DREAM HAVEN INVESTMENTS PTY LTD ATF SILBERMAN CHILDRENS TRUST (Migration)

[2019] AATA 6448

DREAM HAVEN INVESTMENTS PTY LTD ATF SILBERMAN CHILDRENS TRUST (Migration) [2019] AATA 6448 (13 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  DREAM HAVEN INVESTMENTS PTY LTD ATF SILBERMAN CHILDRENS TRUST

CASE NUMBER:  1717884

DIBP REFERENCE(S):  BCC2016/3415641

MEMBER:Susan Reece Jones

DATE:13 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 December 2019 at 8:03am

CATCHWORDS
MIGRATION – nomination refusal– Pastrycook – Temporary Residence Transition nomination stream – approved standard business sponsor –financial capacity of the business to employ the nominee for at least 2 years full time –no adverse information known to Immigration – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR, 359
Migration Regulations 1994, rr 1.13, 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 27 July 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.The applicant, DREAM HAVEN INVESTMENTS PTY LTD ATF THE SILBERMAN CHILDREN’S TRUST, applied for approval on 14 October 2016.

3.The requirements for the approval of the nomination of a position (Pastrycook, ANZSCO code 351112) 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).

4.In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

5.The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (3) (d) of the Regulations because the applicant did not demonstrate that the appointment will provide the employee with full-time employment for at least the next two years. The delegate noted that the applicant’s business employs six Australian Citizens and two foreign employees (temporary business visa holders) in its business operations.

6.On 25 March 2017, the Department requested that the applicant provide additional evidence to demonstrate the business was lawfully operating in Australia, meeting the training for a business/organisation that had been operating for at least 12 months and evidence of 2 years full-time employment on a 457 visa, in a 3-year period preceding the nomination. The applicant provided the Department with:

• Nominee bank statement
• Training Receipts for 2014 and 2015
• 2016 Financials
• BAS for January to December 2016
• Bank statements for February 2016 to February 2017.

7.In considering the evidence and Regulation 5.19(3) (d), the delegate assessed the financial documents noting that there was limited verifiable evidence provided sufficient to demonstrate the financial capacity of the applicant. The applicant had submitted that the nominee would be employed on a full-time basis in the position for at least two years at a base salary of $54,000 per year. Assessment of the limited financial material provided was such that the total wages expenditure indicated on the nomination application, meant that the applicant did not demonstrate that it had the financial capacity to be able to pay the full-time salary for the nominated position for at least the next 2 years.

8.The Tribunal received a review application on 14 August 2017. It was signed on behalf of the applicant by director, Mrs Rosalie Silberman, and was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration, Mr Srinivasan Thotta of Australia Fair Migration Services Pty Ltd as its representative and authorised recipient for correspondence.

9.On 22 August 2019, the Tribunal wrote to Mrs Silberman via the agent, pursuant to s.359(2), to invite her to provide updated and current information demonstrating that the applicant met all of the criteria in r.5.19(3). The Tribunal provided examples of the kinds of information that would assist it to assess the criteria in r.5.19(3) and noted that all of the criteria had to be met in order for the Tribunal to set aside the refusal decision and substitute a decision to approve the nomination.

10.   On 4 September 2019, the applicant’s agent provided the following material:

Financials

• Trust Deed Business Activity Statements 2018, 2019

• ASIC

• Letter from Mr Joseph Kalb of Accountants, Lowe Lipmann

• Financial Statements 2016, 2018, 2019

• Organisation Chart

• Passport Identification for other (Australian) employee

• PAYG Statements for all other employees for 2014, 2015, 2016, 2017, 2018

• Lease Agreement for the applicant’s business

Employee

• Employment contract 2016

• PAYG 2018, 2019

• Payroll Statements

• Position Description

Training Benchmarks  

• Training Benchmarks payments 2014, 2015, 2016, 2017

• VACTS Training Plans

1. The applicant’s agent submitted to the Tribunal that the nominee was granted a subclass 457 visa on 22 July 2014 and had been engaged as a Pastrycook since July 2014. The nominee has been paid an annual salary of $54,000 (plus superannuation) and at the time of application in October 2016, had been employed by the applicant for more than 2 years. The applicant operates a small but growing business using a brand known as Vicki’s Bickies (specialising in gingerbread) and employs a number of Bakers and Baking assistants who are both Australian citizens and also employed under the Employer Nomination Temporary Residence Transition Scheme.  

2. The applicant appeared before the Tribunal on 25 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Silberman, Director and the nominee, Mrs Nuntanben PATEL.

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

4. Following the hearing, the applicant submitted further material for the Tribunal’s consideration including

• ABN registration

• Business financials 2015, 2016, 2017, 2018

• Business Tax Returns 2015, 2016, 2017, 2018

• Lodged Business Activity Statements from 2016- 2019

• Business Bank Statements from 2016-2019

• PAYG Statements 2015-2019

• Payslips

• Business bank statements showing salary payments to nominee

• Updated Organisation chart

• PAYG summaries for all Employees

• Letter from applicant regarding the expansion of the business

• Letter from Accountant  as to the financial viability of the applicant’s business 

1. 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

1. 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)

1. 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.

2. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

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

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

1. 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.

2. The Department’s records indicate that Dream Haven Investments Pty Ltd ATF the Silberman Children’s Trust, was approved as a standard business sponsor between 31 March 2014 until 31 March 2017.  The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mrs Nuntanben Patel, and nominated her for a subclass 457 visa. The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.

3. In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from the financial documents provided from 2015-2019 including ABN registration, Business financials and Tax Returns and Lodged Business Activity Statements and Business Bank Statements show that the applicant is actively and lawfully operating a business in Australia.

4. Given the above, the requirement in r.5.19(3)(b) is met.

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

1. 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.

2. The Tribunal is satisfied on the evidence before it that:

   ·  the nomination was made on 14 October 2016 for the position of Pastrycook ANZSCO 351112;

   ·  the nominee was initially employed by the applicant on while the holder of a subclass 457 visa (granted on 22 July 2014  and valid until 22 July  2018); and

   ·  she had therefore worked for the applicant in the nominated position since July 2014, which is more than 2 years prior to the nomination application being lodged.

3. 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)

1. 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.

2. An assessment of the considerable additional financial material provided to the Tribunal shows that the applicant’s business, whilst still categorised as small, continues to grow and invest in its future.

3. The applicant also advised the Tribunal at hearing that it continues to invest and expand, which she said could be demonstrated by a commitment to an expanded site for the bakery operations. In support, the applicant provided the Tribunal with a copy of the Lease agreement, which commenced on 1 September 2019 for a period of 3 years (with a possibility of 2 renewals of 3 years each).

4. In addition, the applicant provided documentation to show the employment status of each employee since 2014 and provided recent (2018 and 2019) PAYG statements for all of its employees.

2018	2017	2016	2015	2014
Total income	448,579	394,975	419,985	427,971	366,796
Cost of goods sold	119,269	144,932	131,947	145,531	138,458
Gross profit	329,310	250,043	288,038	282,440	228,338
Wages	157,215	155,712	185,643	145,098	117,054

1. At hearing, the applicant told the Tribunal that she had been operating the business now for approximately 10 years. About 7 years ago, the applicant established Vicki’s Bickies. The applicant noted to the Tribunal that the nominee has been instrumental in assisting the growth and continuing success of the business. The applicant advised the Tribunal that the nominee is now considered the “right-hand’ to Mrs Silberman. The nominee in giving evidence to the Tribunal confirmed that she works very closely with the applicant. In her capacity as Pastrycook, she cuts, cooks and decorates the gingerbread, which is the key product for which the applicant’s business is renowned.

2. The nominee has also provided information that indicates that the applicant company remains financially capable of continuing to employ the nominee in her full time position on a salary of $54,000 plus superannuation, for the next 2 years. Based on the documentary evidence provided on behalf of the applicant, including the applicant’s contract of employment dated 11 August 2016 (which continues to be current in its essential terms), PAYG summary statements, and the applicant’s financial information up to 2019, the nominee’s Bank Statements showing receipt of payments, letter from Accountant’s  Lowe Lipmann, the Tribunal is satisfied that the nominee will continue to be employed on a full-time basis for at least 2 years, and that the terms and conditions of his employment do not expressly exclude the possibility of extending his period of employment.

3. 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)

1. 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.

2. The Tribunal accepts evidence of the organisational chart provided to the Tribunal in October 2019 that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee.

3. The Tribunal therefore needs to be satisfied that the terms and conditions of employment 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.

4. The nominee’s contract of employment for the nominated position is dated 11 August 2016 and provided that the nominee’s salary is $54,000 per year plus superannuation.  At hearing, the nominee confirmed that this contract is ongoing.

5. PAYG payment summaries for the  nominee show as follows:

2015	2016	2017	2018	2019
PAYG summary $	44,980	53,996	49,842⃰	53,996	53,996

⃰2017:  Adjusted to $49,842 due to extended unpaid leave taken by the nominee. On an annualised basis equates to obligated salary.

1. The Tribunal has consulted a range of sources of information, including:

   ·the Payscale website (accessed 7 December 2019) indicates that a Pastrycook between $35,000  and $55,000.

   ·the Government’s Job Outlook website (accessed  7 December 2019) which indicates that the average weekly earnings before tax for a Pastrycook is $996  before tax (or $51, 792 before tax annually) refer :   for various full time Pastrycook positions in all of Melbourne listed on Seek.com.au as at  7 December 2019 where a salary range is given to be $40,000 - $75,000.

2. The Tribunal finds that the nominee’s salary is within the range of the above listed salary ranges on the basis of the size, scope and nature of the applicant’s.

3. In this case, the Tribunal is satisfied that the applicant company is a small business and operating in a niche area (gingerbread).  Under these circumstances, and on balance, the Tribunal accepts that the nominee’s salary would be no less favourable than that which would be offered to an Australian employee for undertaking the same work in the same location.

4. The Tribunal is further satisfied that the contract of employment dated 11 August 2016   for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES) and that the Agreement remains current.

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

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

1. 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.

2. The Tribunal notes that the applicant’s approval as a standard business was from   31 March 2014 for 3 years until 31 March 2017. Thus the applicant is required to demonstrate they have fulfilled either Training Benchmark A or B for each anniversary year of the sponsorship agreement.

3. The Tribunal has assessed the period 31 March 2017 to 31 March 2017, on a financial year basis up to the time of its decision.  The training requirements applicable for an established business with approval as a standard business sponsor in that period in the applicable period were set out in written instrument IMMI 13/030 as follows:

   A) recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or

   B) 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.

4. IMMI 13/030 provided that expenditure that can count towards Training Benchmark B 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:

   ·the learning outcomes of the employee at each stage;

   ·how the progress of the employee will be monitored and assessed;

   ·how the program will provide additional and enhanced skills;

   ·the use of qualified trainers to develop the program and set assessments; and

   ·the number of people participating and their skill/occupation.

5. However, it does not include expenditure on training that is:

   • delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’
   • confined to only one or a few aspects of the business’s broader operations, unless the training is in the primary business activity
   • only undertaken by persons who are not Australian citizens or permanent residents
   • only undertaken by persons who are principals in the business or their family members
   • only relating to a very low skill level having regard to the characteristic and size of the business.

1. The applicant provided documentary evidence to satisfy Training Benchmark B indicating as follows:

2017	2016	2015	2014
Wages	155,712	185,643	145,098	117,054
Super	14,591	17,656	13,559	10,829
Total Payroll	170,303	203,299	158,657	127,883
Training Benchmark B 1%	1703	2032	1586	1128
Payments made	3,388	1,985	1,380	1,270⃰
Evidence provided	VACTS	Empower Skills for Professional Development Services	Empower Skills for Professional Development Services	McKkr’s

⃰Paid prior to sponsorship approval 9 January 2014
⃰Training completed by Australian Citizens and Permanent residents

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

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

1. 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.

2. The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

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

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

1. 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.

2. There is nothing in the Department’s records or otherwise to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of Victoria relating to workplace relations.

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

4. 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

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

S. Jones
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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.