Chefs of Tandoori Pty Ltd (Migration)

[2020] AATA 2479

Chefs of Tandoori Pty Ltd (Migration) [2020] AATA 2479 (2 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chefs of Tandoori Pty Ltd

CASE NUMBER:  1807753

DIBP REFERENCE(S):  BCC2016/2411649

MEMBER:Stavros Georgiadis

DATE:2 April 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 2 April 2020 at 4:50pm

CATCHWORDS
MIGRATION – nomination – Direct Entry Nomination – genuine need for the nominator to employ a paid employee – underpayment of superannuation – non-compliance with workplace relations laws – decision under review affirmed

LEGISLATION
Migration Regulations 1994, rr 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 15 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).

2. The applicant applied for approval on 20 July 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 (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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a) of the Regulations because the delegate was not satisfied there was a genuine need for the nominator to employ a paid employee to work in the position to of Cook (ANZSCO 351411) under the nominator’s direct control.

5. Company Directors, Mr Harpreet Singh and Mr Sandeep Behl, appeared before the Tribunal on behalf of the applicant on 2 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Vishal Chaudhary, the nominee for a Subclass 187 visa in the related matter 1812172.  The related matters were heard together in a combined hearing.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

10. Regulation 5.19(4)(g) requires that the applicant 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.

11. The applicant is a company engaged in running a restaurant of Indian cuisine. The oral evidence is that the business has been operating since 1999 in the metropolitan Adelaide suburb of Malvern, South Australia. The Tribunal accepts the oral evidence that all the applicant’s employees are engaged in the State of South Australia.

12. The applicant’s oral evidence is that it employs several personnel in the business, including full-time and part-time ongoing employees as well as two casual workers. The Tribunal accepts the oral evidence that the nominee for the position, Mr Vishal Chaudhary, has been engaged since 24 April 2016 full time in the position of Cook. This is consistent with Mr Chaudhary’s oral evidence given at the hearing. The two Directors also work in the business (full time) as does each Director’s spouse (part time) and one Director’s son (casual).

13. The Tribunal accepts the applicant’s oral evidence relating to the wages paid in the 2017 and 2018 financial years as this is consistent with the completed financial statements provided to the Tribunal and lodged with the Australian Taxation Office (ATO). The Tribunal also accepts the oral evidence provided to the Tribunal at the hearing regarding wages paid to the two Directors and each spouse in 2019 and 2018 (discussed below). The Tribunal has had regard to the letter from the applicant’s accountants Odhavi & Associates (CPA), dated 2 April 2020 (provided after the hearing) setting out: “The Chefs of Tandoori Pty Ltd’s directors have been compliant with superannuation payments for their employees however there has been a shortfall of $2,500 in the year 2018- 2019, which they will remedy in 7 days.”  The Tribunal notes this letter however, does not rely on it for any adverse findings as the Tribunal accepts the oral evidence provided at the hearing relating to underpayment of superannuation in the 2019 financial year.

14. At the hearing, the applicant told the Tribunal that in 2019, wages of $18,500 were paid to each of the two working Directors and $26,052 to each Director’s spouse who were each working in the business approximately 25 hours per week.  For these four persons the wages, in aggregate, amount to $89,104 for the year. The oral evidence is that a superannuation contribution of $6,000 was paid on 27 July 2019 in respect of these wages relating to the 2018 financial year. The Tribunal put to the applicant that at the applicable Superannuation Guarantee rate of 9.5%, the superannuation payable under Commonwealth legislation relating to workplace relations is $8,464.88 and that therefore, the applicant appears to have underpaid superannuation entitlements to employees engaged in South Australia.

15. The applicant’s response at hearing was that it would remedy any underpayment of superannuation forthwith, which is consistent with the aforementioned letter of 2 April 2020 from the applicant’s accountants. The Tribunal also raised concerns for the purposes of meeting cl.5.19(4)(g) criteria, whether the applicant had underpaid any superannuation in previous years.  The Tribunal noted from the financial records provided, that for 2017 wages of $284,869, superannuation of $19,458 was paid rather than the anticipated $27,063 9.5%; and that in 2018 for wages of $256,649, superannuation of $6,211 was paid rather than the anticipated $24,382 falling ostensibly well short of the Superannuation Guarantee requirement of 9.5% of applicable wages payroll. The applicant in response, explained that 2017-2018 was a particularly “tough year”. When questioned further about this and the superannuation contributions actually paid for that financial year, the applicant told the Tribunal that no superannuation was paid at all, in 2018, in respect of the Directors or their spouses working in the business. This is contrasted with earnings that year in the order of $26,000 for each of the working Directors (full time) and $18,200 for each spouse (part time).

16. The Tribunal is satisfied that the Superannuation Guarantee (relevantly 9.5%) is payable for any employee earning more than $450 per month (subject to an upper cap limit known as the maximum super contribution base (MSCB which is in excess of $200,000pa)) beyond which no superannuation is payable.  The evidence is that none of the part time or full time employees fall into such an exempt category or other exempt categories (minor under 18 years, apprentices and such like) to negate the requirement to pay superannuation contributions.

17. There is no evidence that the required superannuation payments were prepaid in earlier years for any material period, or that they have been subsequently remedied to the correct level by the time the matter came on for hearing and decision. The Tribunal has had regard to the applicant’s undertaking to pay the Superannuation Guarantee charge on time and that the shortfall of $2,500 in the 2019 financial year will be remedied within 7 days.  As aforementioned, the Tribunal notes the P&L statements for 2017 and 2018 financial years but relies, and places weight on, the oral evidence discussed above relating to the superannuation contributions made in successive years 2018 and 2019.

18. Having considered the available evidence before it, the Tribunal finds that the required superannuation contribution of 9.5% of the applicant’s wages and salaries was not fully paid in 2018 and 2019 in respect of its applicable employees.  From this, the Tribunal is not satisfied that the applicant has substantially complied with its superannuation contribution obligations under the (Superannuation Guarantee) laws of the Commonwealth relating to SA employees. 

19. Having considered the applicant’s oral evidence and submissions discussed, the Tribunal is not satisfied that the nominator has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

20. Accordingly, the requirements of r.5.19(4)(g) are not met.

21. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

22. The Tribunal affirms the decision under review to refuse the nomination.

    Stavros Georgiadis
    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.

    …

    Direct Entry nomination

    (4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’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)       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

    (g)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; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).