subclass 457 visa on 26 July 2013 for a period of four years. At the time he was sponsored and nominated by another Lazy Moe’s restaurant located in Forest Hill, Victoria. The nominee commenced full-time employment at the nominating business in March 2015 following the successful sponsorship and nomination approval. He remains employed as a full-time head chef at the nominating business to the present time. His annual salary is $54,500 not including superannuation contributions. He is the only employee that was sponsored and nominated for a Subclass 457 visa by the restaurant.
Because of the COVID-19 pandemic, the restaurant was closed from April to November 2020. Only Mr and Ms Bianco were entitled to job keeper payments. The nominating business received two cash boost payments from the Government. The nominee re-commenced his full-time employment in early November 2020.
The Tribunal expressed its concerns as to whether the business will be able to provide a minimum of two years of full-time employment to the nominee and pay him the agreed salary of $54,500. Mr Bianco stated in his evidence that, since November 2020, the business weekly turnover increased to almost $35,000 and that the business is currently doing better than before the pandemic. He is hopeful that the current five day lockdown will end on 18 February 2021.
The Tribunal explained the requirements of r.5.19(3)(f) – training commitments and obligations – and noted that the most recent SBS approval was from 2 February 2015 to 2 February 2018. The Tribunal further explained that the nominating business is only required to meet the training benchmark for the SBS years in which they employed an active Subclass 457 visa holder. Accordingly, the nominator is required to meet the training benchmark from 2 February 2015 to 26 July 2017 when Mr Khadka’s Subclass 457 visa ceased.
Mr Bianco confirmed that the business intends to rely on meeting the training benchmark ‘B’ and expenditure by the business to the equivalent of at least 1% of the payroll of the business. The Tribunal further explained that training expenditure must be recorded in the profit and loss statement for the financial year in which the expenditure was made.
The Tribunal acknowledged that the applicant has provided some documentary evidence of training expenditure both to the Department and the Tribunal. The Tribunal further acknowledged receiving the representative’s submissions related to this requirement.
The Tribunal explained to Mr Bianco as to why the evidence of training expenditure provided is inadequate and noted that the Tribunal may disregard the requirement of r.5.19(3)(f)(i) if it is reasonable to do so.
The Tribunal requested the applicant to provide submissions and supporting documentary evidence related to r.5.19(3)(f)(ii) and granted the applicant until 26 February 2021 to do so.
On 25 February 2021, the applicant submitted additional documents and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment D.
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.
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) of the Act. The application must also identify a relevant person and occupation.
From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.
Therefore, it finds that 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. 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 indicate that the applicant was last approved as a standard business sponsor between 2 February 2015 and 2 February 2018. The Tribunal is satisfied that the Trustee for Bianco Family Trust was the standard business sponsor who last identified the nominee and nominated him for a Subclass 457 visa. The Tribunal is further satisfied that the nominator did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.
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 2019/20 financial years and the evidence of its current ABN and ASIC registrations that the applicant is actively and lawfully operating a business in Australia.
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)
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.
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.
The Tribunal is satisfied on the evidence before it that:
·the nomination was made on 7 May 2017;
·the relevant three-year period is therefore 7 May 2014 to 7 May 2017;
·the nominee was granted a Subclass 457 visa on 26 July 2013, which was valid until 26 July 2017;
·the nominee commenced his employment at the nominating business on 1 March 2015 and continues to work there as a full-time cook until present time; and
·he had therefore worked for the applicant in the nominated position as the holder of a Subclass 457 visa for more than two years in the three-year period immediately prior to the nomination application being lodged.
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)
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.
The applicant provided the Tribunal with a copy of an employment agreement between the applicant and the nominee dated 7 May 2017, which states, among other things, that the employment was offered for a period of no less than two years. The annual salary was set to be $54,500 excluding the superannuation.
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 further (with, notably, the nominee’s employment still now continuing with the applicant over four years after the nomination application).
The Tribunal notes that due to COVID-19 restrictions imposed by the Government, the restaurant limited its operations from March 2020. The restaurant was closed until early November 2020. Despite the restrictions imposed, the total sales in 2019/20 financial year exceeded $698,650. The evidence before the Tribunal is that from November 2020, the restaurant’s weekly turnover is $35,000.
Mr Bianco and his wife are still receiving a jobkeeper wages subsidy. The business also received two cashflow boosts from the Government in the total amount of $20,000. Mr Bianco gave evidence that the business turnover is steadily increasing. It is reasonable to expect that the business turnover will further increase once the COVID‑19 restrictions are lifted.
With its submissions of 26 February 2021, the applicant submitted evidence of employing two more employees, which is another indication that the business is financially capable of paying wages to its employees.
Based on the documentary evidence provided on behalf of the applicant, including the contract of employment, the nominee’s PAYG summary statements to date, and the applicant’s financial information, the Tribunal is satisfied that the nominee will be employed on a full-time basis for at least two years, and that the terms and conditions of his employment do not expressly exclude the possibility of extending his period of employment.
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)
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 is satisfied that there is no 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.
The nominee’s contract of employment provides that the nominee’s salary is $54,500 per year plus superannuation. With its application to the Department, the applicant submitted evidence of market salary rates for a cook gathered from Job Outlook, Seek and PayScale database. According to the applicant’s market salary research, the average salary for a cook ranges between $47,000 to $58,000.
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.
The Tribunal is further satisfied that the contract of employment 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).
Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is 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.
The training requirements applicable for an established business with SBS approval in that period were set out in the relevant instrument 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.
From the material provided by the applicant, the Tribunal accepts that the applicant seeks to meet a combination of training benchmarks ‘A’ and ‘B’.
Based on the evidence before it, the Tribunal is satisfied that the nominee was granted a Subclass 457 visa on 26 July 2013, which was valid until 26 July 2017. The Tribunal further finds that the most recent sponsorship approval for the nominator was between 2 February 2015 and 2 February 2018.
According to the Department’s Procedures Advice Manual (PAM3) relevant to Division 3A of Part 2 of the Act (dealing with sponsorship obligations), an SBS holder is only required to meet the training benchmark for the SBS years in which they employed an active Subclass 457 visa holder. Regulation 2.87B requires standard business sponsors (and former standard business sponsors) to contribute to the training of Australian workers in each year they engage a Subclass 457 visa holder.
According to an explanatory statement relevant to the legislative instrument IMMI 13/030, an SBS holder is only required to meet the training benchmark for the SBS years in which they employed an active Subclass 457 visa holder.

Accordingly, the Tribunal finds that the nominator was required to meet the training benchmark from 2 February 2015 to 26 July 2017.
As evidence of training expenditure, the applicant provided:
·A copy receipt issued on 17 December 2014 by the Sydney Institute TAFE evidencing donation of $3,100.00 for Training Benchmark A;
·A copy receipt issued on 8 December 2015 by Ajay Khatter as evidence of training expenditure of $1,800;
·A copy letter from Russel's Poultry and Meats Pty Ltd dated 1 May 2017 as evidence of ‘complimentary training’ provided to the nominating business to the value of $4,500;
·A copy letter from Oroso Poultry dated 10 November 2020 as evidence of ‘complimentary training’ provided to the nominating business;
·A copy tax invoice dated 25 February 2021 issued by Complete Hospitality Training for $1,497 as evidence of the nominator’s recent and continuing training expenditure.
In his submissions of 25 February 2021, the applicant’s representative conceded that the nominator is unable to meet r.5.19(3)(f)(i) and submitted that it is reasonable to disregard this requitement for the following reasons:
·The nominator made a monetary contribution of $3,100 to the TAFE NSW Hospitality Scholarship Fund on 17 December 2014. Although this payment was made prior to SBS approval, it was made in connection with the SBS application and indicates the nominator’s commitment to ensuring local Australians are trained in the hospitality sector;
·From February 2015 to January 2016, the business arranged for onsite management training for its employees from Ajay Khatter’s Training. The trainer provided training in customer service, workplace health and safety and teamwork;
·The business recently signed up for a formal training program with an external training provider, Complete Hospitality Training;
·The business runs under the umbrella of Lazy Moe’s Restaurants and it pays the head office a monthly royalty fee of $250. As a part of the agreement the business also receives occasional training of staff. The head office employs a dedicated officer who ensures that all the staff in the various locations are trained properly in all aspects of OH&S in the workplace; and
·Complimentary Training is provided by the business suppliers. The suppliers, Russel’s Poultry, Oroso Poultry, Bobbi Beans, Treasury Wine Estates, have all provided written statements confirming the training provided to the nominator’s employees. The cost of training was incorporated in the regular payments made to the suppliers.
It was submitted that the business owner is fully committed to training his staff to ensure high standards of performance. The nominator indicated its willingness to continue to provide training to its employees in the future, even though the SBS approval ceased in February 2018.
Regulation 5.19(3)(f)(i) provides that the nominator must have met the training requirements for the purpose of approval as a standard business sponsor under the 457 program. The nominating business must demonstrate that they have continued to meet the training requirement throughout the validity of their sponsorship.
Based on the evidence before it, the Tribunal finds that the nominating business has failed to meet the training requirements during the period from 2 February 2015 to 26 July 2017. Accordingly, the Tribunal finds that the applicant does not meet the requirements of r.5.19(3)(f)(i).
The Tribunal considered whether it is reasonable to disregard r.5.19(3)(f)(i) as allowed by r.5.19(3)(f)(ii).
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision-makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]
[1] See Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429; Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Vishnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55].
According to the Department’s policy guidelines, if a nominator cannot demonstrate that they maintained the relevant level of training expenditure throughout the validity of their standard business sponsorship, they cannot satisfy the requirements of the Temporary Residence Transition stream.
The PAM3 provides the following examples where the Department may form the view that it is reasonable to disregard r.5.19(3)(f)(i):
A)If the nominator has demonstrated meeting a combination of both training benchmark A and B in each year during the term of the most recently approved sponsorship; or
B)If the nominator has an aggregate expenditure on training over the term of their most recently approved sponsorship commensurate with the total training commitment for that period.
The Tribunal considered the applicant’s submissions, documentary evidence provided in support of the application and the Department’s policy guidelines. Based on the evidence before it, the Tribunal is satisfied that it is reasonable to disregard the requirement of r.5.19(3)(f)(i) as the nominator made an aggregate expenditure on training over the term of their most recently approved sponsorship commensurate with the total training commitment for that period.
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 of the Regulations.
There is nothing before the Tribunal to show any adverse information known to the Department about the relevant business or anyone associated with it.
Accordingly, on the evidence before it, the Tribunal is satisfied that 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.
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. Accordingly, the requirement in r.5.19(3)(h) is met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Antonio Dronjic
Member

Attachment A – Document List
·ASIC Company Statement for ‘Bianco Restaurants Pty. Ltd.’ (including cover letter). (2/12/2020)
·Bianco Restaurants Pty Ltd payroll totals: July 2014 – June 2015
·Bianco Restaurants Pty Ltd profit and loss: July 2016 – June 2017
·Activity statements for ‘The Trustee for Bianco Family Trust’ for the periods:
oJanuary 2018 – March 2018
oApril 2018 – June 2018
oJuly 2018 – September 2018
oOctober 2018 – December 2018
·Bianco Restaurants Pty Ltd payroll totals: July 2015 – June 2016
·Employment contract between Dabal Bahadur Khadka and The Trustee for Bianco Family Trust (7/5/2017 – unsigned)
·Activity statements for ‘The Trustee for Bianco Family Trust’ for the periods:
oJanuary 2019 – March 2019
oJanuary 2019 – March 2019
oApril 2019 – June 2019
oJuly 2019 – September 2019
oOctober 2019 – December 2019
·ABN Lookup for ‘The Trustee for Bianco Family Trust’
·Activity statements for ‘The Trustee for Bianco Family Trust’ for the periods:
oOctober 2017 – December 2017
·Bianco Family Trust financial statements for the year ended 30 June 2016
·Activity statements for ‘The Trustee for Bianco Family Trust’ for the periods:
o01 July 2014 – 30 September 2014
o01 October 2014 – 31 December 2014
o01 January 2015 – 31 March 2015
o01 April 2015 – 30 June 2015
·Notice of assessment for Dabal Bahadur Khadka for the year ended 30 June 2020
·Activity statements for ‘The Trustee for Bianco Family Trust’ for the periods:
o01 July 2015 – 30 September 2015
o01 October 2015 – 31 December 2015
o01 January 2016 – 31 March 2016
o01 April 2016 – 30 June 2016
·Activity statements for ‘The Trustee for Bianco Family Trust’ for the periods:
oJanuary 2020 – March 2020
oApril 2020 – June 2020
oJuly 2020 – September 2020
·Bianco Restaurants Pty Ltd As Trustee for the Bianco Family Trust financial statements for the year ended 30 June 2015
·Activity statement/transactions for the period 24 April 2017 – 24 April 2019
·PAYG payment summary for Dabal B Khadka for the period of payment:
o01/07/2016 – 30/06/2017
o01/07/2017 – 30/06/2018
o01/07/2018 – 30/06/2019
o01/07/2019 – 30/06/2020
o01/07/2015 – 30/06/2016
o23/03/2015 – 30/06/2015
·Activity statements for ‘The Trustee for Bianco Family Trust’ for the periods:
o01 July 2016 – 30 September 2016
o01 October 2016 – 31 December 2016
·Bianco Restaurants Pty Ltd profit and loss: July 2019 – June 2020
·Renewal of lease of real estate (landlord: Juan Du, tenant: Bianco Restaurants Pty. Ltd., guarantor: Frankie Bianco) (30/10/2019)
·Activity statements for ‘The Trustee for Bianco Family Trust’ for the period October 2018 – December 2018
·Activity statements for ‘The Trustee for Bianco Family Trust’ for the period January 2019 – March 2019
·Deed establishing the Bianco Family Trust (settlor: Andrew Theodosis, trustee: Bianco Restaurants Pty Ltd) (07/10/2004)
Attachment B – Document List
1.On 8 December 2020, the applicant provided the following documents:
·Lazy Moe’s Oakleigh – Organisational Chart
2.On 9 December 2020, the applicant provided the following documents:
·Payment receipt (receipt number: 1081215) from Ajay Khatter Training to The Trustee for Bianco Family Trust (T/A Lazy Moe’s Oakleigh) (08/12/2015)
·Letter from John Polidoros (Oroso Poultry) (20/11/2020)
·Letter from Daniel Ficco (Owner, Bobbi Beans)
·Letter from Russel Kotlyarsky (Director, Russel’s Poultry and Meats Pty Ltd) to Lazy Moe’s Oakleigh (01/05/2017)
·Bianco Restaurants Pty Ltd Supplier FastReport: 1 December 2014 – 6 December 2020
·Oroso Pty Ltd: customer ledger, Lazy Moe’s Oakleigh, for 01/02/2014 – 04/12/2020
·Bianco Restaurants Pty Ltd Supplier FastReport: 1 December 2014 – 6 December 2020
·Tax invoice (invoice number: 1021215) to The Trustee for Bianco Family Trust (02/12/2015)
3.On 11 December 2020, the applicant provided the following documents:
·Tax invoice from Bobbi Beans Coffee House (invoice number: INV – 00006) to Lazy Moe’s (31/01/2015)
Attachment C – Document List
1.On 16 February 2021 the applicant provided the following documents:
·Employment contract between The Trustee for Bianco Family Trust and Dabal Bahadur Khadka (07/05/2017)
·Bianco Restaurants Pty Ltd profit and loss: July 2019 – June 2020
·Activity statements for ‘The Trustee for Bianco Family Trust’ for the periods:
oJanuary 2019 – March 2019
oJanuary 2019 – March 2019
oApril 2019 – June 2019
oJuly 2019 – September 2019
oOctober 2019 – December 2019
·Activity statements for ‘The Trustee for Bianco Family Trust’ for the periods:
oJanuary 2020 – March 2020
oApril 2020 – June 2020
oJuly 2020 – September 2020
·Agent’s written submissions regarding training benchmark requirements (13/02/2021)
·Market rate submission from (Suraj Khatri, Zen Migration & Education)
·Lazy Moe’s Oakleigh – organisational chart 2019-2020
·Notice of assessment for Dabal Bahadur Khadka for the year ended 30 June 2020
·PAYG payment summary for Dabal B Khadka for the period 01/07/2019 – 30/06/2020
·Notice of assessment for Dabal Bahadur Khadka for the year ended 30 June 2017
·Notice of assessment for Dabal Bahadur Khadka for the year ended 30 June 2018
·Notice of assessment for Dabal Bahadur Khadka for the year ended 30 June 2019
·Notice of assessment for Dabal Bahadur Khadka for the year ended 30 June 2016
·Bianco Restaurants Pty Ltd As Trustee for the Bianco Family Trust financial statements for the year ended 30 June 2015
Attachment D – Document List
1.On 25 February 2021 the applicant provided the following documents:
·Tax invoice (invoice number: INV-7168) from Complete Hospitality Training to The Trustee of Bianco Family Trust (Lazy Moe’s Oakleigh) (25/02/2021), including screenshot of transaction (reference number K2062938516) (25/02/2021)
·Letter from Suraj Khatri to the Tribunal (25/02/2021)
·Tax file number declarations of:
o   Georgina Grace Carra, and
o   Liam Wigney
·Letter from Michael Guida (Owner, Lazy Moe’s) (24/02/2021)
·Letter from Frank Bianco (Lazy Moe’s Oakleigh) to the Tribunal (23/02/2021)
Bianco Restaurants Pty Ltd profit and loss: July 2017 – June 2018
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.

[2021] AATA 598

2 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal