Gami Chicken Pty Ltd (Migration)

[2021] AATA 649

Gami Chicken Pty Ltd (Migration) [2021] AATA 649 (2 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gami Chicken Pty Ltd

CASE NUMBER:  1816871

HOME AFFAIRS REFERENCE(S):          BCC2017/2323121

MEMBER:Mary Sheargold

DATE:2 February 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 February 2021 at 2:42pm

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition Nomination stream – position of Cook – financial capacity to employ the nominee for at least 2 years – updated financial and business information – actively and lawfully operating a business in Australia – previous and future employment of the visa holder – terms and conditions of employment – reasonable to disregard training requirements – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 140, 245, 359, 360
Migration Regulations 1994, Schedule 2 cl 457.233; rr 1.13, 2.78, 2.87, 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 Home Affairs on 24 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).

2. The applicant applied for approval on 29 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).

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

4. 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 that it had the financial capacity to provide the nominee with full-time employment for at least 2 years.

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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.

8. On 9 December 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting it to provide updated information in relation to its business.  The letter stated that a response was due by 23 December 2020.  On 23 December 2020, the applicant’s representative provided the following documents to the Tribunal in support of the application:

   ·a copy of the current and historical extract for the applicant from the Australian Securities and Investments Commission (ASIC) dated 14 December 2020;

   ·a company summary for the applicant from ASIC dated 14 December 2020;

   ·copies of business activity statements (BAS) for the applicant’s business for each quarter from July 2018 to September 2020;

   ·a detailed financial statement for the applicant’s business for the financial year ending on 30 June 2019;

   ·a draft profit and loss statement for the applicant’s business for the financial year ending on 30 June 2020;

   ·a letter from the applicant’s accountant;

   ·an organisational chart for the applicant’s business;

   ·a copy of the position description for the nominee’s role;

   ·a copy of the employment contract between the applicant and the nominee;

   ·a letter from the applicant’s director to the Tribunal confirming the nominee’s promotion and revised salary;

   ·copies of recent payslips for the nominee;

   ·submissions and evidence regarding the nominee’s proposed salary, including a copy of the employment contract between the applicant and the nominee;

   ·PAYG for the nominee for each financial year ending on 30 June from 2015 to 2020 inclusive;

   ·Notices of Assessment from the ATO for the nominee for each financial year ending on 30 June from 2015 to 2020 inclusive;

   ·a copy of the applicant’s most recent standard business sponsorship approval, being from 29 April 2013 to 29 March 2016; and

   ·submissions and evidence regarding the applicant’s purported discharge of its obligations in respect of the training benchmarks during the period of its most recent standard business sponsorship approval.

9. Having considered all of the documentation received 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)

10. 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.

11. 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 29 June 2017 indicates that the nomination application fee has been paid.

12. The application for approval identifies Mr Sungho Kim, the nominee who, according to Departmental records, held a Subclass 457 visa from 26 February 2015 that was granted on the basis of satisfying cl.457.233(4) of Schedule 2 of the Regulations.

13. The application for approval identifies the occupation of Cook, ANZSCO 351411.  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 him as the holder of a Subclass 457 visa.  Accordingly, the Tribunal is satisfied that this occupation carries the same 4 digit code (3514) as the occupation carried out by the nominee whilst he held the Subclass 457 visa.

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

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

15. 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.

16. Departmental records confirm that the nominator was the standard business sponsor who last identified Mr Kim 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).

17. The applicant has provided the Tribunal with evidence of its company status with ASIC, BAS, detailed financial statements, profit and loss statements, and other information about the business’s activities.

18. On the basis of 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)

19. 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.

20. In this case, the relevant provision is set out in r.5.19(3)(c)(i). The nomination application was made on 29 June 2017.

21. The nominee was granted his Subclass 457 visa in the nominated occupation of Cook on 26 February 2015, sponsored by the applicant.  According to Departmental records, the applicant was approved as a standard business sponsor from 29 April 2013 to 29 March 2016.

22. The Tribunal has had regard to the PAYG statements for the nominee for the financial years ending on 30 June in each of 2015 to 2020 inclusive and his notices of assessment from the ATO, and the organisational chart for the applicant’s business.  Having considered all the evidence before it, the Tribunal finds that Mr Kim has worked for the applicant continuously since being granted his Subclass 457 visa on 26 February 2015, and was working in the nominated position for 2 years and 4 months of the 3 years prior to making the application.

23. 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)

24. 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.

25. The applicant has provided the Tribunal with a copy of the employment contract between the applicant and the nominee (the employment contract).  Clause 5 of the employment contract states that the nominee will be employed on a full-time basis, and notes that the nominee will be required to work a minimum of 38 hours per week. The contract is set to commence from the date “when ENS visa is grant [sic]”, and the period of employment is set at 2 years.  Having considered the employment contract and the salary confirmation letter, 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 expressed in the employment contract.

26. The Tribunal has considered the BAS for each quarter from July 2018 to September 2020 inclusive, the detailed financial statement for the applicant’s business for the financial year ending on 30 June 2019, the draft profit and loss statement for the applicant’s business for the financial year ending on 30 June 2020, the letter from the applicant’s accountant, the updated organisational chart for the applicant’s business, and the PAYG statements for the nominee for each financial year from the year ending on 30 June 2015 to the year ending on 30 June 2020 inclusive.  The Tribunal notes that the applicant’s business has cash reserves, is profitable, and has a steady turnover.  Having considered all the evidence before it, the Tribunal is satisfied that the applicant has the financial capacity to pay the nominee’s salary of $65,000 per annum plus 9.5% superannuation for at least 2 years.

27. Based on the evidence before it, 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 exclude the possibility of extending the period of employment.

28. 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)

29. 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.

30. The Tribunal notes that the employment contract provides for a salary of $65,000 per annum.  The employment contract notes that superannuation is payable at the applicable rate required by law.

31. Under the terms of the Restaurant Industry Award 2010 (MA000119) (the Award), the minimum weekly rate of pay for the highest grade of Cook, being a Cook grade 5 (Tradesperson) is $941.10 per week, which equates to an annual salary of $48,937.20.  The Tribunal notes that clause 20.3 of the Award stipulates that an employee on an annualised salary must be paid at least 125% of the minimum weekly rate that would otherwise be applicable under the table in clause 18 of the Award.  The Tribunal notes that 125% of $48,937.20 is $61,171.50, and finds that the nominee’s salary of $65,000 per annum is in excess of this minimum amount.  The Tribunal notes the evidence provided by the applicant regarding the current market salary for comparable roles, and in particular, the salary range for those roles quoted being up to $65,000 per annum. 

32. The Tribunal has considered the terms of the employment contract and finds that the provisions with respect to leave, notice, and termination are in accordance with the obligations in the Award and the minimum standards set out in the National Employment Standards and relevant workplace relations legislation.

33. 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.

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

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

35. 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.

36. The applicant was most recently approved as a standard business sponsor from 29 April 2013 to 29 March 2016.  The applicant is required to demonstrate that it met its obligations with respect to training, as set out below, at the time of this decision.  The applicant has provided evidence to the Tribunal and the Department regarding its efforts to comply with those obligations.

37. Regulation 5.19(3)(f)(i) requires the applicant to demonstrate that it 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. 

38. In summary, the applicant must demonstrate that it 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 applicant seeks to comply with the requirements of Training Benchmark B in each year of its most recent standard business sponsorship (SBS) approval.

39. The applicant has provided the Tribunal with its workings in relation to the total payroll expenditure calculations for each year of its most recent SBS approval, being $99,200 for the first year, $138,817 for the second year, and $278,162 for the third year.  The total payroll expenditure for the most recent SBS approval period is, therefore, reported as $516,179.  The Tribunal has referenced these figures against the figures set out in the applicant’s detailed financial statements for the financial years ending on 30 June 2015 (noting this includes information relating to the 2013-14 financial year) and 30 June 2016 as provided to the Department at the time the application was made.  The Tribunal notes that the applicant omitted the amounts paid in superannuation contributions from its total payroll expenditure calculation and has instead included only salaries and wages. The Tribunal notes that, with the amount of superannuation contributions for each of these years being incorporated, the total payroll expenditure for the applicant during its most recent SBS approval was $564,968.

40. By the applicant’s own admission, it cannot demonstrate that it discharged its obligations in relation to training during the first year of its most recent SBS approval. The Tribunal has reviewed the Departmental file, and has not been able to locate any information to assist in its assessment for the first year of the most recent SBS approval. 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.

41. 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.

42. The Tribunal has considered the material provided by the applicant on 23 December 2020 to confirm that it did make expenditures under Training Benchmark B during its most recent SBS approval period.  However, the Tribunal notes that the applicant has provided only training plans and tax invoices from the National Training Centre of Australia trading as Smarter Business Training, and it has not provided any tax receipts or other documents to confirm that the courses for training its Australian permanent resident staff were actually paid for by the applicant.

43. The Tribunal has therefore considered all of the information contained in the Department’s file, and notes the applicant provided 2 tax receipts for training courses for its Australian permanent resident staff.  The first receipt is from Glen Training for the amount of $4,400 paid on 25 April 2017, and the second receipt is from the National Training Centre of Australia trading as Smarter Business Training for the amount of $3,410 paid on 26 April 2017.  Both receipts provide detail regarding the staff to trained and the courses undertaken.  Based on all the evidence before it, the Tribunal is satisfied that both these expenditures would be satisfactory for the purposes of meeting Training Benchmark B.

44. However, the Tribunal notes that both payments were made over 12 months after the most recent SBS approval had lapsed.  The Tribunal has considered the applicant’s submissions and its honesty in noting it could not clearly demonstrate its compliance with the training obligations during the first year of its most recent approval, and notes the applicant’s submissions regarding its intent to demonstrate its genuine efforts to comply with its sponsorship obligations by making additional payments for training its Australian permanent resident staff in 2017. 

1. The Tribunal notes that the value of training expenditure that can be proven is $7,810, and finds that this amount is well in excess of 1% of the total payroll expenditure during the SBS approval period, being $5,650.  Whilst those payments totalling $7,810 were made after the period of SBS approval, the Tribunal notes that the applicant provided some evidence regarding its intentions to discharge its obligations during the SBS period itself, and notes that the applicant has made a genuine effort to discharge the obligations under r.2.87B(2) prior to submitting this application to the Department, even if it has done so in a manner that is not strictly compliant with r.2.78B(2).

2. 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)

3. 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. 

4. 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.

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

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

6. 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.

7. 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.

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

9. 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

10. 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.