CHAMBERLAIN HOTEL MR B'S HOTEL & CAVAN HOTEL & THE ALBION PLACE HOTEL (RESERVE HOTELS PTY LTD AS TRUSTEE) (Migration)

[2019] AATA 4015

CHAMBERLAIN HOTEL MR B'S HOTEL & CAVAN HOTEL & THE ALBION PLACE HOTEL (RESERVE HOTELS PTY LTD AS TRUSTEE) (Migration) [2019] AATA 4015 (30 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  CHAMBERLAIN HOTEL MR B'S HOTEL & CAVAN HOTEL & THE ALBION PLACE HOTEL (RESERVE HOTELS PTY LTD AS TRUSTEE)

CASE NUMBER:  1719071

HOME AFFAIRS REFERENCE:                BCC2017/1635377

MEMBER:Lilly Mojsin

DATE:30 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 August 2019 at 10:48am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Hotel or Motel Manager – applicant approved as standard business sponsor – nominee employed full time in position for at least two years before nomination application – nominee to be employed for at least two years full-time – employment extension not precluded – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 360(2)
Migration Regulations 1994 (Cth), r 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 Immigration on 22 August 2017 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 nominator [applicant] lodged a nomination application for approval on 8 May 2017 in relation to an occupation Hotel or Motel Manager (ANZSCO 141311). In that application the nomination type is listed as ‘Temporary Residence Transition’ stream and the application includes a nominee, Sukanta Paksupapark, the holder of a Subclass 457 (Business (Long Stay)) visa at the time of application.

3. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).

4. The applicant’s most recent approval as a Standard Business Sponsor was approved on 11 July 2018.

5. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because the applicant had not provided sufficient evidence to satisfy the delegate it had fulfilled its commitments relating to training requirements.

6. The Tribunal did not invite the applicant to attend a hearing as it decided it should make a favourable decision on the available evidence (s.360(2)).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review 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.

9. Regulation 5.19(3) sets out the requirements for approval of the nomination of a position in Temporary Residence Transition stream.

10. The delegate found the applicant did not satisfy r.5.19 (3)(f).

11. 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.

12. Since the Department made their decision refusing the nomination application, the Department has given further approval to the applicant as a standard business sponsor. This approval was granted on 11 July 2018. As this is the most recent approval as a standard business sponsor, the Tribunal is required to consider whether the applicant has fulfilled any commitments made in relation to that application.

13. The Tribunal accepts that “the most recent approval as a standard business sponsor” is the applicant’s newly-approved sponsorship at the time the Tribunal decision was made.

14. The applicant has not provided any information as to training that has taken place during the period of the applicant’s most recent sponsorship approval, which commenced on 11 July 2018. In light of this approval only being made some 12 months ago, the Tribunal considers it reasonable to disregard the requirements in this instance.

15. 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 must identify a relevant person and occupation.

16. The Tribunal has had regard to the departmental file and finds that the application was made in accordance with the approved form and accompanied by the fee prescribed in r. 5.37. Accordingly, the Tribunal finds that the application for approval was made in accordance with r. 5.19(2) and, therefore, the requirements of r.5.19(3)(a) have been met.

17. The applicant for approval of the nominated position of Hotel or Motel Manager (ANZSCO 141311) was Sukanta Paksupapark [nominee]. According to departmental records the nominee holds a subclass 457 visa granted to her on the basis of satisfying subcl.457.223(4) of schedule 2. As a result, the Tribunal finds that the application for approval meets the requirements of r.5.19(3)(a)(ii).

18. Sub-paragraph 5.19(3)(a)(iii) requires the application for approval to identify an occupation in relation to the position that is listed in ANZSCO and has the same four digit code as the occupation carried out by the Subclass 457 visa holder.

19. The evidence before the Tribunal indicates that the applicant’s most recent Subclass 457 nomination with respect to the nominee’s position of Hotel or Motel Manager (ANZSCO 141311) was approved on 24 November 2014. The nominee was the holder of the subclass 457 visa at the time of lodgement of the nomination application under review. The applicant’s nomination application that is the subject of this review with regard to the nominee’s position has identified the occupation of Hotel or Motel Manager (ANZSCO 141311). The Tribunal finds that the requirements of r 5.19(3)(a)(iii) are met.

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

21. 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, as part on the most recent sponsorship approval.

22. According to departmental records, the nominator was approved as a Standard Business Sponsor on 22 October 2014 in relation to the Subclass 457 visa application lodged by the applicant.

23. Accordingly, the Tribunal finds that the applicant was the Standard Business Sponsor who last identified the nominee as the relevant Subclass 457 visa holder in a nomination under s.140GB. As a result, the Tribunal finds that the requirements of r. 5.19(3)(b)(i) have been met.

24. The Tribunal has had regard to business records available being Financial Statements for the last two fiscal years (including profit and loss and balance sheet) and Tax Returns for the last two fiscal years. The Tribunal is satisfied that the nominee is actively and lawfully operating a business in Australia. The Tribunal finds that the requirements of r.5.19(3)(b)(ii) have been met.

25. Therefore, the requirement in r.5.19(3)(b) is met.

26. Paragraph 5.19(3)(c) requires the applicant to satisfy either sub-paragraph 5.19(3)(c)(i) or (ii). 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 in the 3 years immediately before the application.

27. At the time of nomination is made on 8 May 2017, the nominee had been working in the nominated position for more than 2 years as the holder of a Subclass 457 visa.

28. The applicant provided the Tribunal with the nominee’s PAYG Summary and Notice of Assessment for 2015, 2016, 2017 and 2018.  The Tribunal is satisfied that the nominee, as a 457 visa holder, has been employed full time in Australia in the position for which she holds a Subclass 457 visa for at least two out of the three years immediately before the nomination application.

29. Having regard to the evidence before it, the Tribunal finds that the requirements of r.5.19(3)(c)(i) have been met.

30. Given the above findings, the requirement in r.5.19(3)(c) is met.

31. 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.

32. The Tribunal has had regard to the nominee's employment history and the signed offer of employment and the employment contract dated 28 September 2018 and is satisfied that the applicant will employ the nominee for at least two years full-time and there are no terms that expressly preclude the possibility of an extension.

33. Given the above findings, the requirement in r.5.19(3)(d) is met.

34. 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.

35. The Tribunal has had regard to the nominee's most recent employment contract, which details the terms and conditions of employment including, position duties, salary, leave entitlements and superannuation. The Tribunal has also had regard to the nominee's payslips and on-line salary information provided by the applicant.

36. The Tribunal is satisfied the nominee is paid an annual salary of $57 484 plus superannuation.

37. The evidence before the Tribunal is such that the terms and conditions of employment applicable to the nominated position would be no less favourable than the terms and conditions that are/would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the applicant's business premises. This is evidenced by online salary information for an Australian resident employee in the same position.

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

39. 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 adverse information known to Immigration about the nominator or a person 'associated with' the nominator. For these purposes, 'adverse information' and 'associated with' have the meaning given in r.2.57 (2) and (3): r.5.19(7).

40. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia.

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

42. 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.

43. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance.

44. Accordingly the requirements of r.5.19(3)(h) are met.

45. 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

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

    Lilly Mojsin
    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.