Chung HWA Pty Ltd (Migration)

[2021] AATA 1785

Chung HWA Pty Ltd (Migration) [2021] AATA 1785 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Chung HWA Pty Ltd

CASE NUMBER:  1819663

HOME AFFAIRS REFERENCE(S):          BCC2017/1820698

MEMBER:Peter Emmerton

DATE11 May 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 11 May 2021 at 12:58pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – employed in position for at least 2 years in 3-year period before application made – manager performing lower-level tasks from time to time – insufficient response to department about adverse information – credible documentary and oral evidence – nominator’s age and reliance on nominee, especially during COVID-19 restrictions – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 376
Migration Regulations 1994 (Cth), r 5.19(3)(c)(i)(A)(II)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 19 June 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 22 May 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)(c)(i)(A)(II) of the Regulations because they were not satisfied on assessment of the available information, it has been demonstrated that the nominee has been employed in the position in respect of which the person holds the subclass 457 visa for a total period of at least two years (not including any period of unpaid leave) in the period of three years immediately before the nominator made the application.

5. The applicant represented by Mr Marcus Foo, Director, representing Chung Hwa Pty Ltd appeared before the Tribunal on 11 May 2021 in a combined hearing with MRT file ref. 1822533 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Wei Jiang, the visa applicant.

6. The Tribunal found the individuals presenting evidence to be credible and they appeared to answer questions in an open and honest manner without obfuscation.

7. The Tribunal was assisted during the hearing by an interpreter fluent in Mandarin Chinese and English languages.

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

9. 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

10. 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.

11. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

12. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

13. The Tribunal informed the nominator at the hearing that there was a non-disclosure certificate issued by the department under s 376 on file. That means disclosure of the information is at the discretion of the Tribunal as deemed necessary. It was explained during the hearing that it was an anonymous accusation, no evidence was produced to support the accusation and no apparent efforts made to verify the accusation has been made by the department. The Tribunal has decided to disregard this accusation as irrelevant as it is not possible to test an anonymous accusation and therefore unjust to consider it as evidence. It has been given no weight in the Tribunal’s decision-making process and has been completely disregarded. The Tribunal asked the nominator if he wished to ask any questions, respond to or comment in relation to this matter, he declined as did his representative and the visa applicant.

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

14. 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 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

15. The company applied on the approved form, paid the required application fee and included the required written certification relating to conduct that contravenes s.245AR(1). The application therefore satisfies r.5.19(3)(a)(i).

16. The application identifies Ms Wei Jiang for the nominated occupation of Café or Restaurant Manager, ANZSCO 141111. The Department’s movement records, and the visa applicant’s application confirm that her 457 Visa was granted on 27 January 2015. 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 22 May 2017. The applicant therefore satisfies the requirement in r.5.19(3)(a)(ii).

17. Regulation 5.19(3)(a)(iii) requires the applicant to identify an occupation with the same ANZSCO unit code as the occupation carried out by the holder of the Subclass 457 Visa identified in the application. The company nominated the position of Café or Restaurant Manager in the application for approval of the nomination, ANZSCO 141111. The Tribunal has carefully considered the tasks undertaken by the nominee and compared these to the tasks listed in ANZSCO 141111. The Tribunal is satisfied that the nominee is undertaking the role of Café or Restaurant Manager within the business. The Tribunal finds that the applicant has identified the occupation of ANZSCO 141111, which has the same (4-digit occupation unit) group code as the occupation carried out by Ms Wei Jiang. Accordingly, the Tribunal finds that the applicant satisfies r.5.19(3)(a)(iii).

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

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

19. 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.

20. The Department's records confirm the applicant was the Standard Business Sponsor who last identified Ms Wei Jiang in a nomination under section 140GB of the Act. In that case, it satisfies regulation r.5.19(3)(b)(i).

21. The Department's records confirm the company was approved as a Standard Business Sponsor, (SBS), most recently for 3 years from 8 January 2015 until 8 January 2018. The Tribunal has had regard to the business registration and ABN records on the ASIC public databases, as well as ATO Tax Returns for FY 19 and FY 20 and current BAS documentation for the business, provided by the applicant, to the Tribunal. The Tribunal accepts from this that the applicant is currently registered as a business, Chung Hwa Pty Ltd, (ABN 82 007 841 349) and ASIC records show that it has been registered since 8 June 2000. The Tribunal is satisfied based on the fore-mentioned evidence that the applicant is actively and lawfully operating a business in Australia. It therefore satisfies regulation r.5.19(3)(b)(ii).

22. The Department's records also confirm the applicant did not obtain approval as a Standard Business Sponsor on the basis that it was operating a business outside Australia. In that case, it meets the criteria in regulation r.5.19(3)(b)(iii).

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

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

24. 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 they hold 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 they were 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.

25. The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(c)(i)(A)(II) of the Regulations. This was because they were not satisfied on assessment of the available information, it had been demonstrated that the nominee had been employed in the position in respect of which the person holds the subclass 457 visa for a total period of at least two years (not including any period of unpaid leave), in the period of three years immediately before the nominator made the application.

26. They had formed a view that the visa applicant had been performing lesser tasks and not acting in the role of Café or Restaurant Manager, ANZSCO 141111. This was in part because Departmental records show that, on 12 December 2017, the Department issued a Notice of Decision to the sponsor, CHUNG HWA PTY LTD, an approved standard business sponsor under section 140E of the Migration Act 1958 (the Act), in relation to their compliance with the Act and the Migration Regulations 1994 (the Regulations).

27. The Notice of Decision advised that Chung Hwa Pty Ltd had failed to satisfy two sponsorship obligations, namely:

    • Regulation 2.84 Obligation to provide information to Immigration when certain events occur
    • Regulation 2.86 Obligation to ensure primary sponsored person works or participates in
      nominated occupation, program or activity.

    The Notice of Decision was, amongst other items, based on an audit which included 457 visa holder Wei JIANG dob [Date] who is employed in the role of Café/Restaurant Manager (ANZSCO 141111). The Tribunal notes that the breach of r. 2.84 occurred because the nominator was 4 days late notifying the change of Director resulting from the death of that Director. The Notice of Decision also states that 'the sponsor has failed to ensure the visa holder only undertakes duties approved at nomination for the Café/Restaurant Manager role. Therefore, a breach of Regulation 2.86 has occurred.'

28. The Tribunal notes that the department issued a warning and took no further action. The nominator put forward an assertion to the delegate that this “warning only” action indicates that the breach was considered minor. They also state that the reality of the restaurant industry is that a Manager will also perform some tasks not specified as Management level. The Tribunal questioned the nominator during the hearing regarding the breach and the assertion that it was minor and that Managers in restaurants will from time to time perform customer service tasks not associated with the higher management level role.

29. The Tribunal in large part concurs with the views of the nominator in this respect. It has formed the view that had the department believed the breaches under Regulation 2.84 and Regulation 2.86 were serious they would have taken stronger action than just issuing a warning. The Tribunal believes that the department takes breaches very seriously and is inclined to enforce the regulations whenever they detect serious breaches. The Tribunal is also aware and accepts as practical reality that a restaurant manager will perform non-management level tasks from time to time, particularly in the instance of customer service.

30. The subsequent issue however was the fact that the nominator did not provide sufficient evidence when asked to comment on adverse information for a nomination application for a ENS Nomination (Temporary Residence Transition) (subclass 186) visa which was sent to the nominator on 07 April 2018. The nominator was provided 28 days in which to respond.

31. The delegate acknowledged a range of documents and emails were provided to them, in response to their correspondence, to demonstrate the role of the nominee was as a Café or Restaurant Manager. However, the delegate assessed that they did not adequately cover the relevant earlier time span associated with demonstrating compliance for at least 2 years of the previous 3 years prior to the visa application on 22 May 2017.

32. The delegate also acknowledged that a Manager may perform non-management roles on occasion, such as customer service, as stated by the nominator. However, they were not satisfied that the nominator had adequately provided more than a general statement in this regard with no substantiating evidence proffered in relation to time allocations.

33. The Tribunal has been provided with considerably more time appropriate evidence supporting the nominator’s claims that the nominee is operating in the role of Café or Restaurant Manager. The documents include the following:

    ·Initial employment contract for the nominee as Restaurant Manager dated 10 March 2014

    ·Employment contract dated 5 May 2017

    ·A large range of email notices signed by the nominee as Manager in the date range up to and beyond 2 years prior to the visa application

    ·PAYG Payment Summaries for the visa applicant demonstrating Manager level salary payments at least 2 years prior to visa application

    ·Training Records signed by the visa applicant as the Manager

    ·Stock and Consumables Reports

    ·Termination of supplier contracts signed by the visa applicant as Manager

34. The Tribunal explored and corroborate the evidence stated above during the hearing. It is satisfied that the documents presented are genuine and they adequately demonstrate that the visa applicant was occupying and performing in the position of Café or Restaurant Manager for at least 2 years of the preceding 3 years, prior to visa application.

35. Given the above, the requirements in r.5.19(3)(c)(i)(A)(ll) are met.

36. The Tribunal is satisfied from the evidence presented in the original visa application provided by the Department, the original employment contract and written evidence provided prior to the hearing and corroborated at the hearing, that Ms Wei Jiang  has been employed as a Café or Restaurant Manager with Chung Hwa Pty Ltd since the date of her original contract.

37. The Tribunal accepts as fact the verbal evidence presented at the hearing by the visa applicant which was corroborated by the nominator, that Ms Jiang is a highly experienced Food and Beverage Executive. She had been working in some of the most esteemed hotels in Shanghai for a period of 20 years prior to entering Mr Foo’s employ. It is not credible that such a highly credentialed individual would be satisfied with working as a food server, when more senior positions would be easily within her grasp should she desire them.

38. The Tribunal finds from the above evidence that Ms Wei Jiang was employed full-time in Australia, as a Café or Restaurant Manager by Chung Hwa Pty Ltd for more than two of the three years preceding the nomination application made on 22 May 2017. During this period, she was the holder of a Subclass 457 visa granted on 27 January 2015.

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

    Term of employment of the visa holder: r.5.19(3)(d)

40. Regulation 5.19(3)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.

41. The Tribunal notes that the business is a mid-sized organisation with substantial positive trading profits. The ATO Tax Returns for FY 19 and FY 20 and correlating financial statements show sustained trading profits. The FY 20 results reflect the slight negative impact of the Covid-19 pandemic as the Tribunal would expect. The nominee was paid throughout the period under review. Evidence presented at the hearing stated that the results for FY 21 will demonstrate a return to above normal pre-Covid-19 trading conditions. The Tribunal accepted this statement as both reasonable and accurate. The financial results for FY 21, Q1 and Q2 provide prior to the hearing, demonstrate a substantial rebound in revenues and profit.

42. The Tribunal is satisfied that the nominator will be able to sustainably employ the nominee for the required 2-year minimum period.

43. The Tribunal has had regard to the signed current Employment Agreement, dated 5 May 2017, with a salary of $55,000 plus 9.5% Superannuation. The Tribunal is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of the possibility of extending the period of employment.

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

    No less favourable terms and condition of employment: r.5.19(3)(e)

45. 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.

46. The Tribunal has been provided with the nominee’s current employment contract, ($55,000) and her original contract dated 10 March 2014, ($55,000). The Tribunal accepts, having researched the salaries offered for similar positions and perused the evidence of remuneration for other similar roles that the nominee’s current contracted annual salary plus Superannuation, is in the mid quartiles. The Tribunal notes that the rate being paid is in excess of the relevant award.

47. The Tribunal acknowledges the challenges of recruiting and retaining qualified Café and Restaurant Managers throughout Australia. The Tribunal perused 1 well known employment web site and observes that approximately 22,000 jobs are currently on offer throughout Australia with 1,000 of the roles available in South Australia.

48. One of the challenges faced by the nominator is their reliance upon Ms Jiang and the current state of the employment market in this field. The Tribunal notes that the nominator is in his more senior years, (early 70s) and stated that he is unable to cope with the current technology trends nor the stresses associated with running the front of house operations. He relies heavily upon his Manager who in turn liaises with the Head Chef. The Tribunal is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience, performing equivalent work in the same workplace.

1. Accordingly, the requirements of r.5.19(3)(e) are met.

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

3. 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.

4. The applicant was most recently approved as a Standard Business Sponsor, (SBS) on 8 January 2015 for a period of 3 years. The Tribunal notes that the nominator has provided receipts covered the relevant SBS period that demonstrate a level of investment in appropriate training substantially exceeding the required level to meet their commitments and obligations. When questioned why this was the case Mr Foo explained that investing in staff is good business as it helps him to retain staff for long periods of time which in turn keeps customers happy. The Tribunal observes that he appears to have genuinely engaged with the spirit of the legislation, not just a need to comply, in order to satisfy the conditions associated with his nomination. In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied.

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

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

6. 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 r.1.13A and 1.13B. The Tribunal notes that a breach occurred, the department issued a Notice of Decision on 12 December 2017 stating that Regulation 2.84 and Regulation 2.86 had been breached. A warning was issued, no further action was taken.

7. The Tribunal therefore considers this a relatively minor infringement which occurred in 2017, substantially prior to this decision. In the absence of any other evidence to suggest a pattern of deliberate non-compliance or actions undertaken by the department associated with non-compliance, the Tribunal considers it is reasonable to disregard any such information.

8. Accordingly, the requirements of r.5.19(3)(g) are met.

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

9. Regulation 5.19(3)(h) 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia.

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

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

11. 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.

12. The Tribunal notes that the business is substantial and has a total of approximately 10 employees including the visa applicant and the Director/owner. The staff consist of full-time, casual and part-time employees. It is also aware that the business has multiple income streams including, dine-in. take-away, home delivery and catering. All of which require supervision and management.

13. Evidence was presented prior to the hearing of the restaurant’s esteemed reputation within the community for fine Chinese food. This is further supported by looking at popular restaurant and travel rating web sites. The Tribunal accepts the submission from the nominator that one of the reasons the restaurant has achieved reputational and financial success, even during and post Covid-19, is as a direct result of the work and dedication of the visa applicant and her managerial style.

14. It is not possible for a restaurant to operate successfully without a Café or Restaurant Manager present for the trading hours. Again, the Tribunal observes that the Director is not an active participant in the operations on a day to day basis however does work in the kitchen, reporting to the Head Chef. In the Tribunal’s experience it is not possible to be working in the kitchen, successfully run the overall business and have a front of house customer focussed orientation.

15. Accordingly, the requirements of r.5.19(3)(i) are met.

    Conclusion

16. Based on the findings above, the Tribunal is satisfied that the applicant meets all the requirements of r.5.19(3) and therefore, r.5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Peter Emmerton
    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.