F & B Goa Traders Pty Ltd (Migration)
[2019] AATA 3602
•24 June 2019
F & B Goa Traders Pty Ltd (Migration) [2019] AATA 3602 (24 June 2019)
DECISION RECORD
DIVISION: Migration & Refugee Division
APPLICANT: F & B Goa Traders Pty Ltd
CASE NUMBER: 1710263
DIBP REFERENCE(S): BCC2016/3462072
MEMBER: Karen McNamara
DATE: 24 June 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 24 June 2019 at 10:43am
CATCHWORDS
MIGRATION – Nomination – Temporary Residence Transition nomination stream – training requirements – evidence provided upon review – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), cl 457.223(4), r 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 Immigration on 1 May 2017 to reject the application by F & B Goa Traders Pty Ltd T/A Curry Pirates (the applicant) 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 18 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)(f) of the Regulations. The delegate found that the applicant did not fulfil its commitments made relating to meeting training requirements and did not comply with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval.
In refusing to approve the nomination, the delegate noted that the nominator had indicated on the application form that recent expenditure on payroll was $140,000 and that they had spent $1500 on the provision of training to employees in the business who are Australian citizens and/or permanent residents, in the previous 12 months. The delegate noted that the applicant had not provided any detail or quantifiable evidence as to training expenditure.
The applicant lodged an application for review with the Tribunal on 13 May 2017.
Mr Franky Vaz appeared on behalf of the applicant before the Tribunal on 28 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee Mr Amandeep Singh who gave evidence of his employment.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
At the conclusion of the hearing, the Tribunal invited the applicant to provide further documentation (including financial statements, BAS returns, payroll information, bank statements and tax returns from the applicant and nominee) regarding the company's financial position and the employment of Mr Singh. The Tribunal gave the applicant until 3 June 2019 to provide this information. The applicant subsequently sought an extension to provide documentation which was granted by the Tribunal.
On 3 June 2019 and 14 June 2019, the applicant provided further documentation to the Tribunal. This documentation included financial documentation including bank statements, BAS Statements, Superannuation statements, Payroll Summary for 2016 Financial Year, Tax returns and a copy of the company’s Workers Compensation policy.
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.
Background
The applicant operates an Indian cuisine restaurant called Curry Pirates. The restaurant opened in 2014 and is located at Scarborough, Western Australia. The business was registered on ASIC in 2014. The Tribunal was told the business currently employs 6 to 7 staff, of which two are full time. The Tribunal was told Mr Vaz took over the business in 2015.
The applicant sponsored the nominee, Mr Amandeep Singh for his Subclass 457 visa, which Department records confirm that he held at the time of the nomination application. When making the application, the applicant provided information confirming the business is lawfully operating. Information before the Tribunal includes a contract of employment between the applicant and the nominee, signed by the nominee on 7 September 2016. The contract states the base rate of pay will be $53,900 per year plus superannuation. The applicant also provided various documents demonstrating training expenditure during the applicant’s 457- sponsorship period of 17 July 2015 to 17 July 2020.
On 1 May 2017, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) (f) of the Regulations because they were not satisfied the applicant had provided evidence to demonstrate they had fulfilled commitments made related to meeting their training requirements during the period of their most recent approval as a standard business sponsor.
The nominee, Mr Amandeep Singh, has occupied the position of Cook since the granting of his 457 Visa in 2015 and continues to work in this position. The applicant told the Tribunal that Mr Singh commenced working with the business in 2014.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
The Tribunal discussed with the applicant the requirements of r.19(3). The following is a summary of the oral and written evidence provided to the Tribunal during and following the hearing.
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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly the requirements of r.5.19(3)(a)(i) are met.
The application for approval identifies Mr Amandeep Singh, who according to Department records, held a subclass 457 Visa from 19 August 2015 to 19 August 2019 that was granted on the basis of satisfying cl.457.223(4) of Schedule 2. Accordingly the requirements of r.5.19(3)(a)(ii) are met.
The occupation identified in the application is Cook (ANZSCO 351411). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee, the nominee’s contract of employment, payroll records and Department records that the occupation identified is the same occupation as that carried out by the nominee as the holder of a subclass 457 Visa. The Tribunal is also satisfied that this occupation carries the same four- digit code as the occupation carried out by the nominee whilst he held the Subclass 457 Visa. Accordingly the requirements of r.5.19(3)(a)(iii) are met.
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.
The Department’s records confirm the applicant was an approved standard business sponsor for the period 17 July 2015 to 17 July 2020.
The applicant has provided to the Tribunal copies of business activity statements and financial records recording the business has income from sales and has paid wages and withheld tax. The business’s financial statements confirm that the business derives income from operating a restaurant. The applicant has also provided ASIC records confirming that the business name is registered.
Based on the ASIC information, financial documents and the applicant’s oral evidence, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and did not, meet regulation 1.20DA or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor.
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.
On 19 August 2015, the nominee was granted a subclass 457 Visa sponsored by the applicant and has continued to be employed by the applicant since. The applicant has provided copies of payroll and bank statements and the nominee’s ATO PAYG’s confirming that the nominee, during the term of his employment with the applicant, has received payment of the full time salary of $53,900 per annum. The applicant has also provided a contract of employment signed and dated by the nominee on 7 September 2016.
The applicant told the Tribunal that the nominee has not taken any unpaid leave during his employment and has worked in a full time capacity in the position of Cook for a period of two years whilst holding a subclass 457 visa. Evidence before the Tribunal including company payroll, bank and PAYG records and Mr Singh’s Tax returns and bank records confirm Mr Singh’s period of full time employment with the applicant.
Based on this evidence Tribunal is satisfied the nominee has been employed in a full time capacity by the applicant as a Cook since 2015. The Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 Visa for at least two years in the three-year period immediately before this nomination application was made. The requirements in r.5.19(3)( c)(i) have therefore been 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 Tribunal has had regard to the contract of employment for the nominee signed and dated 7 September 2016. The contract, which sets out the terms and conditions of employment, indicate that the period of employment is two years upon the granting of a subclass 187 visa. At the hearing, the nominee advised the Tribunal that the business would employ the nominee indefinitely for as long as the nominee wished to stay in their employ. The contract stipulates the base salary is $53,900 per annum plus superannuation with hours of work 38 hours per week. The nominee’s leave entitlements include annual, personal, carers, compassionate, parental, community services and long service leave. There is no term excluding an extension of the contract. The Tribunal has had regard to the business’ financial documentation and ATO BAS statements and the nominees bank statements and tax returns. Based on this material, the Tribunal is satisfied that the nominator has the financial capacity to maintain the nominee’s full time employment as they have done since 2015.
The Tribunal is satisfied based on the employment contract of 7 September 2016 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
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 contract of employment signed by the nominee on 7 September 2016 sets out the terms and conditions of employment and indicates that the nominee’s salary is $53,900 per annum excluding superannuation. The Tribunal has received payroll records, bank statements, payslips, PAYG and tax returns confirming that Mr Singh since 2015 has received payment of $53,900 p.a. The Tribunal is satisfied the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and conditions applicable to the 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)(i) requires the applicant to have:
·fulfilled any commitments made relating to meeting training requirements, and
·complied with applicable obligations under Division 2.19 relating to training requirements
during the period of the applicant’s most recent approval as a standard business sponsor.
Regulation 5.19(3)(f)(ii) allows for these requirements to be disregarded if it is reasonable to do so.
Department records show that the applicant’s most recent approval as a standard business sponsor was approved on 7 July 2015 for a period of five years.
In consideration of the criterion in r.5.19(3)(f)(ii)(B), the most relevant obligation contained in Division 2.19 is r.2.87B(2). The regulation provides that if, during the 12 months commencing on an anniversary of the day the company is approved as a standard business sponsor, the nominator sponsored at least one primary person, it must comply with requirements relating to training specified by the Minister in an instrument in writing for this sub regulation, for that 12 month period. Departmental records confirm that Mr Amandeep Singh was granted a Subclass 457 visa on 19 August 2015, sponsored by F & B Goa Traders Pty Ltd. This falls within the 12 months commencing from the day on which the company was approved as a standard business sponsor.
The relevant training benchmarks are specified in IMMI13/030. Relevantly, a business meets the benchmarks by demonstrating:
·recent expenditure to the equivalent of at least 2% of the payroll of the business to an allocated industry training fund and a commitment to maintain expenditure in each fiscal year for the term of approval as a sponsor, or
·recent expenditure to the equivalent of at least 1% of the payroll of the business in the provision of training to employees of the business and a commitment to maintain expenditure to that level each fiscal year for the term of approval as a sponsor.
On 19 June 2017 the applicant provided the Tribunal with the following receipts for training:
·Oz WA Training dated 22 February 2016 $1,500.
·Ausskill Training Centre Pty Ltd dated 6 November 2017 $1,300
·Ausskill Training Centre Pty Ltd dated 29 October 2018 $2,650
All training courses were undertaken by Brendan Fernandez a former owner and Director of the business. ASIC records indicate he was not a Director at the time of undertaking the training. The Tribunal was told he continues to work in the business. The Tribunal notes the Agent’s submission of 17 April 2019 in which the agent claims the applicant has provided invoices of $5450 since the most recent SBS approval on 17 July 2015. The agent claims the total payroll expense for the 2016, 2017, 2018 financial years is
$520,399. BAS records and the applicants’ financial statements indicate the business’s payroll expense was $476,211 for this period. The Tribunal notes the training invoice dated 29 October 2019 falls within the 2019 financial year.
The Tribunal has considered the applicant’s financial statements and BAS returns to identify the business’s payroll for each fiscal year of the term of approval as a sponsor and benchmark B requirements. This is summarised in the table below:
| Fiscal Year in term of sponsorship | Payroll | 1% (Benchmark B requirement) | Training Expenditure | Date of Training |
| 2016 Financial Year | $136,473 | $1,364 | $1,500 | 22 February 2016 |
| 2017 Financial Year | $162,757 | $1,627 | nil | |
| 2018 Financial Year | $176,981 | $1,769 | $1,300 | 6 November 2017 |
| 2019 Financial Year | $123,845 | $1,238 | $2,650 | 29 October 2018 |
[1] The Tribunal notes that while this is not a full financial year, consideration is afforded to the applicant’s contribution to date and total payments made during the approved sponsorship period.
The Tribunal finds the applicant has met the training requirements for the 2016, 2018 and 2019 (to date) fiscal periods. The Tribunal however notes no evidence of payment in the 2017 fiscal period.
At the hearing, the Tribunal was told that the applicant had not intentionally avoided payment for training in the 2017 financial year and that he had honestly been confused as to when he was required to make the payment and thought that it was later in the year. When he realised his mistake he took action to ensure future payments were made correctly.
The Tribunal notes that the payments made by the applicant were not made in each fiscal year and so the applicant did not fulfil its commitment relating to training and did not comply with its sponsorship obligations in the relevant periods. Consequently, the applicant does not meet the requirements in r.5.19(3)(f)(i). As such, consideration must be given to whether it is reasonable to disregard the training requirements.
The Tribunal has considered the submissions and evidence before it. On balance, given the evidence of ongoing training contribution payments by the applicant, the Tribunal considers it is appropriate to disregard the requirement in r.5.19(3)(f)(i) in view of the applicant's overall commitment to training.
Given the above, the Tribunal finds that r.5.19(3)(f)(ii) is met and accordingly, the applicant meets the requirement in r.5.19(3)(f).
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 the Department 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 that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
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.
Karen McNamara
Member
ATTACHMENT - Extracts from the Migration Regulations 1994
5.19 Approval of nominated positions (employer nomination)
…
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
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.
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