CAFE PROJECTS PTY LTD & PAVICIC GROUP PTY LTD & D ROMEO & R ROMEO (Migration)

CAFE PROJECTS PTY LTD & PAVICIC GROUP PTY LTD & D ROMEO & R ROMEO (Migration) [2020] AATA 5627 (16 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  CAFE PROJECTS PTY LTD & PAVICIC GROUP PTY LTD & D ROMEO & R ROMEO
CASE NUMBER:  1806551
HOME AFFAIRS REFERENCE(S):          BCC2016/4230538
MEMBER:Antonio Dronjic
DATE:16 November 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 16 November 2020 at 3:12pm

CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition Nomination stream – position of Supply and Distribution Manager – financial capacity to employ the nominee for at least 2 years – updated financial statements – training expenditure – updated market salary research – visa holder employed in the position more than 2 years – terms and conditions of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245, 359, 360, 363
Migration Regulations 1994, rr 2.87, 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 5 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 14 December 2016. 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 nominating business is Cafe Projects Pty Ltd & Pavicic Group Pty Ltd & D Romeo & R Romeo (thereafter referred to as the applicant or the nominator) and the nominated position is Supply and Distribution Manager (ANZSCO 133611).
The delegate refused the application on the basis the nominator did not satisfy r.5.19(3)(d)(i) because, based on the evidence before him or her, the delegate was not satisfied that the nominator had the financial capacity to employ the nominee on a full-time basis in the position for at least 2 years. The applicant applied to the Tribunal on 12 March 2018 and with the application submitted a copy of the primary decision record.
On 13 August 2019, the applicant submitted documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
On 10 August 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). On 24 August 2020, the applicant responded to the Tribunal’s invitation. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
On 18 September 2020, the Tribunal wrote to the applicant advising that it had considered 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 6 October 2020. With its hearing invitation letter, the Tribunal invited the applicant to provide the following documents:
Financial evidence:
- Profit and loss statement for the nominating business for the following financial years:
o1/7/2014 to 30/6/2015
o1/7/2015 to 30/6/2016
o1/7/2016 to 30/6/2017; and
o1/7/2019 to 30/6/2020
- Profit and loss statement(s)should state:
o Total income
o Total payroll (includes all wages and salaries and superannuation)
o Net profit
o Item ‘training expenditure’ stating how much money was spent on
training in each of the above financial years.
Evidence of training expenditure
- For each financial year starting from 1/7/2014 to 30 June 2017:
Invoice(s) rendered to the business by the training provider;
Receipt(s) for payment of corresponding training invoices;
These figures must correspond to the training expenditure recorded in the
profit and loss statement in each financial year
List of employees who attended training;
Evidence of their Australian citizenship/permanent residency status; and
Evidence of their employment at the nominating business during the
relevant period when training was provided (PAYG payment
summaries)
The nominee’s PAYG payment summaries from the day he commenced full-time employment at the nominating business to 30 June 2020;
On the applicant’s request, the hearing was rescheduled for 28 October 2020.
On 8 and 23 October 2020, the applicant submitted documentary evidence. The list of documents submitted to the Tribunal is attached to this decision record as Attachment C.
Mr Dominic Romeo appeared before the Tribunal on behalf of the nominator to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent.
In his evidence, Mr Romeo stated that the nominator is a partnership of two companies that was established in 2009. He is the sole director of Café Project Pty Ltd and his wife holds all shares of this company. Mr Romeo’s sister, Ms Rosemary Romeo is director of the other entity, Pavicic Group Pty Ltd. This partnership is trading under the business name of IFRESH Corporate Pantry which was registered in August 2017. The business supplies fresh produce, coffee, milk and snacks to offices, co-working spaces, studios and warehouses in Sydney.
Mr Romeo is general manager and, in this role, oversees day-to-day operations of the business. He does not pay himself wages. The business currently employs 9 employees. Four of them are employed on a full-time basis. Five of them work on a casual basis as drivers or as pickers and packers.
The Tribunal noted that, according to the financial statements for the 2014/15 financial year, the business only spent $72,000 for payment of salaries. Mr Romeo stated that in addition to the nominee, in the 2014/15 financial year, the nominating business employed four other casual employees. Three of those casual employees were Australian citizens.
The nominee commenced his full-time employment on 15 September 2014. He was granted a Subclass 457 visa on 15 September 2014 for a period of 3 years. He was the only person sponsored for a temporary work visa by the nominating business.
The Tribunal explained that r.5.19(3)(f) requires the applicant to have 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. Mr Romeo confirmed that the business was approved as a standard business sponsor (SBS) on 16 July 2014 for the period of three years.
The Tribunal noted that, according to the profit and loss statements provided by the applicant, the business made the following training expenditure:
$1,089 in the 2014/15 financial year;
$1,550 in the 2015/16 financial year and
$88.00 in the 2016/17 financial year.
Mr Romeo stated that in July 2016 the business employed a training manager, Ms Patel. She previously worked for the nominator on a casual basis as a picker and packer from 2015.
Initially, Mr Romeo stated that Ms Patel was employed on a full-time basis and that her only job was to provide training to the applicant’s employees. He was unable to recall how much was she paid. The Tribunal noted that the applicant did not provide an employment agreement between the nominator and Ms Patel or her job description. Further, the Tribunal noted that it has no information as to how many employees worked at the nominating business in the 2016/17 financial year or what type of training was provided to them by Ms Patel. Mr Romeo undertook to provide that information after the hearing.
Mr Romeo changed his evidence and stated that Ms Patel was employed on a casual basis in the 2016/17 financial year. He reiterated that the training expenditure in the 2016/17 financial year was $7,335 consisting of wages paid to Ms Patel. The Tribunal observed that this training expenditure does not appear in the profit and loss statement for the 2016/17 financial year.
The Tribunal noted that the applicant provided evidence of market salary rate to the Department. However, the market salary research submitted was in respect of a different occupation (cook). Mr Romeo undertook to provide updated market salary research for the nominated occupation of a Supply and Distribution Manager after the hearing.
Mr Romeo requested, and the Tribunal granted him, additional time until 11 November 2020 to provide additional documentary evidence and submissions in support of the review application.
On 11 November 2020, the applicant submitted additional documentary evidence 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). 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 16 July 2014 and 16 July 2017. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mr Munawar Mohammed, and nominated him for a Subclass 457 visa. The Tribunal is further satisfied that the company 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 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 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.
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 Supply and Distribution Manager 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 14 December 2016;
·the relevant 3-year period is therefore 14 December 2013 to 14 December 2016;
·the nominee was granted a Subclass 457 visa on 15 September 2014, which was valid until 15 September 2018;
·the nominee commenced his employment at the nominating business on 15 September 2014 and continues to work there as a full-time Supply and Distribution Manager until the 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 2 years in the 3-year period immediately prior to the nomination application being lodged.
Accordingly, given the above and the 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 2 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 24 November 2016, which states, among other things, that the employment was offered for a period of no less than 2 years from the date of a Subclass 186 visa grant. The annual salary was set to be $70,000 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 almost 4 years after the nomination application).
The Tribunal considered whether the business has a financial capacity to provide full-time employment to the nominee for a minimum of 2 years. Based on the financial documents submitted with the review application, the Tribunal finds that the nominator’s turnover in the 2019/20 financial exceeded $3.5 million. During the same financial year, the applicant’s gross profit was $1,184 million.
Based on the documentary evidence provided on behalf of the applicant, including the applicant’s most recent 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 2 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 nominee’s contract of employment for the nominated position is dated 24 November 2016 and provides that the nominee’s salary is $70,000 per year plus superannuation.
On 11 November 2020, the applicant submitted evidence of the current salary rate for Supply and Distribution Managers gathered from Live Salary and PayScale database. According to the applicant’s market salary research, the average salary for the nominated occupation ranges between $56,500 to $110,000. The average salary is stated to be $68,931.
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 dated 24 November 2016 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 training benchmark ‘B’.
Legislative instrument IMMI 13/030 provided that expenditure that can count towards Training Benchmark B 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 identifies an increase in the skills at each stage, and demonstrating:
Based on the evidence before it, the Tribunal is satisfied that the nominee was granted a Subclass 457 visa on 15 September 2014, which remained valid until 15 September 2017. The Tribunal further finds that the most recent sponsorship approval for the nominator ran between 16 July 2014 and 16 July 2017.
According to an explanatory statement relevant to 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. However, the nominator is not required to comply with training obligations in r.2.87B(2) or (3) of the Regulations in relation to a period of 12 months ending on or after 12 August 2018: cl.7602(5) of Schedule 13 to the Regulations.

As the nominee was the only Subclass 457 visa holder employed by the nominator during the sponsorship approval period, the Tribunal finds that the nominator was only required to meet the training benchmark from 15 September 2014 until 16 July 2017.
As evidence of training expenditure during the period of the applicant’s most recent sponsorship approval, the applicant provided:
·A copy of a receipt from MVP Training for $960 dated 7 April 2015; and
·A copy of a receipt from MVP Training for $1,550 dated 8 June 2016.
The applicant presented evidence that in the 2016/17 financial year, the nominator employed a training manager, Ms Patel on a casual basis. The Tribunal accepts that 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 is expenditure that can be counted towards meeting the Training Benchmark B (IMMI 13/030).
The Tribunal examined the applicant’s financial statements from 1 July 2014 to 30 June 2017. The Tribunal finds that the total payroll as of 30 June 2015 was $74,889. Accordingly, 1% of the payroll is $748. The training expenditure recorded in the profit and loss statements as of 30 June 2015 was $1,089.
The Tribunal finds that the total payroll as of 30 June 2016 was $136,894. Accordingly, 1% of the payroll is $1,368. The training expenditure recorded in the profit and loss statements as of 30 June 2016 was $1,550.
The Tribunal finds that the total payroll as of 30 June 2017 was $212,355. Accordingly, 1% of the payroll is $2,123. The Tribunal accepts that in the 2016/17 financial year, the total amount of $7,335 was paid to Ms Patel by the nominating business for her employment as a training manager.
Based on the evidence before it, the Tribunal is satisfied that the applicant complied with the applicable sponsorship obligations relating to the applicant’s training requirements during the period of the most recent sponsorship approval and has fulfilled commitments made relating to meeting the training requirements.
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 nothing before the Tribunal to show any adverse information known to the Department about the relevant business or anyone associated with it.
Accordingly, the Tribunal on the evidence before it 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

Document List – Attachment A
1.On 13 August 2019 the applicant provided the following documents
·Financial Statements for the year ended 30 June 2018
·Letter from Samuel Falanga (Partner, Falanga & Co) to Samantha Vitale (1/8/2019)
·Activity Statement for the periods
o   July 2018 – September 2018
o   January 2019 – March 2019
o   October 2018 – December 2018
Document List – Attachment B
1.On 10 August 2020 the Tribunal invited the applicant to provide information
2.On 24 August 2020 the applicant provided the following documents:
·Activity statement for April 2020
·Pre-filling report 2019 for Munawar Mohammed
·Activity statement for January 2020 – March 2020
·Pre-filling report 2018 for Munawar Mohammed
·Activity statement for July 2019 – September 2019
·Position description for ‘Supply and Distribution Manager’ for ifresh Corporate Hospitality Solutions
·Tax receipt 0428622 from MVP Training & Employment Solutions (8/6/2016), invoice number 2016/108 from MVP Training & Employment Solutions (6/6/2016), Training Proposal 2016 from MVP Training & Employment Solutions.
·Partnership tax return 2018 for Café Projects Pty Ltd & Pavicic Group
·Pre-filling report 2020 for Munawar Mohammed
·ABN look up for Café Projects Pty Ltd & Pavicic Group Pty Ltd & D Romeo & R Romeo
·Financial Statements for the year ended 30 June 2019
·Tax receipt (0428300) from MVP Training & Employment Solutions (7/4/2015), invoice (0420570) from MVP Training & Employment Solutions (6/4/2015), Training Proposal – 2015 from MVP Training & Employment Solutions (1/1/2015)
·Financial Statements for the year ended 30 June 2018
·Notice of assessment for the year ended 30 June 2020 for Mr Munawar Mohammed
·Activity statement for the period October 2019 – December 2019
·Employment contract of Munawar Mohammed (signed and dated 24/11/2016)
·Notification of approval as a Temporary Business Entry Standard Business Sponsorship to Café Projects Pty Ltd & Pavicic Group Pty Ltd & D Romeo & R Romeo (16/7/2014)
·Partnership tax return – 2019, including cover letter from Samuel Falanga (Partner, Falanga & Co) to Dominic (11/6/2020)
·ASIC company statement for Café Projects Pty Ltd
·Notice of assessment for the year ended 30 June 2019 for Mr Munawar Mohammed
3.On 25 August 2020 the applicant provided the following documents:
·Letter from Samantha Vitale to the Tribunal, regarding ‘Genuine Position Submission’ (21/8/2020)
·Activity Statement from Tax Agent Portal for the periods:
o1 April 2016 – 30 June 2016
o1 January 2016 – 31 March 2016
o1 October 2015 – 31 December 2015
o1 July 2015 – 30 September 2015
o1 April 2015 – 30 June 2015
o1 January 2015 – 31 March 2015
o1 October 2014 – 31 December 2014
o1 July 2014 – 30 September 2014
o1 April 2014 – 30 June 2014
o1 January 2014 – 31 March 2014
·Form 5: Product Monitoring Report (8/5 – 22/5 and 2/4-16/4), Form 4: Product Receival Sheet (19/3-24/4 and 26/6-14/8), Delivery Docket (number 000002749017) from Perfection Fresh Australia Pty Ltd to IFresh Corporate Hospitality Solutions, and Packing Slip from the Bread & Butter Project to IFresh Corporate Hospitality Solutions (invoice no: OM176561)
·IFresh Corporate Pantry Training Plan 2019 Financial year
·PAYG payment summary for Bhumaben Patel for the period 1/7/2016 – 30/4/2017
·PAYG payment summary for Bhumaben Patel for the period 1/7/2018 – 30/6/2019
·IFresh Corporate Pantry Training Plan 2019 Financial year
·PAYG payment summary for Bhumaben Patel for the period 09/1/2018 – 30/6/2018
Document List – Attachment C
1.On 18 September 2020, the Tribunal sent the applicant an invitation to attend a hearing. In that invitation the Tribunal requested that the applicant submit specific documents.
2.On 8 October 2020, the applicant provided the following documents:
·Profit and Loss Statement for the 12 months ended 30 June 2016
·Profit and Loss Statement for the 12 months ended 30 June 2020
·Profit and Loss Statement for the 12 months ended 30 June 2017
·Profit and Loss Statement for the 12 months ended 30 June 2015
3.On 23 October 2020, the applicant provided the following documents:
·    PAYG payment summary for Jayson O’Sullivan for the period 24/10/2016 – 5/3/2017
·    PAYG payment summary for Jazz Marriott for the period 1/7/2016 – 30/6/2017
·    PAYG payment summary for Naser Norri period 1/7/2016 – 30/6/2017
·    PAYG payment summary for Chong Ren for the period 1/7/2016 – 26/2/2017
·    PAYG payment summary for Chong Ren for the period 1/7/2016 – 26/2/2017
Document List – Attachment D
1.On 11 November 2020 the applicant provided the following documents:
·Payment Summary Annual Report 2016, including;
oPAYG payment summary for Munawar Mohammed for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Jayson O’Sullivan for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Pooja Jain for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Naser Noori for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Jazz Marriott for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Sameena Khatoon for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Simon Refalo for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Bhumaben Kunal Patel for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Chong Ren for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Sahrish Jamil for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Leyaqat Ali Rahimi for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Getahun Ayana Kono for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Bryan Villanueva Jara for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Ajesh Komar for the period 1 July 2015 to 30 June 2016
oPAYG payment summary for Kawalpreet Kaur for the period 1 July 2015 to 30 June 2016
·Employment contract between ‘ifresh Corporate Hospitality Solutions’ and Bhumaben Patel (signed and dated 12/8/2016) including position description
·Ifresh Employee Details for:
oPooja Jain
oNaser Noori
oJazz Marriott
oBhumaben Patel
oJayson O’Sullivan
oEmad Ershad
oChong (Tommy) Ren
·Submission/Letter from Samantha Vitale (Auswide Visas Professional immigration Consultants) to the Tribunal
·Job advertisements for:
oSupply Chain Manager
oSupply & Distribution Manager
oSupply Chain Officer
·Payment Summary Annual Report 2015, including;
oPAYG payment summary for Munawar Mohammed for the period 1 July 2014 to 30 June 2015
oPAYG payment summary for Jayson O’Sullivan for the period 1 July 2014 to 30 June 2015
oPAYG payment summary for Pooja Jain for the period 1 July 2014 to 30 June 2015
oPAYG payment summary for Ephraim Adriano for the period 1 July 2014 to 30 June 2015
oPAYG payment summary for Syed Faiyaz Mehdi for the period 1 July 2014 to 30 June 2015
oPAYG payment summary for Naser Noori for the period 1 July 2014 to 30 June 2015
oPAYG payment summary for Nuraddeen Abubakar Nuhu for the period 1 July 2014 to 30 June 2015
oPAYG payment summary for Jazz Marriott for the period 1 July 2014 to 30 June 2015
oPAYG payment summary for Sameena Khatoon for the period 1 July 2014 to 30 June 2015
·Live Salary report for ‘logistics manager’ and PayScale report for early-career ‘distribution manager’
·PAYG payment summary for:
oAmarjeet Singh for the period 28/2/2017 – 30/6/2017
oBhumaben Patel for the period 1/7/2016 – 30/4/2017
oBibek Rokka for the period 16/10/2016 – 14/2/2017
oChandanjot Aulakh for the period 13/5/2017 – 29/5/2017
oChong Ren for the period 1/7/2016 – 26/2/2017
oEmad Ershad for the period 1/7/2016 – 6/10/2016
oJayson O’Sullivan for the period 24/10/2016 – 5/3/2017
oJazz Marriott for period 1/7/2016 – 30/6/2017
oMunawar Mohammed for the period 1/7/2016 – 30/6/2017
oNaser Noori for the period 1/7/2016 – 30/6/2017
oParwinder Kaur for the period 3/4/2017 – 30/6/2017
oPooja Jain for the period 1/7/2016 – 9/10/2016
oSamanbir Sandhu for the period 20/2/2017 – 30/6/2017
oSameena Khatoon for the period 1/7/2016 – 30/6/2017
oVaibhav Jayswal for the period 17/6/2017 – 25/6/2017
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 5627

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Natural Justice

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