Cherrabah Management Services Pty Ltd (Migration)

[2020] AATA 5453

Cherrabah Management Services Pty Ltd (Migration) [2020] AATA 5453 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Cherrabah Management Services Pty Ltd

CASE NUMBER:  1809972

HOME AFFAIRS REFERENCE(S):          BCC2017/1065643

MEMBER:Andrew McLean Williams

DATE:20 August 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 20 August 2020 at 5:17pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – ‘adverse information disregarded’ – training benchmark commitments and obligations – genuine need for the nominator to employ a paid employee – no less favourable terms and conditions of employment – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl.457.223

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 22 March 2018, rejecting 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 is Cherrabah Management Services Pty Ltd (ACN 153 562 577), previously known as Cherrabah Employment Services Pty Ltd. 

3. The applicant had applied for the subject approval on 17 March 2018. 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).

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

5. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(3)(g)(i) of the Regulations, because the delegate took the view that there was ‘adverse information’ before the department regarding the applicant or a person associated with the applicant, and it was not reasonable to disregard that information. In the reasons for decision dated 22 March 2018 the delegate expressly referred to the adverse information as being the fact that departmental officers had conducted a site visit to the applicant’s business location - at Warwick in Southern Queensland - on 20 July 2017. On that occasion information was obtained suggesting that the nominee Ms Hongchun Zhang was not working in the nominated position of Restaurant Manager (ANZSCO 141111) or, if working in that position, was doing so only in a limited way.

6. The applicant, represented by its duly appointed corporate officer Mr Cheng Zhou, appeared before the Tribunal by means of telephone 23 June 2020 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent Mr Beau Hartnett (MARN 9474553) of Ausway Migration, who also appeared by telephone on 23 June 2020 in order to make submissions.  Mr Hartnett was assisted in this matter by Ms Kelli Schatkowski (MARN 1683627).  Detailed written submissions (dated 27 March 2020) were lodged before the Tribunal prior to the hearing.

7. 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

8. 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)

9. 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, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.

10. In this case the application was made on-line by means of the department’s web portal.  The portal automatically directs applicants to the approved form.  The automatically generated department letter acknowledging receipt of the application then confirms that the application had been accompanied by the prescribed fee.  The prescribed application form also contains the necessary declaration regarding conduct in contravention of s.245AR(1).  The application identifies Ms Hongchun Zhang as a person who holds a Subclass 457 visa granted on the basis of satisfying cl.457.223(4), and identifies an occupation in relation to the position that is listed in ANZSCO which has the same 4 digit code as the occupation carried out by the Ms Zhang pursuant to her existing Subclass 457 visa.  The application also identifies a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control

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

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

12. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor (‘SBS’) 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 their most recent sponsorship approval.

13. The applicant obtained SBS approval on 4 June 2012.  This was subsequently renewed - on 15 February 2017 - and the applicant is the SBS who last identified Ms Zhang in a nomination made under s.140GB of the Act.  The most recent SBS approval was not obtained by the applicant on the basis of meeting either r.1.20DA, r.2.59(h), or r.2.68(i).  Financial records produced before the Tribunal go to show that the applicant is actively and lawfully operating a business in Australia.

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

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

15. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

    ·     the nominee (Ms Zhang) 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.

16. Ms Hongchun Zhang was granted a Subclass 457 visa for the first time on 16 September 2013.  Her employment with the applicant as a Restaurant Manager commenced on 28 October 2013, and she has remained in the full-time employ of the applicant in the nominated position ever since.  This is the position to which the current application for approval of a nominated position relates.

17. 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)

18. 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 be employed on a full-time basis for at least 2 years, on terms that do not expressly preclude the possibility of an extension.

19. The Tribunal has examined the terms of the employment agreement between Ms Hongchun Zhang and the applicant.  These reveal that Ms Zhang is employed on a full-time basis initially for a period of four years.  The terms and conditions of that employment agreement do not expressly preclude the possibility for an extension to the employment period beyond the initial period provided in the agreement.

20. 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)

21. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position 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.

22. Ms Zhang is paid an annual salary of $55,000 together with mandatory employer superannuation contributions, and standard employee leave entitlements.  The Tribunal notes the position to be based primarily at Warwick, in Southern Queensland.  On the basis of comparative wage data that has been produced before the Tribunal the Tribunal is now satisfied that the remuneration and terms and conditions for Ms Zhang’s employment are no less favourable than are those that are/would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location.

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

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

24. 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.

25. The applicant’s most recent SBS was obtained on 15 February 2017, and requires that the applicant meet or exceed either Training Benchmark A, or Training Benchmark B, in each subsequent year of sponsorship that a Subclass 457 visa holder was approved to be sponsored by the applicant.

26. In the instant case the applicant seeks to meet the requirement via Training Benchmark B, which requires an expenditure on training for employed Australian citizens or Australian permanent residents of at least 1% of business payroll expenditure in each period.  Various financial documents and receipts for training expenditure have been placed before the Tribunal.  These reveal that during the period 15 February 2017 to 14 February 2018, training courses were provided to the applicant’s employees by Quill Group Accounting Pty Ltd and by ShineWing Australia Pty Ltd.  Payroll expenditure during this period were $975,670 and total training expenditure was $10,788.00.  During the next period (15 February 2018 to 14 February 2019), training courses were provided by the National Institute of Education and Technology, and by Leader Accountancy.  Payroll expenditure was $874,517.41 and training expenditure was $9,020.00.  During the next period (15 February 2019 to 14 February 2020) training courses were provided to the applicant’s employees by Ozsky Brisbane Pty Ltd.  During this period payroll expenditures were $755,194.69 and training costs were $8,500.00.  In light of this evidence, in each year after the applicant’s most recent SBS approval, training expenditure has exceeded the 1% of payroll benchmark required by Training Benchmark B.

27. Accordingly, the requirement in r.5.19(3)(f) is met.

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

28. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or that 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. 

29. Regulation 5.19(3)(g) is the basis upon which the delegate had refused the application for approval of the nominated position on 22 March 2018.  As is recorded in paragraph [5] (above) of these reasons, the delegate considered that the department was aware of adverse information by reason that departmental officers had conducted a site visit to the applicant’s business location at Warwick on 20 July 2017, and on that occasion information was obtained suggesting that Ms Zhang was not working in the nominated position or, if working in that position, was doing so only in a limited capacity.

30. In light of this information, on 24 July 2017 Australian Border Force commenced a period of compliance monitoring.  Compliance monitoring by Australian Border Force then continued until 20 September 2018, when Australian Border Force wrote to the applicant, informing that the applicant had been assessed as satisfactorily complying with its sponsorship requirements and the Migration Regulations 1994, such that monitoring would cease.

31. As Mr Hartnett submits, indication by Australian Border Force of there being conformity with the applicant’s sponsorship requirements can be taken to include compliance by the applicant with the particular obligation in r.2.86, requiring that the sponsor ensure that the Subclass 457 visa holder (Ms Zhang) not work in an occupation other than that which had been nominated, as is required by visa condition 8107. 

32. In the Tribunal’s assessment, the letter from Australian Border Force dated 20 September 2018 affords reasonable grounds to now disregard the adverse information arising on 20 July 2017, which is now of diminished relevance, having been overtaken by subsequent events.

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

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

34. 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.

35. 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.

36. In the instant case no information has been brought to the attention of the Tribunal by the department indicating that the applicant has other than 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

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

    Genuine need to employ nominee: r.5.19(3)(i)

38. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

39. On the basis of the evidence heard before the Tribunal in relation to the business operations of the applicant in this case - and related cases involving the same applicant - particularly evidence going towards the fact of the applicant offering itself as a ‘destination’ tourism resort for in-bound groups of Chinese tourists, the Tribunal now accepts that there is a genuine need for the applicant  to employ Ms Zhang, as a paid employee, to work in the position under the nominator’s direct control.

40. Accordingly, the requirement in r.5.19(3)(i) is met.

41. 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

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

    Andrew McLean Williams
    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

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.