Cocomil Pty Ltd (Migration)

[2018] AATA 3813

Cocomil Pty Ltd (Migration) [2018] AATA 3813 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Cocomil Pty Ltd

CASE NUMBER:  1702170

HOME AFFAIRS REFERENCE:                BCC2016/2226718

MEMBER:Lilly Mojsin

DATE:2 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2018 at 1:30pm

CATCHWORDS
Migration – Nomination refusal – Temporary Residence Transition nomination stream – Café or Restaurant Manager – Sufficient evidence of training requirements – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, rr 1.13, 2.87, 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 18 January 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. In this review, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

3. The applicant company applied for approval on 30 June 2016.

4. 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).

5. The nominating business Cocomil Pty Ltd  (ABN: 494407334387) [company] lodged a nomination on 29 June 2016 for the occupation of Café or Restaurant Manager ANZCO: 141111. The nominee was Danilo Lonoce. The nominating business Cocomil Pty Ltd  operates a restaurant Olivetto at Rhodes NSW.

6. The delegate refused the application on the basis the applicant’s nomination did not satisfy 5.19(3)(f) of the Regulations because the company had not provided sufficient evidence of training requirements.

7. The representative of the company appeared before the Tribunal on 2 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the company 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.

10. The company submitted to the Tribunal the following documents:

    ·Invoice August 2013 Scribble and Style for training costs $4500

    ·Invoice for Training by Michael Tamburri of La Vigna Wine Oasis dated 16.1.14 for $6661.38

    ·Invoice for Training by Michael Tamburri of La Vigna Wine Oasis dated 22.10.14 for $4185

    ·Invoice NS Accounting for training dated 27 October 2014 for $1500

    ·Invoice for Training by Michael Tamburri of La Vigna Wine Oasis dated 3.6.15 for $5582.54

    ·Invoice for Training Pixel Pos dated 16 February 2015 for $4840

    ·Invoice The Wood Fired Group for training dated 9 March 2015 for $2064

    ·Invoice The Wood Fired Group for training dated 6 April 2015 for $2064

    ·Profit and Loss Statement of company for period 16 October 2012 to 30 June 2013

    ·Profit and Loss Statement of company for period 1 July 2014 to 30 June 2015

    ·Profit and Loss Statement of company for period 1 July 2015 to 15 October 2015

    ·Statutory Declaration of Michael Tamburri attesting to completing the training

    ·Staff payroll summary 2012 -2013

    ·Company Tax return 2017, 2016,

11. Regulation 5.19(3)(f) states:

    (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)

12. 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 maybe disregarded if it is reasonable to do so.

13. The first Subclass 457 visa was granted on 15 October 2012, therefore the Tribunal finds the period of the company’s most recent sponsorship approval was 15 October 2012. The applicant must show whether the applicant fulfilled commitments made relating to meeting the training requirements since that date. 

14. Regulation 2.87B(2) and (3) of Division 2.19 requires the company to comply with requirements specified in an instrument made by the Minister during each 12 month period in a three year period from the commencement of approval on 15 October 2012 to 15 October 2015.

15. At the time the applicant was approved as a standard business sponsor, the relevant instrument specifying the training benchmarks and training requirements was IMMI 13/030. It provided that the business is required to show that the training that has been, and continues to be provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business. This could be satisfied through meeting benchmark A or B.

16. Immi 13/010 provides that an established business will satisfy training benchmarks if it has recent expenditure equivalent to:

    ·at least 2% of the payroll of the business in payments to a relevant industry training fund; or

    ·at least 1% of the payroll of the business for training of a kind specified in the instrument to employees of the business.

17. The Tribunal accepts that the company met the training requirements for the 2014 taxation year as the expenditure on training was $11,181.38 and this amount exceeds the required 1% for payroll of $871785.   For the 2015 tax year the applicant spent $16107.52 which exceeds the required 1% for payroll of $862468. For the 2016 tax year the company did not allocate any funds to training from 1 July 2015 to 15 October 2015.

18. The Tribunal has aggregated the expenditure on training. The payroll for the period is $3499256. The expenditure on training is $27288. This is a shortfall of $7704.

19. The company has an Australia resident apprentice. Immi 13/010 provides that expenditure can include employment of an apprentice. The Tribunal accepts that Kamara Mariatu, an Australian citizen, was an apprentice working for the company and her salary was $31 908 in the 2012-2013 financial period. This expenditure will meet the training requirements for the 2013 taxation year for a payroll of $607212. The Tribunal notes that the company is unable to positively affirm the date the apprentice ceased working in the business as an apprentice but the Tribunal notes that she continues to be employed with the company.

20. In light of the expenditure by the company employing an apprentice coupled with expenditure for external trainers, as detailed above, the Tribunal is satisfied that it is reasonable to disregard the lack of expenditure on training for the period 1 July 2015 to 15 October 2015.

21. Therefore the company satisfies r.5.19(3)(f)(i).

22. 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.

23. There is no adverse information before the Tribunal, therefore the applicant meets r.5.19(3)(g). Accordingly, the requirement in r.5.19(3)(g) is met.

24. 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

25. 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.