Cebsjs Pty Ltd (Migration)

[2021] AATA 565

Cebsjs Pty Ltd (Migration) [2021] AATA 565 (28 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Cebsjs Pty Ltd

CASE NUMBER:  1817257

HOME AFFAIRS REFERENCE(S):          BCC2017/2206556

MEMBER:Mary Sheargold

DATE:28 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 28 January 2021 at 6:24pm

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residents Transition Nomination stream – occupation of Cook – evidence of meeting training obligations – updated business and financial information – previous employment of the visa holder – financial capacity to employ the nominee for two years – terms and conditions of employment – training benchmark regulation repealed – reasonable to disregard the training requirements – decision under review set aside       

LEGISLATION

Migration Act 1958, ss 140GB, 245, 360
Migration Amendment (Skilling Australians Fund) Regulations 2018
Migration Regulations 1994, Schedule 2 cl 457.223; rr 1.13, 1.20, 2.87, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 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).

2. The applicant applied for approval on 21 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i) of the Regulations because it did not provide evidence that it had met its obligations in relation to training during the period of its most recent standard business sponsorship approval.

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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.

8. On 9 December 2020, the Tribunal wrote to the applicant inviting the applicant to provide information that demonstrated that the business meets all of the requirements of the criteria in r.5.19(3) of the Regulations at the time of the Tribunal’s decision. A copy of r.5.19(3) was annexed to the letter. A response to the request for information was due by 23 December 2020. On 23 December 2020, the applicant provided the following documents to the Tribunal:

   ·written submissions from the applicant’s representative dated 22 December 2020 in support of the application;

   ·a copy of the current and historical company extract for the applicant from the Australian Securities and Investments Commission (ASIC) dated 23 December 2020;

   ·a copy of the ASIC business name extract for Food O’Clock Indian Restaurant & Café dated 23 December 2020;

   ·Business Activity Statements (BAS) for the applicant for each quarter from 1 July 2018 to 30 September 2020;

   ·copies of detailed financial statements for the applicant’s business for the financial years ending on 30 June 2018 and 30 June 2019;

   ·copies of lodged company tax returns for the applicant for the financial years ending on 30 June 2018 and 30 June 2019;

   ·copies of lease documents for the applicant’s business premises;

   ·a copy of the most recent standard business sponsorship approval for the applicant, being from 16 September 2016 to 16 September 2021;

   ·copies of PAYG summaries for the nominee for each financial year ending on 30 June for 2015 to 2020 inclusive;

   ·copies of payslips for the nominee;

   ·copies of notices of assessment from the Australian Taxation Office for the nominee for the financial years ending on 30 June in 2017, 2019, and 2020;

   ·a copy of the organisational chart for the applicant’s business;

   ·copies of previous employment contracts for the nominee;

   ·a copy of the nominee’s current employment contract, dated 22 December 2020;

   ·a position description for the nominee’s role;

   ·copies of receipts from NSW TAFE – Sydney Institute demonstrating purported fulfilment of the applicant’s obligations under Training Benchmark A during the period of its most recent standard business sponsorship approval; and

   ·a copy of a letter from the applicant’s accountant dated 17 December 2020.

9. Having considered all of the documentation submitted by the applicant, pursuant to s.360(2)(a) of the Act, the Tribunal has determined that it is able to decide the review in the applicant’s favour on the basis of the material now before it.

   The application must be compliant: r.5.19(3)(a)

10. 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.

11. The Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form.  The letter from the Department to the applicant dated 21 June 2017 indicates that the nomination application fee has been paid.

12. The application for approval identifies Mr Jaspreet Singh, the nominee who, according to Departmental records, held a Subclass 457 visa from 12 June 2015 that was granted on the basis of satisfying cl.457.223(4) of Schedule 2 to the Regulations.

13. The application for approval identifies the occupation of Cook, ANZSCO 351411.  Based on the employment documents for the nominee, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by him as the holder of a Subclass 457 visa.  Accordingly, the Tribunal is satisfied that this occupation carries the same 4 digit code (3514) as the occupation carried out by the nominee whilst he held the Subclass 457 visa.

14. Given the above findings, the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

15. 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.

16. Departmental records confirm that the nominator was the standard business sponsor who last identified Mr Singh 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).

17. The applicant has provided the Tribunal with evidence of registration of its company and business name, its status with ASIC, BAS, company tax returns, detailed financial statements, lease documents, and other information about the business’s activities.

18. Based on the material before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia. Therefore, the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

19. 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.

20. In this case, the relevant provision is set out in r.5.19(3)(c)(i). The nomination application was made on 21 June 2017.

21. The nominee was granted a Subclass 457 visa in the nominated occupation of Cook on 12 June 2015, sponsored by the applicant, and according to the representative’s submissions, commenced employment in that role on 16 June 2015.  The applicant was most recently approved as a standard business sponsor from 16 September 2016 to 16 September 2021.

22. The applicant has provided evidence of PAYG for the nominee for each financial year ending on 30 June from 2015 to 2020 inclusive, and notices of assessment from the ATO for the nominee for the financial years ending on 30 June in 2017, 2019, and 2020.  The Tribunal has considered this evidence along with the employment contracts provided in relation to the nominee, the letter from the applicant’s director stating the nominee did not take any unpaid leave in the 2 years prior to this application being made, and the submissions made by the representative.  The Tribunal accepts this evidence and the submissions, noting that the nominee has been employed on a full-time basis in the position since 16 June 2015, and that the application for approval was made after the nominee had been employed in the position for over 2 years.

23. Based on all the evidence before it, the Tribunal is satisfied that the nominee worked in the nominated position for at least 2 of the 3 years immediately before the application was made. Therefore, the Tribunal finds that the requirement in r.5.19(3)(c)(i) is met.

24. 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)

25. 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.

26. The applicant has provided the Tribunal with a copy of the employment agreement between the applicant and the nominee dated 22 December 2020 (the employment contract).  Clause 9(a) of the employment contract states that the nominee will be employed on a full-time basis for a minimum of 38 hours per week.  Clause 2 states that the contract commences when the nominee is granted a Subclass 186 visa sponsored by the applicant.  The representative’s submissions state that the contract of employment “is two years upon the granting of a visa.  The business would employ the nominee indefinitely for as long as the nominee wishes to stay in their employ…there is no term excluding an extension of the contract.”  Having considered the evidence and submissions before it, which the Tribunal accepts, the Tribunal is satisfied that the terms and conditions of employment do not expressly exclude the possibility of extending the period of employment beyond the initial minimum 2 year term required by law.

27. The Tribunal has considered the detailed financial statements for the applicant’s business for the financial years ending on 30 June 2018 and 2019, BAS provided for the most recent 8 quarters, the organisational chart for the applicant’s business, the accountant’s letter dated 17 December 2020, the PAYG summaries for the nominee for each of the financial years ending on 30 June from 2015 to 2020 inclusive, and payslips for the nominee.  The Tribunal notes that the applicant’s business has significant annual turnover, that increased from 2018 to 2019, and that it has maintained the nominee’s salary including superannuation since he was granted his Subclass 457 visa in June 2015.

28. Having considered all the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to continue paying the nominee’s full-time salary for at least 2 years.

29. 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)

30. 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.

31. The Tribunal has considered the employment contract and notes that the nominee’s salary is set at $56,000 per annum plus superannuation.  Under the terms of the Restaurant Industry Award 2010 (MA000119) (the Award), the minimum weekly rate of pay for the highest grade of Cook, being a Cook grade 5 (Tradesperson) is $941.10 per week, which equates to an annual salary of $48,937.20.  The Tribunal notes that the nominee’s salary of $56,000 is above the minimum amount set out in the Award.

32. The Tribunal has considered the terms of the employment contract and finds that the provisions with respect to leave and notice are in line with the minimum standards set out in the National Employment Standards.

33. Based on all the evidence before it, the Tribunal is satisfied that the terms and conditions 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.

34. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

35. 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.

36. As set out above, the applicant was most recently approved as a standard business sponsor from 16 September 2016 to 16 March 2021.  The applicant is required to demonstrate that it met its obligations under either Training Benchmark A or Training Benchmark B in each year of its most recent standard business sponsorship approval as required by law as at the time of this decision.  The applicant has provided evidence regarding its efforts to comply with those obligations in each year of its most recent standard business sponsorship approval. 

    In which sponsorship years must the applicant demonstrate compliance with the training requirements?

37. Regulation 5.19(3)(f)(i) requires the applicant to demonstrate that it has fulfilled the commitments made as a standard business sponsor in relation to training.  The Tribunal notes that at the time this application was made, these obligations were set out in reg 2.87B(2) of the Regulations.  The obligations under reg 2.87B(2) were to comply with requirements relating to training as set out in an instrument in writing for each 12 month period of its sponsorship approval.  Those requirements are set out in Schedule A to IMMI 13/030 – Specification of Training Benchmarks and Training Requirements. 

38. In summary, the applicant must demonstrate that it has made recent expenditure by the business to the equivalent of 2% of the payroll of the business in payments allocated to an industry training fund that operates in the same industry as the business (Training Benchmark A), or 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 (Training Benchmark B), and the applicant must demonstrate that it has met one or other of these training benchmarks for each year of its most recent sponsorship approval.

39. The Tribunal notes that since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks.  As reg 2.87B was repealed on 12 August 2018, the Tribunal confirms that the applicant was not required to meet Training Benchmark A or Training Benchmark B in the third or fourth years of its most recent standard business sponsorship approval, being 16 September 2018 to 15 September 2019, and 16 September 2019 to 16 September 2020.  In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied in the third and fourth years of approval.

40. Further, the Tribunal notes that the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) states at cl.7602 - Operation of amendments that “…(5) A person is not required to comply with subregulation 2.87B(2) … in relation to a period of 12 months ending on or after the commencement day.” The Tribunal notes that the commencement day set out in the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) is 12 August 2018. Accordingly, the Tribunal finds that the applicant was not required to meet Training Benchmark A or Training Benchmark B during the second year of its current standard business sponsorship approval, 16 September 2017 to 16 September 2018. As such, the Tribunal considers that the requirements relating to training have been satisfied in the second year of approval.

41. Therefore, the Tribunal confirms that in order to meet the requirements in r.5.19(3)(f)(i), the applicant is only required to demonstrate that it met its obligations under Training Benchmark A or Training Benchmark B during the first year of its most recent standard business sponsorship approval.

    Has the applicant complied with its obligations in relation to training in the first year of its most recent sponsorship approval?

42. The Tribunal has considered the evidence provided by the applicant in relation to the first year of the applicant’s most recent standard business sponsorship approval and finds that the gross payroll for the applicant’s business for the period from 16 September 2016 to 15 September 2017 was $246,836.00. 

43. The applicant has provided evidence of total expenditure of $1,065.00 in fulfilment of the requirements of Training Benchmark A during the first year of its most recent standard business sponsorship approval, being a donation made to NSW TAFE – Sydney Institute on 20 June 2017.  The Tribunal notes that this amount is less than 2% of the total payroll expenditure for the applicant’s business in the first year of its most recent standard business sponsorship approval.  Therefore, based on the evidence before it, the Tribunal finds that the applicant did not meet the requirements of Training Benchmark A in the first year of its most recent standard business sponsorship approval.

44. There is no evidence before the Tribunal to demonstrate that the applicant met the obligations under Training Benchmark B in the first year of its most recent standard business sponsorship approval. Therefore, the Tribunal finds that the applicant did not comply with its obligations in relation to training in the first year of its most recent standard business sponsorship approval. As a result, the requirements of r.5.19(3)(f)(i) are not met.

45. However, the applicant has provided considerable evidence to demonstrate its genuine intentions in relation to the training obligations required of it as an approved sponsor, and so the Tribunal has considered whether it is reasonable to disregard the training requirements in all the circumstances.

1. In doing so, the Tribunal notes that there is evidence before it to demonstrate that the applicant endeavoured to satisfy the requirement of Training Benchmark A in each year of its most recent standard business sponsorship approval, and notes the applicant’s retrospective efforts to demonstrate its intent to discharge its obligations in relation to the first year of its most recent standard business sponsorship approval.

2. The Tribunal notes that during the second year of its most recent standard business sponsorship approval, the applicant made a payment of $4,532.00 to NSW TAFE – Sydney Institute on 2 October 2017. Coupled with the payment of $1,065 made to NSW TAFE – Sydney Institute in the first year of its most recent standard business sponsorship approval, the Tribunal finds the applicant has made expenditure of $5,597.00 in efforts to discharge its obligations under Training Benchmark A for the first year of its most recent standard business sponsorship approval.

3. The Tribunal notes that further efforts were made by the applicant to demonstrate its intention to fully discharge its training obligations by a further 7 payments made to NSW TAFE – Sydney Institute between June 2018 and September 2020 for a total of $18,273.00.  

4. The Tribunal finds that the applicant has spent a total of $23,870 in attempts to discharge its obligations in relation to Training Benchmark A during the period of its most recent standard business sponsorship approval. 

5. As set out above, the Tribunal finds that the total payroll expenditure by the applicant in the first year of its most recent standard business sponsorship approval was $246,836.00.  The Tribunal finds that the total amount spent on training by the applicant in its attempt to discharge its obligations under the training benchmarks, being $23,870, represents 9.67% of the total payroll expenditure for the applicant for the first year of its most recent standard business sponsorship approval.

6. The Tribunal notes that whilst it is not bound by Departmental policy, the PAM3 guidelines set out the circumstances in which the requirements of r.5.19(3)(f)(i) may be disregarded. These include circumstances where the applicant can demonstrate that it has an aggregate expenditure on training over the term of its most recently approved sponsorship period commensurate with the total training commitment for that period, and this may be assessed at the time of decision.

7. As set out above, the applicant is only required to demonstrate that it has fulfilled its obligations under Training Benchmark A during the first year of its most recent standard business sponsorship approval.  As set out above, when averaged, the applicant is able to demonstrate an expenditure of 9.67% of its total payroll in fulfilment of the obligations under Training Benchmark A during the first year of its most recent standard business sponsorship approval.  Even without the investments of $18,273 made between June 2018 and September 2020, the applicant would be able to demonstrate an aggregate expenditure on training over the term of its most recently approved sponsorship period commensurate with the total training commitment for that period.

8. Based on all the evidence before it, the Tribunal is satisfied that it is reasonable to disregard the requirements of r.5.19(f)(i). Accordingly, the requirement in r.5.19(3)(f) is met.

   No adverse information known to Immigration: r.5.19(3)(g)

9. 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. 

10. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person. 

11. Accordingly, the requirement in r.5.19(3)(g) is met.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

12. 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.

13. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.  The Tribunal notes that the employment contract provides the minimum terms and conditions of employment set out in workplace relations legislation.

14. Accordingly, the requirement in r.5.19(3)(h) is met.

15. 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

16. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    Mary Sheargold
    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.