DB FOODS PTY LTD (Migration)

[2021] AATA 2137

DB FOODS PTY LTD (Migration) [2021] AATA 2137 (24 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  DB FOODS PTY LTD

CASE NUMBER:  1811126

HOME AFFAIRS REFERENCE(S):          BCC2017/1941208

MEMBER:R. Skaros

DATE:24 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 May 2021 at 12:36pm

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residents Transition Nomination stream – occupation of Pastrycook – evidence of meeting training obligations – actively and lawfully operating a business in Australia – nominee offshore affected by border closures – employed on a full-time basis for at least 2 years – terms and conditions of employment – reasonable to disregard training requirement – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 140, 245, 359
Migration Regulations 1994, rr 1.13, 2.59, 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 Home Affairs on 16 April 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 1 June 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)(f) of the Regulations because the delegate was not satisfied that the applicant had met the requirements relating to their training obligations.

5. Pursuant to s.359(2) of the Act, the applicant was invited to provide current and updated information about the requirements for approval of the nomination in r.5.19(3). The information had to be received by 1 September 2020. On 28 September 2020, the Tribunal affirmed the decision under review on the basis that the applicant had not provided current information to demonstrate that they met the requirements for approval.

6. On 29 September 2020, the applicant’s representative wrote to the Tribunal advising that they had provided the requested information to the Tribunal via the online portal on 1 September 2020. The representative provided a copy of the uploaded documents list and a reference. Further investigations indicated that the documents were received but had not correctly uploaded to the applicant’s case file. The Tribunal considered that the information had been received by the Tribunal within the prescribed period and decided to re-open the matter and consider the evidence accordingly.

7. In considering whether the applicant meets the requirements of r.5.19(3), the Tribunal has had regard to the submissions and documents provided in support of the review, as detailed below, including information that was received after the hearing.

8. Mr Brijesh Patel, the review applicant’s director, appeared before the Tribunal on 11 February 2021 to give evidence and present arguments.  

9. The applicant was represented in relation to the review by its registered migration agent. The representative attended the hearing.

10. 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

11. 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)

12. 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.

13. On the basis of information in the Department’s, file the Tribunal is satisfied that the nomination was made on the approved form, that the prescribed fee has been paid and that the relevant written certification relating to conduct that contravenes s.245AR(1) has been provided as part of the application.

14. Based on the evidence in the Department’s file and the Department’s electronic records, the Tribunal is also satisfied that the application for approval identifies Ms Mital Nikunjkumar Patel as the relevant 457 visa holder and identifies the occupation, Pastrycook: 351112, in relation to the position that is listed in ANZSCO.

15. The Tribunal has had regard to the written statement and oral evidence regarding the tasks undertaken by the nominee in the position, which includes preparing and baking pastry goods. The tasks as described in detail by Mr Patel are consistent with the types of tasks set out in ANZSCO for the occupation of Pastrycook. The Tribunal is also satisfied that the position of Pastrycook is consistent with the nature of the applicant’s business, which is a bakery café (Muffin Break) franchise that provides freshly baked sweet and savoury goods.

16. The Tribunal is satisfied on the evidence before it that the nominated occupation has the same 4-digit occupation unit group code (3511) as the occupation carried by Ms Patel as the holder of a 457 visa.

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

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

18. 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.

19. Departmental records confirm that the applicant is the standard business sponsor who last identified Ms Patel in a nomination made under section 140GB of the Act.

20. The applicant operates a bakery café business (Muffin Break) in Ryde. The Tribunal has received supporting documents, including current business registration, business activity statements, financial reports and bank account records which confirm that the applicant continues to actively and lawfully operate the business.

21. The Tribunal also received oral evidence at a hearing from Mr Patel about the operations of the business, particularly during the Covid-19 period and whether they still require the nominee to work in the business given she has been unable to return to Australia from India due to the border closure. In his evidence, Mr Patel stated that while his business was affected by Covid, he and his wife continued to operate it. He stated that the business did suffer a slump in sales during the lockdown, but had experienced an improvement in sales since the lifting of restrictions. In response to the Tribunal’s queries about the nominee’s employment, Mr Patel explained that the nominee had travelled to India for holiday in February 2020 but got stuck in India due to Australia’s border closure policy. He stated that he and his wife have been working 7 days a week from 4:00am each morning and that they still required the nominee to work in the business as it was becoming difficult for them to manage everything. He gave evidence that the nominee had been working as a full time pastrycook for a long time and that she has been a reliable employee.    

22. On the evidence before it, the Tribunal is satisfied that the applicant continues to actively and lawfully operate a business in Australia.

23. The Tribunal has also had regard to Departmental records and is satisfied that the applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

24. Given the above findings, the requirements in r.5.19(3)(b) are therefore met.

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

25. 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 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.

26. In this case, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 visa on 21 October 2014 to work in the nominated occupation of Pastrycook with the applicant. This nomination was lodged on 1 June 2017, which is more than two years after the nominee was granted the Subclass 457 visa.

27. The Tribunal has had regard to the payroll documents for the nominee, including payslips, PAYG payment summaries and the corresponding tax assessment notices for the financial years between 2015 and 2020. The Tribunal also had the opportunity to take evidence from the director regarding the nominee’s employment with the applicant.

28. On the totality of the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the relevant position for at least 2 years in the 3 years before the nomination was made. Accordingly, the requirements of r.5.19(3)(c)(i), and therefore r.5.19(3)(c), are satisfied.

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

29. 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.

30. The Tribunal has before it a copy of the most recent signed letter of engagement in respect of the nominee, dated 18 February 2021, which states that the applicant will provide permanent full-time employment to the nominee for a period of two years. The agreement indicates that the nominee’s salary will be $57,033 plus superannuation.

31. As noted above, the nominee has been outside Australia for over one year. The Tribunal had concerns about how the applicant continued to operate the business in the absence of the nominee, whether the position had been filled by another person from within Australia and whether the nominee would still be provided with employment for two years if she is granted the Subclass 186 visa and is able to travel to Australia. In responding to the Tribunal’s concerns, Mr Patel explained that during the strict lockdown period business was slow and they did not require too many workers. The Tribunal observed that this was evident from the activity statements which showed a drop in salaries and wages for various quarters in 2020. With the easing of restrictions, the business’ activity statements showed a marked improvement in sales, and Mr Patel explained that he and his wife have been working long hours, 7 days a week, and that it has been difficult for them to operate the business without the nominee who has been employed with them since 2014.

32. Having considered the evidence in its totality, the Tribunal is satisfied at this time that the applicant continues to have a need for a pastrycook and that they will provide the nominee with at least 2 years of full time employment on terms that do not expressly preclude the possibility of an extension.

33. Given the above, the Tribunal finds that the requirement in r.5.19(3)(d) is met.

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

34. 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.

35. The Tribunal has before it the signed letter of engagement dated 18 February 2021 which sets out the terms and conditions of the nominee’s employment. As noted above, the nominee’s base salary will be $57,033 plus superannuation.

36. The Tribunal received submissions from the representative indicating that there was no equivalent Australian employee and that the nominator has relied on the Restaurant Industry Award [MA000119] to determine the applicable terms and conditions of employment. It was submitted that the nominator, in determining the market salary rate for the position, used relevant job advertisements, job-outlook data and PACT from the Fair Work website. It was further noted that as the nominee will be on an annualised salary, the applicable hourly pay rate was multiplied by 1.25 to encompass the various penalty rates and allowances, resulting in an annual base salary of $57,033. The Tribunal is satisfied with the method by which the applicant has calculated the nominee’s proposed earnings, which the Tribunal notes is consistent with market salary data about the salary range for pastrycooks in Sydney.

37. Having considered the evidence provided, the Tribunal is satisfied that the terms and conditions applicable to the position are no less favourable than the terms and conditions that would be provided to an equivalent Australian employee. Accordingly, the requirement in r.5.19(3)(e) is met.

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

38. 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.

39. To satisfy the training requirement, the applicant must demonstrate that they have fulfilled the commitments made relating to meeting the training requirements when they became an approved business sponsor. This requires the applicant to have met either benchmark A or benchmark B for the training of Australian citizens and Australian permanent residents as specified in the relevant instrument. The applicant’s most recent approval as a standard business sponsor was on 17 August 2016 for 5 years. The training requirements applicable for a business that was approved as a standard business sponsor at that time are set out in legislative instrument IMMI 13/030.

40. Benchmark A requires the applicant, in each year of approval, to maintain expenditure to the equivalent of at least 2% of the business’ payroll in payments allocated to an industry training fund.

41. Benchmark B requires the applicant, in each year of approval, to maintain expenditure to the equivalent of at least 1% of the payroll of the business in the provision of training to employees of the business.

42. The Tribunal considers that the relevant periods during which the applicant is required to demonstrate that they have met the requirements relating to training is from 17 August 2016 to 16 August 2017 and 17 August 2017 to 11 August 2018. Legislative amendments which came into effect on 12 August 2018 removed the obligation on approved sponsors to comply with training obligations.

43. It was noted in the decision record that the applicant had indicated a commitment towards maintaining expenditure towards meeting the training requirement in benchmark A and that they had provided evidence of payment of $4200 to TAFE Queensland Industry training fund. However, as the payment was made on 24 June 2016, it could not be relied on by the applicant as the payment was made prior to the most recent period of approval.

44. The delegate also noted that the applicant provided receipts indicating payments for training of staff, however, those payments were also made in 2014 and 2015 and so could not count towards meeting the training requirement in benchmark B.

45. On review, the Tribunal received various invoices and receipts indicating that payments of were made to the Victorian College of Excellence on 5 June 2017 and 15 August 2018. The applicant did not provide evidence of whether the persons trained were Australian citizens or permanent residents and whether they were employees of the business at the time the training was provided. The Tribunal raised this concern with Mr Patel at the hearing. It also raised the concerns about inconsistencies between the claimed payments for training and the financial statements. When asked whether contemporaneous evidence could be obtained regarding the payments, such as evidence of funds transfer or cheque payment, Mr Patel explained that he had made cash deposits into the College’s bank account. Mr Patel explained that it may be difficult for him to obtain the additional evidence regarding the employees and payment to the College. The representative also advised the Tribunal that there was some concern about whether the College was still operating.

46. In discussing the requirements relating to training, the Tribunal expressed its concern that, in the absence of supporting evidence, it may not be able to be satisfied that the applicant had met the requirements relating to training in benchmark B. The applicant indicated that he had previously made payments to TAFE Queensland and is willing to continue to meet benchmark A by making the required payments. The Tribunal explained to the applicant that it had to first consider whether the applicant had fulfilled the commitment made relating to the training requirements in each relevant year, and that if this was not so met that the Tribunal would also consider whether it would be reasonable to disregard those requirements. The applicant was afforded additional time to provide further supporting evidence.

47. Following the hearing, the Tribunal received submissions and supporting documents regarding the training requirements. It was submitted that while the applicant is able to provide evidence of the employment of the persons who undertook training, such as evidence of transfer of wages and PAYG statements, which were provided to the Tribunal, the applicant was unable to obtain evidence regarding the immigration status of one of the employees. It was submitted that the applicant wishes to rely on satisfying the training commitment in benchmark A and that they have made a contribution of $9,800 to TAFE Queensland, which is 2% of the applicant’s payroll for the financial years ended 30 June 2017 and 30 June 2018. The Tribunal received a copy of the receipt issued by TAFE Queensland confirming payment by the applicant on 22 February 2021. The Tribunal has considered the evidence before it as follows.

48. The Tribunal acknowledges the difficulties in obtaining the required records regarding benchmark B as explained by the applicant, however, one of the obligations imposed on the applicant as a standard business sponsor is to keep verifiable records to demonstrate that sponsorship obligations, including those relating to training, have been complied with. For these reasons, the Tribunal is not satisfied that the applicant met the requirements relating to training in benchmark B.

49. The Tribunal has next considered whether the applicant has demonstrated that they fulfilled commitments made relating to meeting the training requirement in benchmark A. As noted by the delegate, the initial payments made to TAFE Queensland towards the 186 benchmark A contributions was during their previous period of approval as a standard business sponsor and not in the most recent period of approval. In relation to the most recent payment made to TAFE Queensland towards benchmark A contributions, the Tribunal notes that while these payments were made during the applicant’s current approval, being the most recent period of approval as a standard business sponsor, these payments were not made in each year of approval, but as a lump after the Tribunal raised concerns about the evidence regarding benchmark B.

1. In considering whether it is reasonable to disregard the requirements regarding training commitments and obligations, the Tribunal has had regard to all the relevant circumstances, including the nominator’s expenditure on training generally and their contributions to TAFE Queensland during their current and previous periods of approval. While the applicant has not technically fulfilled their commitments to meeting the training requirements in each year of their approval as a standard business sponsor, as required up to August 2018, the Tribunal is nevertheless satisfied that the applicant has contributed a total of at least 2% of their payroll for the 2016/2017 and 2017/2018 financial years. In the circumstances, the Tribunal considers it reasonable to disregard the obligations in r.5.19(3)(f)(i).

2. For the above reasons, the Tribunal finds that the applicant satisfies r.5.19(3)(f)(ii). Accordingly, the requirement in r.5.19(3)(f) is met.

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

3. 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. 

4. The Tribunal has had regard to the Department’s file and electronic records and can confirm that they do not contain any information which suggests that there is anything adverse known about the applicant or an associated person.

5. In the circumstances, the Tribunal is satisfied that there is no adverse information known to Immigration about the nominator or a person associated with the nominator. Accordingly, the requirement in r.5.19(3)(g) is met.

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

6. 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.

7. It was submitted that the applicant has not breached any workplace relations laws and there is no evidence before the Tribunal which suggests that the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff. Accordingly, the Tribunal considers that the requirement in r.5.19(3)(h) is met.

   Conclusion

8. 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

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

   R. Skaros
   Senior 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.