Christian Poulsen (Migration)

[2019] AATA 285

Christian Poulsen (Migration) [2019] AATA 285 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Christian Poulsen

CASE NUMBER:  1710687

DIBP REFERENCE(S):  BCC2016/3636279

MEMBER:Ian Berry

DATE:7 February 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 07 February 2019 at 1:28pm

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – occupation of cook – sponsor lawfully operating in Australia – financially healthy business – employment terms and conditions – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 140GB, 245
Migration Regulations 1994, rr 1.13, 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 27 April 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 applicant applied for approval on 1 November 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 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 the applicant failed to demonstrate that he had met the training requirements for the purpose of approval as a standard business sponsor under the 457 Visa program.

5. The applicant appeared before the Tribunal on 20 December 2018 to give representative attended the Tribunal hearing.

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.

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

8. 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.

9. The applicant applied on the approved form and paid the required application fee.

10. The application identifies Mr Paolo Tagliabue for the nominated occupation of ‘cook’. The department’s movement details confirmed that his original 457 Visa was granted on 12 August 2014. The tribunal is satisfied from this evidence that the nominee held a Subclass 457 (Temporary Work (Skilled)) visa at the date the application was made on 1 November 2016.

11. Regulation 5.19(3)(a)(iii) requires the applicant to identify and occupation with the same Ensco code as the occupation carried out by the holder of the Subclass 457 Visa identified in the application. The applicant nominated the position of ‘Cook’ in the application for approval of the nomination, ANZSCO 351411. The Tribunal has carefully considered the tasks undertaken by the nominee and compared these to the tasks for ‘Cook’ listed in ANZSCO as code 351411. The tribunal is also satisfied that the nominee is undertaking the role of cook within the applicant’s business. The tribunal finds that the applicant has identified the occupation of cook ANZSCO 351411, which is the same (4 occupation unit) group code as the occupation carried out by the identified nominee.

12. Given the above findings, the requirements in r.5.19(3)(a) are met.

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

13. 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.

14. The Department’s records confirm the applicant’s approval as a standard business sponsor was from 7 April 2014 to 7 April 2017 with the condition that to he is able to employ one person under the Subclass 457 (Temporary Work (Skilled)) visa.  The Tribunal has regard to the businesses registration and ABN records on the ASIC public databases as well as financial records for the business provided by the applicant to this Tribunal.

15. The Tribunal accepts from this evidence, the applicant is currently registered as a business, ‘Belongil Bistro’. The business is currently registered for GST and as sick records show that he has been registered for GST since 2012.

16. The tribunal is satisfied, based on the ASIC registration records and financial statements provided as evidenced by the applicant, that he is actively and lawfully operating a business in Australia.

17. Given the above, the requirements in r.5.19(3)(b) are met.

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

18. 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 (Temporary Work (Skilled)) visa for at least 2 of the 3 years preceding the nomination application; or

    ·    the nominee holds a Subclass 457 (Temporary Work (Skilled)) visa on the basis that 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.

19. The Tribunal is satisfied that while the employment contract provided to the Tribunal and to the Department is evidence of the employment of the identified nominee, it was dated 29 October 2016. However, this employment agreement expressly states that it is part of ongoing employment of the divide nominee. Movement details of the department’s records reveal that the identified nominee was granted a Subclass 457 (Temporary Work (Skilled)) visa on 12 August 2014. Evidence supplied by the applicant, confirms his employment from honour about that date, with the applicant.

20. 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)

21. 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.

22. The employment agreement dated 29 October 2016 is for a period of at least 4 years. The terms and conditions of employment do not expressly exclude the possibility of an extension.

23. The evidence of the viability of the applicant’s business states that the nurse showed a modest loss in 2014, a reasonable profit in 2015, a very small profit in 2016, a substantial profit in 2017 and a modest profit in 2018. The lowest profit was $1836.42. The maximum profit was in 2018 of $81,286.27. The applicant explained as to the reasonable forecasting of the businesses profitability and indicates a change in its marketing to include a future direction of wedding catering opportunities. The business is located in a tourist area – Byron Bay, and one which is now more seen as a wedding/wedding reception destination. According to the applicant, this trend started in 2017 and seems to be improving.

24. The Tribunal received from the applicant detailed and persuasive evidence and confirmatory submissions regarding the future direction of the restaurant. The Tribunal is satisfied on the evidence before it that the applicant has a financially healthy business upon which the tribunal is satisfied that it will be able to employ their nominee on a full-time basis for at least 2 years in the terms and conditions of employment does not include any restriction on that term.

25. 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)

26. 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.

27. The evidence on the file indicates the nominee’s base salary is $54,699 evidenced by the PAYG payment summary of the edified nominee for the period 1 July 2017 to 30 June 2018. This amount does not include superannuation.

28. The Tribunal notes that the employment contract dated 21 October 2016, which comes into operation upon the granting of the EN 186 visa and in 2016 and the base salary of $54,700 which is paid weekly.

29. The Tribunal received a substantial number of the PAYG statements, printouts of employee’s wage payments. The tribunal is satisfied that the terms and conditions of employment are equivalent to other employees of the same experience performing equivalent work in the same workplace.

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

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

31. 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.

32. By submission dated 17 January 2019, the applicant provided evidence supporting the applicant having complied with the benchmarks. The applicant states that he has employed several apprenticeships and is able to locate evidence of training at least 2 of those chefs as well as evidence supporting the apprenticeship provisions. One apprenticeship was employed from 12 July 2013 to 9 March 2016 and subsequently another apprenticeship was employed from 8 July 2014 to 2 January 2015. The applicant sets out the period and the relevant amounts paid in respect of each apprentice Chef. From 7 April 2014 to 1 November 2014 he paid in respect of the 1^st apprentice Chef $13,278.92 and in respect of the second apprentice Chef $6399.81. For the period to November 2014 to 1 November 2015 he paid $30,248.63 for the first apprentice Chef and $4602.72 for the 2^nd apprentice Chef. There was not any payment made by the applicant, from 2 November 2015 to 7 April 2017. However, the aggregate of the amounts paid for the apprentice chefs was $54,530.08. This sum represents an amount greater than that otherwise would have been payable for the sponsorship period.

33. The tribunal notes the applicant’s turnover, and accepts that this is an appropriate case for the aggregate expenditure be taken into account over the sponsorship period of 7 April 2014 to 7 April 2017 with the identified nominee being granted his Subclass 457 (Temporary Work (Skilled)) visa on 12 August 2014. It is noted in this submission dated 17 January 2019, that the apprenticeship organisation VERTO only manages apprentices that qualify for government benefits and those eligible apprentices must be Australian citizens or permanent residents.

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

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

35. 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. 

36. There is not any information on the Departments file as to adverse information. At the hearing, the applicant did not provide any evidence to suggest that there is adverse information against the applicant.

37. The Department will decision did not raise any matter of concern in its decision of any matter, information or evidence suggesting that there may be adverse information. Certainly, since the decision, nothing has been received by the Tribunal to suggest otherwise.

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

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

39. 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.

40. There is not only evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia, There is nothing on the Department’s file to suggest anything other than compliance with workplace relations laws in Australia.

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

42. 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

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

    Ian Berry
    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.