Creatively Cheeky Pty Ltd (Migration)
[2021] AATA 1886
•29 April 2021
Creatively Cheeky Pty Ltd (Migration) [2021] AATA 1886 (29 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Creatively Cheeky Pty Ltd
CASE NUMBER: 1820927
HOME AFFAIRS REFERENCE(S): BCC2017/3569380
MEMBER:Peter Emmerton
DATE:29 April 2021
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 29 April 2021 at 2:16pm
CATCHWORDS
MIGRATION – nomination of a position – Temporary Residents Transition Nomination stream – position of Chef – evidence of meeting training obligations – tasks undertaken by the nominee – standard business sponsor – employed in the position for at least 2 years previously – terms and conditions of employment – nature of the training expenditure – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140GB, 245
Migration Regulations 1994, Schedule 2 cl 457.223; rr 1.13, 2.87, 5.19STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 July 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).
The applicant applied for approval on 29 September 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
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 nominator had failed to demonstrate that they had met the training requirements required for the purpose of their most recent SBS, (28 July 2014-28 July 2017).
The applicant was represented in relation to the review by its registered migration agent.
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
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.
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.
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.
The application must be compliant: r.5.19(3)(a)
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.
The company applied on the approved form and paid the required application fee. The application therefore satisfies r.5.19(3)(a)(i).
The application identifies Mr Jean Marc Alexandre Frivet for the nominated occupation, Chef, ANZSCO 351311. The Department’s movement records coupled with his application confirm that his original 457 visa was granted on 9 July 2010. A second 457 visa was granted on 3 July 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 29 September 2017. The applicant, therefore, satisfies the requirement in r.5.19(3)(a)(ii).
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 Chef in the application for approval of the nomination, ANZSCO 351311. The Tribunal has carefully considered the tasks undertaken by the nominee and compared these to the tasks for Chef listed in ANZSCO 351311. The Tribunal is satisfied that the nominee is undertaking the role of Chef within the business. The Tribunal finds that the applicant has identified the occupation of Chef ANZSCO 351311, which has the same (4-digit occupation unit) group code as the occupation carried out by Mr Frivet. Accordingly, the Tribunal finds that the applicant satisfies r.5.19(3)(a)(iii).
Given the above findings, the requirements in r.5.19(3)(a) are met.
Status of the nominator r.5.19(3)(b)
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.
The Department's records confirm the company was approved as a Standard Business Sponsor, (SBS), most recently for 3 years from 28 July 2014. The Tribunal has had regard to the business registration and ABN records on the ASIC public databases, as well as financial records, current BAS documents and Tax Returns for FY 2019 and 2020 for the business, provided by the applicant to the Tribunal. The Tribunal accepts from this that the applicant is currently registered as a business, Creatively Cheeky Pty Ltd, (ABN 39 169 438 635) and ASIC records show that it has been registered since 26 May 2014. 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).
The Department's records confirm the applicant was the Standard Business Sponsor who last identified Mr Frivet in a nomination under section 140GB of the Act. In that case, it satisfies regulation r.5.19(3)(b)(i).
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).
Given the above, the requirements in r.5.19(3)(b) are met.
Previous employment of the nominee: r.5.19(3)(c)
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.
The Tribunal is satisfied from the evidence presented in the original visa application, provided by the Department and the visa applicants employment records and Resume’ that Mr Frivet has been employed as a Chef since the granting of his first 457 visa on 9 July 2010.
The Tribunal finds from the above evidence that Mr Frivet was employed full-time in Australia, as a Chef for more than two of the three years preceding the nomination application made on 29 September 2017. During this period, he was the holder of a Subclass 457 visa granted on 3 July 2014.
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)
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.
The Tribunal notes that the business is an established hospitality enterprise with substantial income and aligned profit. This is demonstrated by the most recent 2 years of ATO Tax Returns and current BAS documents. The Visa holder has been employed throughout the period of the current financial documents, given in evidence, which show a substantial profit upon which tax is levied.
The Tribunal has had regard to the signed Employment Agreement, dated 22 October 2015, with a salary of $54,000 plus Superannuation and a subsequent Addendum dated 25 January 2021 with the same conditions of employment plus an amended salary of $58,240 plus Superannuation of 9.5%. 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.
The Tribunal is satisfied that the business will be able to sustainably employ the nominee for the required 2-year period minimum.
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)
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.
The Tribunal has been provided with the nominee’s current employment contract. The Tribunal accepts that the nominee’s annual salary of $58,240 plus Superannuation, as appropriate and is reflective of his experience relevant to the nominated position. Additionally, the Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence available to it.
The Tribunal acknowledges the challenges of recruiting and retaining qualified Chefs throughout large portions of Australia. One of the challenges faced by the nominator is their reliance upon Mr Frivet. The Tribunal is cognisant of the extremely large number of vacancies in this field in both Western Australia and Australia wide. This has been further exacerbated by the current border restrictions which have effectively stopped temporary and permanent immigration. 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.
Accordingly, the requirements of r.5.19(3)(e) are met.
Training commitments and obligations: r.5.19(3)(f)
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.
A person who is a standard business sponsor of at least one primary sponsored person must comply with requirements relating to training of Australian workers, in each year the person engages a Subclass 457 visa holder.[1]
[1] r.2.87B as inserted by SLI 2013 No.146. In addition to sanctions being able to be imposed for breach of this sponsorshipThe requirements relating to training are specified by the Minister in an instrument in writing,[2] and are the same requirements as the benchmarks for the training of Australian citizens and Australian permanent residents specified for the criteria for approval as a standard business sponsor under r.2.87B.
[2] r.2.87B(2) and (3). The current instrument is in the Register of Instruments – Business Visas, under the ‘Training’ tab.
For an established business as is the case here, expenditure that can count towards this benchmark includes:
· paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy;
· funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy;
· employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business;
· employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job;
· evidence of payment of external providers to deliver training for Australian employees;
· on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:
o the learning outcomes of the employee at each stage;
o how the progress of the employee will be monitored and assessed;
o how the program will provide additional and enhanced skills;
o the use of qualified trainers to develop the program and set assessments; and
o the number of people participating and their skill/occupation.
The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because they were not satisfied that the nominator had adequately demonstrated their compliance with the stipulated training requirements. It was not possible for the delegate to reach an alternate conclusion as the nominator had failed to provide adequate corroborative documentation in support of their claim.
The Tribunal has carefully reviewed the detailed information subsequently provided to it, by the applicant, in relation to the nature of the expenditure undertaken for training its’ Australian citizens or permanent resident personnel and is satisfied that it fits within the descriptions above of expenditure that can count towards this benchmark. The Tribunal notes that substantially more relevant information supporting the training claims has been provided to it, than was initially provided to the delegate. The Tribunal accepts the statement that the failure to provide information regarding the Trainer employed by them was an oversight at the time of application by their representative.
Evidence of the appropriate levels of expenditure was provided in the form of financial documentation, ATO Tax Returns, payroll advice and PAYG summaries for the Trainer on staff. This clearly shows in all but FY 2015 and FY 2016, the expenditure on the in-house Trainer meets or substantially exceeds the required level of expenditure. Receipts were provided which clearly show that the shortfall in expenditure was made up for by contribution to an appropriate fund. Paragraph 41 summarises the information provided.
Column 1 Column 2 Column 3 Column 4 Column 5 Period Payroll Training Salary of the Trainer Gap Contribution Expenditure Benchmark A - 2% 2014-2015 $722,852 $14,458 $6,600 ($14,458-$6600) =$7858 2015-2016 $1,507,836 $30,157 $28,050 ($30,157-$28,050) =$2107 2016-2017 $869,009 $17,381 $31,450 No Gap 2017-2018 $636,050 $12,721 $33,800 No Gap 2018-2019 $704,255 $14,085 $39,700 No Gap 2019-2020 $874,049 $17,481 $42,628 No Gap
The Tribunal also notes the evidence provided substantiating the ongoing commitment to training for the FY 2018-FY 2020 period. Although this latter evidence is not required due to the change in legislation from 18 March 2018, it does in the Tribunal’s view support the assertion by the organisation that ongoing training is central to the success of their organisation and its’ culture.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia.
Accordingly, the requirements of r.5.19(3)(g) are met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
Accordingly, the requirements of r.5.19(3)(h) are met.
Conclusion
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Peter Emmerton
MemberATTACHMENT - 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.
obligation, applicants for variation of sponsorship approval under r.2.68 are required to have complied with this obligation
during the period of the applicant’s most recent approval as a standard business sponsor in order to have their application for
variation of the terms of their sponsorship approved. See r.2.68(k)(i)(B) as inserted by SLI 2013 No.146 for applications for the
variation of the terms of approval as a sponsor made, but not finally determined, before 1 July 2013 or made on or after 1 July
2013.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Standing
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