Ca De Vin Pty Ltd (Migration)

Ca De Vin Pty Ltd (Migration) [2020] AATA 534 (26 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ca De Vin Pty Ltd
CASE NUMBER:  1815130
DIBP REFERENCE(S):  BCC2017/2105719
MEMBER:Amanda Ducrou
DATE:26 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 February 2020 at 12:43pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Chef – training commitments and obligations – Training Benchmark B – employment of a full-time training officer – Responsible Service of Alcohol certification for employees – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), rr 2.87B, 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 Immigration on 17 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).
The applicant applied for approval on 14 June 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
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)(f)(i)(A) of the Regulations because the evidence did not establish that the applicant met either Training Benchmark A or Training Benchmark B during the period of the nominator’s most recent approval as a standard business sponsor. Further, the delegate found that it was not reasonable to disregard the applicant’s failure to meet those requirements under r.5.19(3)(f)(ii).
On 12 August 2019 the Tribunal wrote to the applicant in accordance with s.359(2) of the Migration Act 1958 (the Act) inviting the applicant to provide information to the Tribunal. The letter invited the applicant to provide information that demonstrated that all of the relevant criteria in r.5.19 of the Regulations were met currently including, but not limited to, the criteria that the delegate had found were not established. Extracts of relevant parts of r.5.19 accompanied the letter. The letter asked the applicant to provide the information by 26 August 2019 and noted that the applicant could request an extension of time but any such request must be received before 26 August 2019. The letter explained that if the requested information was not received within the period allowed or as extended (if an extension were requested and granted), then the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant responded to the Tribunal’s request for information on 26 August 2019 and provided written submissions and documents in support of the application. The applicant provided further submissions and documents on 28 August 2019.
The Tribunal did not consider that it was necessary to conduct a hearing as it was able to find in favour of the applicant on the basis of the material before it.
The applicant’s registered migration agent, Mr Joseph Italiano, represented the applicant in relation to the review.
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). The application must also identify a relevant person and occupation.
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 fee prescribed in r.5.37. The relevant s.245AR(1) certification was also provided in the application form.
The application for approval identifies Mr Rajeev Sharma as the nominee. According to the Department’s records, Mr Sharma held a Subclass 457 visa granted on 2 June 2015 on the basis of satisfying cl.457.223(4) at the time the application was made.
The application for approval identifies the occupation of Chef (ANZSCO 351311). The Tribunal is satisfied, based on the employment documents for the nominee, that the occupation identified in the application for approval is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is satisfied that this occupation carries the same 4-digit code (3513) as the occupation carried out by the nominee while he held the Subclass 457 visa.
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. 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 that the nominator was the standard business sponsor who last identified Mr Rajeev Sharma 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).
The documents before the Tribunal included: an ASIC current and historical company extract for the applicant; certificate of registration of the applicant as a company issued by ASIC; the applicant’s financial statements for the financial years from 2016 to 2018 (the financial statements included 2015 financial year information); the applicant’s company tax returns for the 2017 and 2018 financial years; activity statements lodged by the applicant with the Australian Taxation Office (ATO) for the 2018 to 2019 financial years; ATO Business Portal integrated client account records for the 2019 financial year; the applicant’s sales report by category for the 2019 financial year; a chart provided by the applicant detailing its organisational structure; and other information about the applicant’s business activities. The documentary evidence was consistent with the applicant actively and lawfully operating a business in Australia.
The Tribunal is satisfied, based on the material before it, that the nominator is actively and lawfully operating a restaurant called Ca de Vin at shop g29, 350 Bourke Street, Melbourne, Victoria, 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 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.
In this case, the relevant provision is r.5.19(3)(c)(i). This nomination application was made on 14 June 2017. The nominee was granted the Subclass 457 visa to work in the nominated occupation of Chef on 2 June 2015. The position identified in the nomination application was Chef de Partie. The Tribunal notes that the position of Chef de Partie is one of the specialisations included in the occupation of Chef (ANZSCO 351311).
The Tribunal was provided with: the nominee’s PAYG payment summaries for the 2014 to 2019 financial years; taxation notices of assessment issued by the ATO to the nominee for the 2016 and 2017 financial years; employment agreement dated 15 May 2017 made between the applicant and the nominee; payslips issued by the applicant to the nominee for the pay periods commencing on 3 April 2017 and ending on 18 June 2017; and a letter from the applicant dated 15 August 2019 regarding the period of the nominee’s employment and his duties. The applicant provided the Tribunal with a computer printout of the Leave Transaction records maintained by the applicant for the nominee from 1 July 2015 to 17 August 2019 detailing the annual leave taken by the nominee during that period. The documentation before the Tribunal was consistent with the nominee having been employed on a full-time basis by the applicant as a Chef from when the applicant’s Subclass 457 visa was granted. The Tribunal is satisfied based on the documents that the nominee’s employment with the nominator in that position has been continuing and is current.
Based on the material before it, the Tribunal is satisfied that the nominee has been employed by the nominator in the position of Chef on a full-time basis in Australia for at least two years in the three years immediately before the nomination application was made.
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)
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 nominee is a person to whom r.5.19(3)(c)(i) applies. The most recent employment agreement dated 16 August 2019 made between the applicant and the nominee was before the Tribunal. The employment agreement provides for the nominee’s employment on a full-time basis for three years. The agreement does not expressly exclude the possibility of extending the period of the nominee’s employment. The employment agreement stipulates that the nominee’s salary is $59,554.04 per annum. The nominee’s salary is inclusive of superannuation at 9.5%, which is the current legislated rate.
The Tribunal considered the evidence relating to the applicant’s financial capacity to employ the nominee for at least two years. The Tribunal had regard to the financial statements, tax returns and activity statements for the applicant. The financial statements for the 2017 financial year showed sales of $3,328,556 and a gross profit from trading of $2,372,127. The financial statements for the 2018 financial year showed sales of $3,003,458 and a gross profit from trading of $2,238,429. The expense for wages for employees was $1,228,386 for the 2017 financial year and $1,096,341 for the 2018 financial year.
In the 2017 financial year, the net operating profit before income tax was $299,948. In the 2018 financial year, the net operating profit before income tax was $348,689. The financial statements showed retained profits after payment of income tax and paid or proposed dividends for the 2017 and 2018 financial years. (The retained profit for the 2017 financial year was $721,457 and the retained profit for the 2018 financial year was $669,494.) The Tribunal’s analysis of the financial statements did not identify anything that was remarkable.
The Tribunal noted there may be differences in figures reported in activity statements and financial statements due to different reporting requirements and conventions. Having regard to the applicant’s activity statements for the 2019 financial year, the Tribunal considered that total sales and total salary wages and other payments for the 2019 financial year were commensurate with the amounts for the previous financial years.
The Tribunal is satisfied, based on the material before it, that the applicant has the financial capacity to employ the nominee as a full-time Chef and that the applicant has the financial capacity to maintain the nominee’s employment for at least the next two years.
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)
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 terms and conditions of the employment agreement dated 16 August 2019 include terms relating to the nominee’s working hours, his annual salary and superannuation. The employment agreement provides that the nominee is entitled to 20 days of annual leave, and personal leave of 10 days per year.
The documents were consistent with the nominee’s current salary being $59,554.04 per annum, inclusive of superannuation at the applicable statutory rate of 9.5%. Based on the documents, the Tribunal was satisfied that the nominee currently receives a base weekly salary of $1,046 per week plus superannuation of $99.37 per week.
The application form stated that there is an Australian employee or employees in the nominee’s workplace doing the same work as the nominated person. The organisation chart provided by the applicant confirmed that one of the applicant’s employees is an Australian permanent resident and performs equivalent work in the same workplace in the same location as the nominee. The application form stated that an award, being the Hospitality Award, applies to the Australian employee.
The Tribunal noted that payslips issued by the applicant for the nominee referred to the Restaurant Industry Award 2010 and not to the Hospitality Industry (General) Award 2010. It was not clear which of those awards applied to the nominated position. However, both awards stipulate the same minimum weekly wage for a Cook grade 5 (the classification that applies to an employee who is a Chef de Partie with the duties performed by the nominee). That minimum weekly wage is $941.10 per week. The nominee’s rate of pay is higher than, and compares favourably with, that rate.
The Tribunal is satisfied, based on the employment agreement, the other documentary evidence and the award information, 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 nominator’s business premises.
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) 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.
Based on information from the Department the Tribunal is satisfied that the applicant was most recently approved as a standard business sponsor on 10 December 2014 for a period of three years until 10 December 2017. The delegate found that the evidence did not establish that the requirements of r.5.19(3)(f)(i) were met and that the evidence did not demonstrate that it was reasonable to exercise the discretion permitted under.5.19(3)(f)(ii) to disregard r.5.19(3)(f)(i).
The applicable training benchmarks are specified in legislative instrument IMMI13/030. In accordance with IMMI13/030, the applicant may comply with the training requirements in either of two ways. In summary: Training Benchmark A requires the applicant to demonstrate recent expenditure by the business to the equivalent of at least 2% of its payroll to an industry training fund that operates in the same industry as the business; and Training Benchmark B requires the applicant to demonstrate recent expenditure by the business to the equivalent of at least 1% of its payroll in the provision of training to its employees.
Under IMMI13/030, expenditure on the 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 can count towards Training Benchmark B. IMMI13/030 states that evidence of payment of external providers to deliver training for Australian employees can also count towards Training Benchmark B. IMMI13/030 stipulates that expenditure that cannot count towards Training Benchmark B includes training that is only undertaken by persons who are not Australian citizens or permanent residents or training that is only undertaken by persons who are principals in the business or their family members.
The written submissions from the applicant’s representative dated 28 August 2019 addressed the applicant’s fulfilment of the training requirements and training obligations. The applicant submitted that it had complied with the training requirements under Training Benchmark B of IMMI13/030 by its expenditure on the employment of a full-time training officer.
The Department’s policy guidelines (as set out in the Procedures Advice Manual, or PAM3, as applicable when this application was made) state that if an applicant employs a person who is a qualified trainer and spends the majority of their time delivering training to staff, then 100% of the salary provided to that person can be counted towards Training Benchmark B. The Tribunal is mindful that while it may be guided by policy it is not bound to follow policy (see Brennan J in Re Drake No. 2 (1978-1980) 2 ALD 634). The Courts have held that the Department’s 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.
The applicant noted that the only other training expenditure it had was for Responsible Service of Alcohol certification for employees. This was reflected in the staff training expenses in the financial statements. The applicant did not provide further information in relation to that expenditure.
Documents the applicant provided included:
·Relevant extracts of employment agreement dated 1 July 2014 made between the applicant and Mrs Michelle Romano;
·Job description for the position of staff training officer with the applicant;
·Mrs Romano’s PAYG payment summaries for the 2016 and 2017 financial years;
·Letter dated 2 May 2017 from the applicant confirming the employment of Mrs Romano as staff training and development officer in 2014 and her continuing employment. The letter provided details of Mrs Romano’s salary;
·Payslips issued by the applicant to Mrs Romano for the pay periods that commenced on 27 March 2017 and ended on 16 April 2017;
·The applicant’s induction manual written and designed by Mrs Romano.
The policy guidelines state that payroll expenditure includes wages and superannuation contributions that the applicant has paid to their employees. Based on the financial statements and other documents provided by the applicant, the Tribunal accepted that the applicant had the following payroll expenditure:

Financial year

Wages paid to employees

Superannuation contributions paid to employees

Total payroll expenditure

2015

$1,066,457

$100,580

$1,167,037

2016

$1,216,393

$115,143

$1,331,536

2017

$1,228,386

$116,096

$1,344,482

2018

$1,096,341

$102,287

$1,198,628

The Tribunal noted that the obligation to provide training under r.2.87B requires the sponsor to comply with training requirements for each individual 12 month period they are a standard business sponsor of at least one primary sponsored person on a Subclass 457 visa: r.2.87B(2).
The material before the Tribunal did not set out Mrs Romano’s salary for the four financial years spanning the period of the applicant’s most recent sponsorship approval. However, based on documents before it, the Tribunal was satisfied that the applicant’s expenditure on Mrs Romano’s salary was at least: $49,000 for the 2015 financial year; $61,100 for the 2016 financial year; $67,600 for the 2017 financial year and $67,600 for the 2018 financial year. The Tribunal was satisfied, based on the material the applicant provided, that Mrs Romano is a qualified trainer and that she is employed to train the applicant’s staff as a key part of her job.
The applicant did not identify training expenditure for employees who are not Australians or Australian permanent residents. However, the evidence did not indicate that this was a significant proportion of the applicant’s training expenditure. The Tribunal calculated 1% of the payroll of the applicant’s business as: $11,670.37 for financial year 2015; $13,315.36 for financial year 2016; $13,444.82 for financial year 2017; and $11,986.28 for financial year 2018. The evidence established that the expenditure by the applicant on Mrs Romano’s salary is well in excess of 1% of the payroll of the business for each individual 12-month period during the most recent standard business sponsorship approval period. The Tribunal is satisfied, based on the evidence before it, that Training Benchmark B has been met in respect of the most recent standard business sponsorship approval period.
The material before the Tribunal was more extensive than the material that was available to the delegate. Based on the material before it, the Tribunal is satisfied that the applicant fulfilled the commitments made relating to the training requirements and complied with the applicable sponsorship obligations relating to the training requirements during its most recent period of approval as a sponsor.
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.
There is no information before the Tribunal indicating that there is adverse information known to the Department 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.
There is no information before the Tribunal indicating that the applicant does not have a satisfactory record of compliance with workplace relations laws in the location in which the applicant operates its business and employs employees in the business.
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.
Amanda Ducrou
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 534

26 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies

Financial year	Wages paid to employees	Superannuation contributions paid to employees	Total payroll expenditure
2015	$1,066,457	$100,580	$1,167,037
2016	$1,216,393	$115,143	$1,331,536
2017	$1,228,386	$116,096	$1,344,482
2018	$1,096,341	$102,287	$1,198,628