Ginger N Garlic Curry House Pty Ltd (Migration)

[2020] AATA 2925

Ginger N Garlic Curry House Pty Ltd (Migration) [2020] AATA 2925 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ginger N Garlic Curry House Pty Ltd

CASE NUMBER:  1727830

DIBP REFERENCE(S):  BCC2017/112658

MEMBER:Glenn O'Brien

DATE:27 May 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 27 May 2020 at 8:34pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Cook – financial capacity to maintain nominee’s employment – substantial business growth – profitable operations – decision under review set aside

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 27 October 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 Ginger N Garlic Curry House Pty Ltd applied for approval on 10 January 2017. The applicant nominated Amarbir Singh for the position of cook (ANZSCO 351411) (the ‘nominee’). 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 nomination stream.

4. The applicant provided the Tribunal a copy of the delegate’s decision record with the application for review. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (3) of the Regulations because the delegate was not satisfied the business nominator had the capacity to employ the employee in a full-time position for at least two years from the date of the visa grant.

5. On 6 January 2020 the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.5.19 of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, financial records, ASIC information, employment contracts, an organisational chart, a lease, and marketing material. All material received prior to the review hearing has been duly considered by the Tribunal. Notably, the financial statements provided to the Tribunal for the period ending 30 June 2019 were signed but there was no evidence of the taxation returns for that period. The applicant indicated that the financial statements were final, and the taxation return for the year ending 30 June 2019 had been filed. On 26 March 2020 the applicant provided to the Tribunal a printed copy of the electronic taxation return for the year ending 30 June 2019 and this further information was considered by the Tribunal in the application for review.

6. The applicant appeared before the Tribunal on 19 March 2020 to give evidence and present arguments.

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

8. 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

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.

   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 nominator lodged an online application for the Temporary Residence Transition nomination stream. The position is for a cook (ANZSCO Code 351411) within their restaurant which trades as ‘Goa Indian Fusion’. Having regard to the evidence, the Tribunal is satisfied that the application was made on the approved form, accompanied by the prescribed fee and included written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act.

12. The application for nomination identifies the nominee who held a Subclass 457 visa that was granted on the basis of satisfying subclause 457.223(4) of Schedule 2. Having regard to the evidence, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa at the time of the application. The Tribunal is accordingly satisfied that this occupation carries the same 4-digit code as the occupation carried out by the nominee whilst he held the Subclass 457 visa.

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

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

14. 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.

15. Having regard to the applicant’s financial records, taxation returns, business and marketing information and ASIC records, in conjunction with the oral evidence of the applicant, the Tribunal is satisfied the applicant is actively and lawfully operating a business in Australia. Further, the Tribunal is satisfied that the applicant is the relevant standard business sponsor who last identified the nominee, being a Subclass 457 visa holder, in a prior relevant nomination in relation to that visa made under s.140GB of the Act.

16. The applicant, through its Managing Director Mr Pushpinder Singh Oberoi, gave oral evidence outlining that the business is situated at Main Beach on the Gold Coast and has both dine-in and take-away facilities.   Mr Oberoi told the Tribunal that the business expanded in 2018 with the staging of the Commonwealth Games on the Gold Coast and despite the recent events relating to Covid-19 is ‘doing quite well’.  While the restaurant which has seating for 65 people has been temporarily closed for dining the take-away business has expanded as the restaurant has a free delivery service and utilises the front of house staff to assist in those deliveries.

17. In reviewing the financial records of the applicant there was a significant increase in the trading income of the applicant in 2018 which accords with the Mr Oberoi’s evidence in relation to the growth the business experienced with the staging of the Commonwealth Games on the Gold Coast in 2018.  While the 2019 income has regressed from that increase the business recorded income of AUD433633 for the financial year ending 30 June 2019 being significantly more than at the time of the application.

18. Given the above, 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. The nominee was at the time of the application a holder of a Subclass 457 visa in the nominated position of cook (ANZSCO Code 351411). Documentary evidence before the Tribunal, including employment contracts and PAYG summaries confirms the nominee has been employed since June 2014.  Notably, the applicant’s employer changed during the three years preceding the nomination application due to a business restructure. 

21. The nominee was initially employed by Ivanovsa Oberoi Pty Ltd trading as ‘Goa’ and ‘Goa Indian Fusion’ of which Mr Oberoi was the sole director.  In 2016 Mr Oberoi established Ginger N Garlic Curry House Pty Ltd on 14 January 2016.  The applicant acquired the existing business from Ivanovsa Oberoi Pty Ltd trading as ‘Goa‘ and ‘Goa Indian Fusion’ in 2016 and the nominee entered into a new employment contract with the applicant on 24 June 2016. 

22. While not binding on the Tribunal the Department PAM (Div 5.3, r.5.19) provides guidance that a nominee who is working for a new employer, may still be considered to have remained with the ‘same employer’ in the nominated position on a full-time basis for at least two years  in the period of three years immediately prior to lodgement.  Scenario 3 of the PAM provides:

    “There may be applications for the Temporary Residence Transition stream where the nominator has not been the nominee’s sole standard business sponsor during the whole required 2 year period. In these cases, work undertaken with an entity other than the most recent standard business sponsor may still be considered towards the 2 year requirement if the nominator can demonstrate that the nominee has actively performed the duties of the position for the required 2 years despite a change of their employer. This may occur in situations where the current standard business sponsor has undergone business restructure/takeover/sale/closure and may have changed their ABN/ACN/name, which required a new standard business sponsorship approval. That is, there must be some connection between the most recent standard business sponsor and any previous standard business sponsor/s of the nominee to be counted towards the 2 year requirement.

    When assessing this criterion for cases where there has been more than one standard business sponsor, delegates should consider the following three questions and, if they consider the answers to the three questions to be generally ‘yes’, may consider this criterion to be met:

    ·Is the nominee still working in the same position, performs the same duties and has the same working conditions in the required 2 year period, regardless of the change of sponsor?

    ·Does the nominee report to the same management structures?

    ·Has the nominator retained the same business name and/or operations, but is considered to be a new legal entity?

    The policy intent is to accommodate for UC-457 visa holders that apply for Temporary Residence Transition stream that have been affected by circumstances outside of their control, such as their employer undergoing a business restructure, takeover, sale or closure.”

23. In considering whether the nominee worked with the same employer the Tribunal is satisfied the nominee was working in the same position on the same conditions.  While the business structure changed, the same individuals were in control and management of the business and the applicant carried on the trading name ‘Goa’ and ‘Goa Indian Fusion’ from the same premises after the acquisition.  The Tribunal therefore finds the nominee satisfies the requirement that he was employed in the position for at least 2 years in the 3 years immediately before the application.

24. 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)

25. 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.

26. The application was refused on the basis the applicant did not satisfy 5.19(3)(d).  The Tribunal was concerned the applicant left the applicant’s employ in October 2017 after the application was refused.  The nominee’s employment from October 2017 to 2 October 2019 (when he recommenced employment with the applicant) is unknown.  Mr Oberoi told the Tribunal he was not aware of the nominee’s employment during this period.

27. However, having regard to the documentary evidence, including the terms and conditions of the nominee’s employment as provided in the current employment contract dated 23 September 2019, pay slips and taxation records, 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. Further, the Tribunal accepts the oral evidence of Mr Oberoi that this is the case.

28. Additionally, having considered the submitted financial records, the Tribunal is satisfied that the applicant has the financial capacity to pay the full-time salary for the nominated position for at least two years. As set out in these reasons for decision the nominee met the requirements of r.5.19(3)(c) at the time of the application and has been re-employed by the applicant continuously since October 2019.

29. Since the time of the refusal, the applicant’s business experienced substantial growth during 2018 due to the staging of the Commonwealth Games on the Gold Coast.  Additionally, the applicant’s trading income has increased from AUD273031 for the financial year 2017 to AUD433633 for the financial year ending on 30 June 2019.  The applicant has gone from a trading loss in 2017 to a profit in 2019.  The applicant provided evidence in relation to marketing and business strategy and recent activities including business support of the HOLI Festival of Colours on 7 March 2020 and told the Tribunal the business is going quite well and although impacted by COVID-19 is operating profitably through its take-away and free delivery strategies.

30. 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)

31. 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.

32. The applicant submitted an employment contract providing the nominee with a base annual salary of AUD54000 plus superannuation, PAYG taxation records of the nominee and pay information relating to its other employees. The applicant provided documents to the Tribunal of a market analysis undertaken in relation to the nominated occupation on the Gold Coast and its surrounds which included a review of advertised positions on the Gold Coast.  The review undertaken by the applicant calculated a market salary rate between AUD53500 and AUD55000.  Having regard to the documentary and oral evidence before it, as the nominated salary is within the market range the Tribunal is satisfied 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.

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

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

34. 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.

35. The applicant was most recently approved as a standard business sponsor on 29 January 2020 for a period of five years effective until 29 January 2025. The requirements at the time of the most recent sponsorship approval did not include any training commitments that have to be fulfilled by the applicant. The Tribunal further notes that the sponsorship obligation to provide training no longer applies. In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied.    

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

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

37. 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. 

38. There is no evidence of adverse information contained in the Department file, or before the Tribunal, about the applicant (‘the nominator’) or a person associated with the applicant.

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

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

40. 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.

41. There is no evidence before the Tribunal suggestive of the applicant not having a satisfactory record of compliance with Commonwealth or State workplace relations laws.

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

42. 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

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

    Glenn O'Brien
    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.