EMPIRE HOSTELLING PTY LTD (Migration)

EMPIRE HOSTELLING PTY LTD (Migration) [2019] AATA 529 (13 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  EMPIRE HOSTELLING PTY LTD
CASE NUMBER:  1708788
DIBP REFERENCE(S):  BCC2016/3443308
MEMBER:R. Skaros
DATE:13 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 13 March 2019 at 10:38am

CATCHWORDS
MIGRATION – nomination – subclass 457 – Temporary Residence Transition nomination stream – terms and conditions of employment – Accommodation and Hospitality Managers – no equivalent Australian employees – annual salary within the range for position – decision under review set aside
LEGISLATION
Migration Act 1958, ss 245AR(1), 140GB
Migration Regulations 1994, Schedule 2, rr 1.20DA, 2.59(h), 2.68(i), 5.19(3)(e)

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 Immigration on 5 April 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).
The applicant applied for approval on 17 October 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
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)(e) of the Regulations because there was no evidence to indicate that the proposed terms and conditions of employment for the nominee was equivalent to the market salary rate.
The applicant’s Director, Mr Peter Hansen, appeared before the Tribunal on 5 March 2019 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from the nominee.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the hearing.
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.
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.
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.
The Tribunal is also satisfied on the evidence in the Department’s file that the application for approval identifies Ms Patricia Martins Bordon as the relevant 457 visa holder and identified the occupation (Accommodation and Hospitality Managers nec – 141999), in relation to the position, that is listed in ANZSCO. The Tribunal is also satisfied, on the basis of evidence set out further below, the position has the same 4-digit occupation unit group code (1419) carried out by the nominee as the holder of 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 is the standard business sponsor who last identified Ms Patricia Martins Bordon in a nomination made under section 140GB of the Act.
The Tribunal has received current information evidencing that the applicant is actively and lawfully operating a business in Australia, including an ASIC current and historical search, recent business activity statements, 2017 financial statements and an organisation chart. The Tribunal also received oral evidence from Mr Peter Hansen at the hearing regarding the operations of the applicant’s business.
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).
Given the above, 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, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 visa on 25 July 2014 to work in the nominated occupation of Accommodation and Hospitality Managers nec. This nomination application was lodged on 17 October 2016.
The Tribunal has had regard to payroll documents for the nominee, including the PAYG summaries for the 2015, 2016, 2017 and 2018 financial years and payroll documents for the 2016 and 2017 financial years. The Tribunal has also considered the supporting material, including sample emails evidencing the types of tasks carried out by the nominee in the position. The Tribunal also received oral evidence from Mr Hansen regarding the nature of the nominee’s position and is satisfied on the basis of that evidence that the position carried out by the nominee included organising and managing the day to day operations of the backpacker and serviced apartment accommodation business located in Manly.
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. The requirements of r.5.19(3)(c)(i) are therefore satisfied.
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 Tribunal has before it a copy of the signed employment agreement in respect of the nominee, dated 25 June 2014, and a letter, dated 30 April 2017, which sets out the details of the current terms and conditions of the employment. It states that the applicant will provide permanent full time employment for the nominee for a period of 2 years. The letter indicates that the nominee’s base salary will be $57,000 plus superannuation.
The Tribunal has also had regard to the applicant’s financial capacity to employ the nominee and is satisfied, on the basis of the applicant’s financial records and its ability to maintain the nominee’s employment to date, that the applicant can support the employment for the nominee for a period of at least 2 years.
Given the above, the Tribunal is satisfied 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.
It follows that 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 applicant has provided the Tribunal with an organisational chart indicating that there are no equivalent Australian employees employed in the same position at the same location. The applicant submitted relevant market rate information, including Payscale and similar job vacancies. Considering the material provided, the Tribunal is satisfied that the nominee’s annual salary is within the range offered to Accommodation and Hospitality Managers.
Given the above, 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.
The applicant was most recently approved as a standard business sponsor on 25 July 2014 for three years. The representative submitted that the applicant undertook to meet benchmark A and that they have fulfilled that commitment. In support of that submission, the applicant provided the following receipts indicating payments to TAFE Sydney Institute: $3,500 on 27 June 2014, $7,200 on 13 October 2016 and $5,250 on 20 December 2018.
The financial reports and payroll documents before the Tribunal indicate that the nominator’s payroll is about $230,000 in each relevant year. Accordingly, to fulfil the commitment made relating to training, the applicant has to demonstrate that they have made a contribution of at least 2% ($4,600) to a relevant industry-training fund in each year they were approved and employed a Subclass 457 visa holder. The Tribunal notes that the first payment made was prior to the applicant becoming an approved standard business sponsor. The second payment made was two years after the applicant was approved as a standard business sponsor and the third payment was made more than 12 months after the applicant ceased to be a standard business sponsor.
As the contributions were not made in each year of the applicant’s approval as a standard business sponsor, the Tribunal formed the view that the applicant had not fulfilled the commitment they made relating to meeting the training requirement. When this was discussed with Mr Hansen and hearing, he stated that after they became approved as a sponsor, their intention was to satisfy benchmark B by spending 1% of the business’ payroll on training Australian employees. He stated that they employed a number of Australians, however, those employees did not remain with the business long enough to receive training. He stated that the requirement regarding training was overlooked by him for a period of time and when they realised that they could not meet benchmark B, they decided to make the 2% contribution to TAFE.
It was submitted that despite not making the required payments in each fiscal year of its approval as a standard business sponsor, the applicant has nevertheless paid the required total amount of at least 2% of its payroll during the period it was approved as a sponsor. Mr Hansen also gave evidence that the nominee had been the Accommodation Manager since 2014 and has become integral to managing the day to day operations of the business. He stated that they would experience difficulties replacing her as the hospitality/accommodation industry has a high turnover of staff and it would be challenging to find someone with the same level of experience.
Having considered the evidence overall, the Tribunal is satisfied with that the applicant has made some efforts to maintain the commitment made relating to training during the period they were approved as a standard business sponsor. Even though two of the payments made were approximately one year after they should have been made, the Tribunal accepts that in aggregate, the amounts were approximately 2% of the applicant’s total payroll for the relevant period of its approval as a standard business sponsor. The Tribunal also gives some favourable weight to the submissions made regarding the nominee’s role and the difficulties the business would experience if they had to replace her. In considering the evidence overall, the Tribunal is satisfied that the requirements relating to training commitments and the sponsorship obligations relating to those requirements, can reasonably be disregarded in the circumstances of this particular case.
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 evidence before the Tribunal to indicate that there is adverse information known to Immigration about the applicant 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 evidence before the Tribunal to indicate 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 requirement in r.5.19(3)(h) is met.
Conclusion
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.
R. Skaros
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.

[2019] AATA 529

13 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies