De Silva Kapila (Migration)

De Silva Kapila (Migration) [2021] AATA 564 (29 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  De Silva Kapila
CASE NUMBER:  1814113
HOME AFFAIRS REFERENCE(S):          BCC2017/1972141
MEMBER:Mary Sheargold
DATE:29 January 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 29 January 2021 at 2:07pm
CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition Nomination stream – occupation of Graphics Pre-Press Trades Worker – financial capacity to employ the nominee for at least 2 years – updated financial information – previous and proposed employment of the nominee – terms and conditions of employment – reasonable to disregard training requirements – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245, 360
Migration Regulations 1994, Schedule 2 cl 457.223; rr 1.13, 2.87, 5.19
STATEMENT 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 2 May 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 3 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).
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)(d)(i) of the Regulations because it did not demonstrate sufficient financial capacity to pay the full-time salary of the nominee, and therefore comply with the requirement to provide the nominee with at least 2 years of full-time employment.
The applicant was represented in relation to the review by his 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.
On 9 November 2020, the Tribunal wrote to the applicant inviting the applicant to provide information that demonstrated that the business meets all of the requirements of the criteria in r.5.19(3) of the Regulations at the time of the Tribunal’s decision. A copy of r.5.19(3) was annexed to the letter. A response to the request for information was due by 23 November 2020. On 12 November 2020, the applicant’s representative wrote to the Tribunal requesting a 2 week extension to the 23 November 2020 response date. The Tribunal granted an extension of time to respond to the letter, to 7 December 2020.
On 3 December 2020, the applicant provided the following documents to the Tribunal:
·written submissions from the applicant’s representative dated 3 December 2020 in support of the application;
·an extract from the Australian Business Register dated 9 April 2020 showing registration of an Australian Business Number (ABN) to the applicant as an individual/sole trader;
·an extract from the Australian Securities and Investments Commission (ASIC) database showing registration of the business name ‘groovy graphics and signs’ to the applicant from 5 March 2018;
·copies of profit and loss statements for the applicant’s business for the financial years ending on 30 June in each of 2017-2020 inclusive;
·copies of PAYG summaries for the nominee for the financial years ending on 30 June in each of 2013 to 2020 inclusive;
·copies of notices of assessment for the nominee from the Australian Taxation Office for the financial years ending on 30 June in each of 2017 to 2020 inclusive;
·an organisational chart for the applicant’s business;
·a copy of the employment agreement between the applicant and the nominee dated 26 May 2017;
·evidence regarding the nominee’s recent period of maternity leave from 1 July 2020 to 31 December 2020;
·a letter from the applicant confirming that the nominee has worked for his business since 2011;
·an extract from the ANZSCO dictionary for the unit group 3922 Graphic Pre-Press Trades Workers;
·copies of Business Activity Statements (BAS) for each quarter from October 2018 to September 2020;
·copies of income tax returns for the applicant for the financial years ending on 30 June 2019 and 30 June 2020;
·a letter from the applicant’s accountant dated 30 July 2020;
·evidence of correspondence between the applicant and nominee regarding tasks for the nominee to complete as part of her employment, including samples of work prepared by the nominee;
·a copy of the divorce order for the applicant and his ex-wife dated 31 October 2018;
·evidence of payment of invoices for counselling services for the applicant in early 2019;
·copies of letters and receipts from Curtin University confirming payments made by the applicant in purported fulfilment of his obligations under Training Benchmark A during the period of his most recent standard business sponsorship approval;
·a copy of the notification of the applicant’s approval as a standard business sponsor from 19 June 2013 to 19 June 2016;
·a copy of the visa grant notification for the nominee’s Subclass 457 visa dated 26 May 2014;
·a statement from the nominee regarding 3 instances of extended, unpaid leave relating to care for her son overseas in July 2017, September 2018, and September 2019; and
·copies of the nominee’s passport showing entry to and exit from India during the periods referred to in her statement.
On 15 January 2021, the Tribunal wrote to the applicant seeking a current employment contract for the nominee. On 20 January 2021, the applicant’s representative provided a copy of the nominee’s current employment contract, dated 19 January 2021.
Having considered all of the documentation submitted by the applicant, pursuant to s.360(2)(a) of the Act, the Tribunal has determined that it is able to decide the review in the applicant’s favour on the basis of the material now before it.
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 Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form. The letter from the Department to the applicant dated 3 June 2017 indicates that the nomination application fee has been paid.
The application for approval identifies Ms Dipal Ramnikbhai Thumar, the nominee who, according to Departmental records, held a Subclass 457 visa from 26 May 2014 that was granted on the basis of satisfying cl.457.223(4) of Schedule 2 to the Regulations.
The application for approval identifies the occupation of Graphics Pre-Press Trades Worker, ANZSCO 392211. Based on the employment documents for the nominee, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by her as the holder of a Subclass 457 visa. Accordingly, the Tribunal is satisfied that this occupation carries the same 4 digit code (3922) as the occupation carried out by the nominee whilst she held the Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) is 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.
Departmental records confirm that the nominator was the standard business sponsor who last identified Ms Thumar in a nomination made under s.140GB of the Act. The nominator 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).
The applicant has provided the Tribunal with evidence of registration of his ABN and business name, BAS, company tax returns, profit and loss statements, work samples, and other information about the business’s activities.
Based on the material before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia. Therefore, the requirement in r.5.19(3)(b) is 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 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.
In this case, the relevant provision is set out in r.5.19(3)(c)(i). The nomination application was made on 3 June 2017.
The nominee was granted a Subclass 457 visa in the nominated occupation of Graphics Pre-Press Trades Worker on 26 May 2014, sponsored by the applicant. The applicant was most recently approved as a standard business sponsor from 19 June 2013 to 19 June 2016.
The applicant has provided evidence of PAYG for the nominee for each financial year ending on 30 June from 2013 to 2020 inclusive, and notices of assessment from the ATO for the nominee for the financial years ending on 30 June in 2017, 2018, 2019, and 2020. The Tribunal has considered this evidence along with the employment contracts provided in relation to the nominee, the letter from the applicant’s director stating the nominee did not take any unpaid leave in the 2 years prior to this application being made, and the submissions made by the representative. The Tribunal accepts this evidence and the submissions, noting that the nominee has been employed on a full-time basis in the position since May 2014 (albeit with a period of maternity leave from July 2020 to December 2020), and that the application for approval was made after the nominee had been employed in the position for over 2 years.
Based on all the evidence before it, the Tribunal is satisfied that the nominee worked in the nominated position for at least 2 of the 3 years immediately before the application was made. Therefore, the Tribunal finds that the requirement in r.5.19(3)(c)(i) is met.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
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.
The delegate refused to approve the nomination, finding there was not sufficient evidence to demonstrate that the applicant had the capacity to employ the nominee on a full-time basis for at least 2 years. The Tribunal notes the effluxion of time since the delegate’s decision, and has taken into account the updated employment contract and updated information regarding the business’s financial position in making its findings.
The applicant has provided the Tribunal with a copy of the employment agreement between the applicant and the nominee dated 19 January 2021 (the employment contract). Clause 1 of the employment contract stated that the nominee’s employment commenced on 26 May 2014 and is ongoing. Clause 3 states that the term of the contract offered “shall be full time for a minimum of 2 years which does not exclude the possibility of further extensions.” Therefore, the Tribunal is satisfied that the terms and conditions of employment do not expressly exclude the possibility of extending the period of employment beyond the initial minimum 2 year term.
Clause 6.1 of the employment contract states that the nominee’s gross salary is $54,000 per annum, which the Tribunal notes the applicant has been paying (with the exception of periods of unpaid leave after this application was lodged with the Department) since May 2014. The Tribunal has considered the profit and loss statements for the applicant’s business for the past 4 financial years, the BAS for the first 2 quarters of the current financial year, and the representative’s submissions.
The Tribunal notes the applicant’s business did record a small loss in the 2018-19 financial year, but notes the representative’s submissions and supporting documentation regarding the applicant’s divorce and its impact on him in terms of managing his business effectively at that time. The Tribunal notes that the business was profitable in the 2019-20 financial year, despite the impact of the Covid-19 pandemic, and notes that it recorded steady sales in the first 2 quarters of the current financial year.
Having considered all the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to continue paying the nominee’s full-time salary for at least 2 years.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
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 considered the employment contract and notes that the nominee’s salary is set at $54,000 per annum plus superannuation. The Tribunal has considered information available on PayScale relating to the average salary for a Prepress Worker in Australia, and notes the average salary is $55,000 per annum. The Tribunal notes the nominee is paid slightly below this average, but also notes the applicant is a sole trader with a relatively small operation. On balance, the Tribunal considers that the nominee’s salary of $54,000 per annum is no less favourable than the salary that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has considered the terms of the employment contract and finds that the provisions with respect to leave and notice are in line with the minimum standards set out in the National Employment Standards.
Based on all the evidence before it, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(3)(e) is 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.
Regulation 5.19(3)(f)(i) requires the applicant to demonstrate that he has fulfilled the commitments made as a standard business sponsor in relation to training. The Tribunal notes that at the time this application was made, these obligations were set out in reg 2.87B(2) of the Regulations. The obligations under reg 2.87B(2) were to comply with requirements relating to training as set out in an instrument in writing for each 12 month period of its sponsorship approval. Those requirements are set out in Schedule A to IMMI 13/030 – Specification of Training Benchmarks and Training Requirements.
In summary, the applicant must demonstrate that he has made recent expenditure by the business to the equivalent of 2% of the payroll of the business in payments allocated to an industry training fund that operates in the same industry as the business (Training Benchmark A), or recent expenditure by the business to the equivalent of at least 1% of the payroll of the business in the provision of training to employees of the business (Training Benchmark B), and the applicant must demonstrate that it has met one or other of these training benchmarks for each year of its most recent sponsorship approval. The Tribunal notes that the applicant seeks to demonstrate that he has met the requirements in Training Benchmark A.
The applicant has provided the Tribunal with evidence of payments made to Curtin University between 13 March 2013 and 1 February 2019. The Tribunal notes that the applicant was approved as a standard business sponsor from 19 June 2013 to 19 June 2016. The only payment made during the period of approval as a standard business sponsor was a payment of $355 on 29 September 2014. As such, the Tribunal finds that the applicant cannot meet the requirements of r.5.19(3)(f)(i), and the Tribunal will therefore consider whether it is reasonable to disregard the obligations in relation to training in the circumstances.
The Tribunal notes that whilst it is not bound by Departmental policy, the PAM3 guidelines set out the circumstances in which the requirements of r.5.19(3)(f)(i) may be disregarded. These include circumstances where the applicant can demonstrate that it has an aggregate expenditure on training over the term of its most recently approved sponsorship period commensurate with the total training commitment for that period, and this may be assessed at the time of decision.
The Tribunal has considered the evidence before it and makes the following findings:
·in the first year of its most recent standard business sponsorship approval, 19 June 2013 to 18 June 2014, the applicant relies on its total payroll expenditure figure for the financial year ending on 30 June 2014, being $16,256.00. The Tribunal notes that the applicant only had a sponsored worker, the nominee, for approximately 6% of the first year of its most recent standard business sponsorship approval, and notes that on this basis, the total payroll expenditure is pro-rated for a value of $975.36;
·in the second year of its most recent standard business sponsorship approval, 19 June 2014 to 18 June 2015, the applicant relies on its total payroll expenditure figure for the financial year ending on 30 June 2015, being $54,003.00; and
·in the third year of its most recent standard business sponsorship approval, 19 June 2015 to 19 June 2016, the applicant relies on its total payroll expenditure figure for the financial year ending on 30 June 2016, being $54,004.00.

The Tribunal has combined these 3 figures to find a total payroll expenditure of $108,982.36 during the period of the applicant’s most recent standard business sponsorship (whilst it was sponsoring a temporary visa holder). The Tribunal notes that 2% of this figure is $2,179.65.
The Tribunal notes that the total value of the 6 donations made to Curtin University between March 2013 and February 2019 in purported fulfilment of the applicant’s obligations under Training Benchmark A for its most recent standard business sponsorship approval period, as evidenced by receipts and letters from Curtin University to the applicant, is $4,845.00. The Tribunal finds that this amount exceeds 2% of the applicant’s total payroll expenditure during the period of the applicant’s most recent standard business sponsorship (whilst it was sponsoring a temporary visa holder).
Based on all the evidence before it, the Tribunal is satisfied that it is reasonable to disregard the requirements of r.5.19(f)(i). 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 rr.1.13A and 1.13B.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws. The Tribunal notes that the employment contract provides the minimum terms and conditions of employment set out in workplace relations legislation.
Accordingly, the requirement in r.5.19(3)(h) is met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mary Sheargold
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.

[2021] AATA 564

29 January 2021

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