EUGENE CHO PTY LTD (Migration)

[2019] AATA 5615

EUGENE CHO PTY LTD (Migration) [2019] AATA 5615 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  EUGENE CHO PTY LTD

CASE NUMBER:  1703650

DIBP REFERENCE(S):  BCC2016/2154701

MEMBER:Susan Hoffman

DATE:3 December 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 03 December 2019 at 9:49am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Cook – training commitments and obligations – Training Benchmarks A and B – compliant application – s 245AR(1) certification – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 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 9 February 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 applied for approval on 24 June 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).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) as the delegate was not satisfied that the Training Benchmarks A and B had been met.

5.    The applicant provided various submissions prior to the Tribunal’s hearing which was held on 25 October 2019. Ms Cho appeared to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from Mr Wihendra, the nominee.

6.    A second hearing was held on 26 November 2019, also attended by Ms Cho and Mr Wihendra.   

7.    The applicant was represented in relation to the review by its registered migration agent who attended both hearings.

8.    For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

1. The applicant operates the Yuki Japanese Restaurant. The applicant sponsored the nominee, Mr I Nengah Sutama Adi Wihendra, for his Subclass 457 visa. Departmental records confirm Mr Wihendra held a Subclass 457 visa at the time of the nomination application.

2. When making the application the applicant provided information confirming the business is lawfully operating including Australian Securities and Investment Commission records of the registration of Yuki Japanese Restaurant as the business name associated with Eugene Cho Pty Ltd. There was also a profit and loss statement for 2015/16 financial year and an organisational chart for the restaurant.

3. The documents in the departmental file include an employment contract made between the applicant and Mr Wihendra, dated 18 June 2016, which was to run for two years after the grant of a visa. According to the contract Mr Wihendra’s base salary was $54,400. He was employed as a cook (ANZSCO code 351411).

4. With regard to Training Benchmark A, the delegate recorded that the applicant had not provided any evidence to demonstrate recent expenditure amounting to at least 2% of their payroll on the provision of training Australian citizens and/or Australian permanent residents, (including any apprentices and/or trainees) to an industry training fund. The application form stated that no contributions were made to an industry training fund in the previous 12 months.

5. With regard to Training Benchmark B, the application form recorded that their payroll expenditure for the previous 12 months had been $263,776 and that the business spent $2,700 on the provision of training in that period to persons who are Australian citizens or permanent residents. However the applicant did not provide any details or quantifiable evidence to demonstrate that they had met their commitments with regard to the training requirements.

6. The delegate was not satisfied that the applicant met the requirements of Training Benchmarks A and B, and found that the applicant had not met them.

7. The applicant submitted a substantial amount of documentary evidence to the Tribunal to do with training, in support of the application.

8. At the first hearing, the Tribunal queried what appeared to be discrepancies between BAS statements and profit and loss statements, with regard to gross wages. The applicant’s accountant, IFT Accountant, provided a satisfactory explanation in a letter dated 13 November 2019, submitted to the Tribunal on 20 November 2019.

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. The Tribunal was satisfied that the application was made on the appropriate form and accompanied by the prescribed fee. However it did not include the s.245AR(1) certification.

3. Generally application forms include a question to do with s.245AR(1) certification. The form used to lodge the application did not include a question about s.245AR(1) certification.

4. The Department wrote to the applicant via email on the date the application was made, advising that the applicant was required to complete and sign a mandatory certification form in relation to subsection 245 AR(1). A blank certification form was attached to the Department’s email. There is no record in the departmental file provided to the Tribunal that the certification form was completed and returned to the Department, or that the applicant had addressed the requirement to provide written certification relating to conduct that contravenes s.245AR(1), in another way.

5. The Tribunal contacted the Department to ascertain whether or not the certification form had been duly completed. They advised on 29 October 2019 (after the first hearing) that the applicant did not provide this at the time of lodgement or during the processing of the application.

6. The Tribunal raised this issue at the first hearing under s. 359AA, and advised the applicant of the requirement to provide this certificate at the time of application and if that had not been done, that might lead the Tribunal to affirm the decision under review.

7. The Tribunal informed the applicant that it was awaiting a response from the Department in case the certification had been provided to the Department but was not on the file.

8. At the first hearing, it was agreed that the applicant had two weeks from the date of hearing to make a further written submission. The applicant requested, and the Tribunal agreed, that if the Department’s response regarding the S.245AR(1) certification was adverse to the applicant, there would be further opportunity to make submissions in person before the Tribunal.

9. After the Department’s response was received by the Tribunal, this was conveyed to the applicant before the second hearing. As recorded above, the response was that there was no s.245AR(1) certification on file.

10. At both hearings the representative submitted (consistent with her written submissions) that at the time of application the applicant had a different migration agent, and if something had been missed, that was the fault of the representative, not the applicant, and asked for discretion to be exercised, as there was a compelling reason.

11. The representative submitted that the applicant was not aware that the certification was required at the time of application, and her migration agent at the time did not follow up on the email sent by the Department.

12. The representative had previously obtained a copy of the departmental file and was familiar with the application form and the email sent by the Department on the day the application was made. She and Ms Cho confirmed that to the best of their knowledge the s.245AR(1) certification had not been done at the time of application. 

13. The representative also pointed out that the delegate’s decision made no mention of the s.245AR(1) certification and only referred to there being insufficient evidence as to the training requirements.

14. The applicant said it was a mistake by the previous migration agent, a person she relied on. She said that she follows the rules and did everything correctly, as did Mr Wihendra. She explained how integral he was to the business, and that he has a wife and three children.

15. Mr Wihendra said that his family were all here, and had been in Australia for some years, with his youngest about to start school. He asked that the Tribunal give him and his family a chance.

16. The applicant submitted the s.245AR(1) certification on 20 November 2019 and further written submissions were made on 27 November 2019, after the second hearing.

17. Ms Cho, in her written submission, set out how important it was to her to be able to sponsor Mr Wihendra and how much she relies on him in her business. She described how she has always tried her best to comply with all rules and regulations, with regard to migration and other matters, and has always sought professional advice for matters outside her area of expertise, such as for example, taxation and migration matters.

18. Ms Cho wrote that she now understands the relevance of the sponsorship certification to the application. She declared that she has never violated s. 245AR(1). She reiterated that the delegate’s decision had not referred to the s.245AR(1) certification but had refused the nomination application on the basis of the failure to provide supporting documents and evidence with regard to the training criteria.

19. Ms Cho wrote that had the delegate raised the issue about the s.245AR(1) certification requirement in the Department’s decision made 9 February 2017, they would have submitted a fresh Subclass 187 visa at the time as Mr Wihendra’s Subclass 457 visa did not expire until 17 February 2018.

20. Unfortunately the Tribunal has no discretion in this matter. The application did not include a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s.245AR(1), and therefore the requirement in r.5.19(30(a) is not met.

CONCLUDING PARAGRAPHS

1. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

DECISION

1. The Tribunal affirms the decision under review to refuse the nomination.

Susan Hoffman
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.