GURU KIRPA (QLD) PTY LTD (Migration)
[2018] AATA 5313
•29 October 2018
GURU KIRPA (QLD) PTY LTD (Migration) [2018] AATA 5313 (29 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: GURU KIRPA (QLD) PTY LTD
CASE NUMBER: 1705742
DIBP REFERENCE(S): BCC2016/3096266
MEMBER:Alan McMurran
DATE:29 October 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 29 October 2018 at 3:18pm
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination – Cook – financial capacity – probation provision in contract of employment – profitability of business – lease arrangements – decision under review set asideLEGISLATION
Migration Regulations 1994 (Cth), r 5.19STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application by Guru Kirpa (Qld) Pty Ltd (the applicant) for review of a decision made by a delegate of the Minister for Immigration on 10 March 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 18 September 2016.
Relevant Law
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.
Refusal
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) and (ii) of the Regulations because there was no verifiable evidence before the delegate that the business has the financial capacity to provide permanent full-time employment for the nominee for at least two years.
Combined Hearing
The applicant appeared before the Tribunal in a video conference on 29 October 2018 to give evidence and present arguments. Its director, Mr Jaipal Singh, represented the applicant. The hearing was a combined hearing with an application by the nominee, Randhir Singh (the nominee) for review of his visa refusal.
The Tribunal received oral evidence from Mr Jaipal Singh for the applicant (the director) and from the nominee. An interpreter in the Punjabi language was also present.
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 approval, the applicant must meet all the requirements.
The Tribunal has had regard to the information obtained from the hearing and contained in the applicant’s Tribunal file, the nominee’s Tribunal file, and the Department files for each applicant. The relevant information is referred to below.
The application: 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.
Approved Form
The applicant satisfies regulation 5.19(3)(a)(i) if it made the application in accordance with regulation 5.19(2).
The applicant paid the prescribed fee, applied for approval of the nomination on Internet Form 1395 and identified the position, occupation, person (the nominee) and the Temporary Residence Transition stream (regulation 5.19(2)(i)).
It also provided certifications that the applicant has not contravened provisions that prohibit payment for visa sponsorship (regulation 5.19(2)(ii)).
The applicant therefore satisfies the requirements of regulation 5.19(2) and (3)(a)(i).
Identifies a Person who holds Subclass 457 visa
As noted, the applicant identified the nominee whose movement records confirm he held a class 457 visa when the company made the application. The company therefore meets regulation 5.19(3)(a)(ii).
The identified occupation is Cook ANZSCO 351411.
The duties of a cook are to prepare, season and cook food in dining and catering establishments. Tasks include examining foodstuffs for quality, regulating cooking temperatures, grills and cooking equipment, preparing and cooking food and seasoning during cooking, portioning food and garnishing, storing food and temperature control, prepare food for dietary requirements, plan menus and train other kitchen staff.
The nominee gave evidence consistent with the above duties at his workplace. The director also gave evidence confirming the duties and responsibilities of the nominee, which are consistent with the description provided for the occupation of Cook. The nominee first obtained qualifications as a cook in Australia in the period from 2008 until 2012, then obtained employment with the applicant, where he has remained since early 2014.
The nominee has held two subclass 457 visas, first issued on 19 December 2013 and then on 15 July 2016. Both visas were granted on the nomination of the applicant for the occupation of cook.
Based on that evidence, the Tribunal is satisfied the nominee’s duties are consistent with the occupation description in ANZSCO. The applicant has identified that occupation and the relevant ANZSCO code in the nomination application. The company therefore satisfies regulation 5.19(3)(iii).
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.
A search of the Department’s file confirms the applicant was approved as a standard business sponsor by notice granted 17 March 2016 and expiring 17 March 2021, who identified the holder of the subclass 457 visa (the nominee) in its nomination made in accordance with the Act and Regulations.
The applicant also produced a current company extract from ASIC, which identifies the applicant as a current Australian registered proprietary company. The applicant has submitted taxation returns and copies of its most recent accounts and financial records back to 2016. Those records reveal the applicant is currently trading profitably and has met its obligations with the corporate regulator.
The Tribunal therefore finds the applicant actively and lawfully operates its business in Australia and meets the requirements of the sub-regulation. The applicant does not operate overseas. At the hearing, the applicant confirmed it has been so operating since 2013 when it acquired the restaurant business.
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):
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;
On the information available to the Tribunal, the Tribunal is satisfied that the nominee has been employed by the applicant since February 2014 in the position of cook, and in respect of which the nominee was granted a 457 visa in 2013 and then again in 2016.
On that basis, the Tribunal finds that the nominee’s occupation corresponds with the nomination application and the nominee has a visa history, which demonstrates he has held his subclass 457 visa for the whole of the period of 3 years prior to the application.
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.
At the hearing, the Tribunal discussed his employment with both the nominee and the applicant. The applicant has produced a contract of employment dated 27 June 2017, which purports to take effect for at least 2 years from when a subclass 186 visa might be granted.
The Tribunal asked questions about cl. 2 of that agreement which refers to “probation”. The director gave evidence that the contract had been provided by his accountant, and he had not read it carefully. He confirmed that the employment with the nominee had continued for several years already and that no probation period was required. The director confirmed that the provision in relation to probation was not relevant and should be omitted.
The Tribunal accepts that the applicant will employ the nominee on a full-time basis for at least 2 years, and without any probation provision. The Tribunal accepts that the inclusion of the provision was an “oversight” and will be omitted. The Tribunal is further satisfied the nominee will receive a salary of $54,000 per annum plus superannuation.
The Tribunal asked a number of questions at the hearing about the financial performance of the applicant. The director indicated he had purchased business in mid-2013 for $75,000 and had then spent approximately $30-$40,000 on renovations and fit out. He said he borrowed approximately $40,000 from the ANZ bank, which he has just finished repaying in full. The applicant said that in starting up the business, the debt repayments had reduced its profitability. Since January 2018, as he has now repaid the loan and has halved his previous rental commitments by moving to new premises, the profitability has increased significantly. The director said that the applicant will have no difficulty meeting financial obligations into the future including those for payment of wages and entitlements. The director said that the mining area locally had been affected substantially in the previous five-year period and that things had been “tough”. He said the local circumstances had now begun to improve and the applicant has seen through the difficult start-up period in a mining town environment, which is both seasonal and cyclical.
The director gave evidence that he has continually employed the nominee since his initial engagement in 2014, despite the tough trading conditions, and that he has always paid his salary and entitlements from the business turnover. The Tribunal notes and accepts the evidence in the form of ANZ bank statements of the applicant, which show regular fortnightly payments to the nominee commencing in about February 2014.
The Tribunal further notes the contract of employment does not exclude expressly the possibility of extending the employment. The Tribunal asked questions about the current premises from where the business operates in Gladstone and the fact the lease expires in January 2019. The director stated the lease provides for an extension for a minimum period of a further 12 months, and if necessary, the director would relocate the business elsewhere to ensure its continued operation. The director thought this will not be necessary as he pays his rent on time and is a good tenant. The director stated the rent is now less than where he was previously located prior to January 2018, at Tannum Sands, an outer suburb of Gladstone.
The director also stated that although he thought he had provided all the financial information necessary for the Department with the application, it seems the Department did not receive that information, which is why the delegate’s decision refers to the fact that very few documents were submitted in support. Having now supplied that financial information, the Tribunal is satisfied that the applicant has sufficient financial strength and opportunity to meet its commitment towards the nominee, and that he will be employed for a continuous period of not less than 2 years without an exclusion for any extension of that 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 Tribunal is satisfied in accordance with the employment agreement that the applicant pays the nominee a salary of $54,000 per annum plus superannuation. According to the information provided by the applicant from the Seek website for related occupations as a cook, an appropriate salary is in the range from $50,000 to $60,000 per annum.
The Tribunal finds that the nominee will be paid a salary in the mid-range for the stated occupation. The employment is subject to the National Employment Standards under the Fair Work Act for ordinary hours of work, 38 hours per week.
Accordingly, the tribunal is satisfied that the terms and conditions applicable to the nominated position are no less favourable than are provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19 (3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The Tribunal is satisfied there is no evidence to indicate that the requirements may be disregarded.
As indicated above, the applicant’s most recent sponsorship approval commenced 17 March 2016 and continues to 17 March 2021.
The applicant has produced evidence of payments made to TAFE Queensland on 13 September 2016, and on 29 June 2017. The 2016 payment has been receipted by TAFE Queensland in the sum of $1680 and acknowledges the payment as the 457 visa Benchmark A contribution by the applicant.
Similarly, the receipt for the 2017 payment acknowledges the payment of $1581as the 457 visa Benchmark A contribution by the applicant for that year.
Regulation 5.19 (3) (f) (i) provides that the applicant fulfil commitments of the applicant made to meeting the applicant’s training requirements during the nominated period as a standard business sponsor and compliance with the applicable obligations under Division 2.19 relating to training requirements during the period of the most recent approval as a sponsor
Those obligations provide that the applicant, as a standard business sponsor of at least one primary sponsored person (the nominee), has complied with the requirements relating to training, specified by the Minister in an instrument in writing for the subregulation, and for the 12-month period. The applicant must have sponsored at least one primary sponsored person (the nominee).
The relevant instrument IMMI 13/030 specified that the training Benchmark A requirement is the equivalent of at least 2% of payroll of the business in payments allocated to an industry training fund (in this instance, TAFE Queensland).
The applicant has produced its financial records including the receipts from TAFE Queensland. The financial records demonstrate the payroll of the business was $63,076 for the financial year ending June 2017 and $77,976 for the financial year ending June 2016. 2% of the payroll for 2017 is $1260, and for 2016 is $1558.
For each of those years therefore, the Tribunal is satisfied the financial records indicate the applicant has spent more than 2% of its payroll, allocated to TAFE Queensland.
Accordingly, the requirement in r.5.19 (3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B and include having been found liable or in breach of a relevant State or Commonwealth law.
The director stated at the hearing he had not been the subject of any prosecution, claim or alleged breach since he acquired the business in 2013 and the Tribunal has no information before it or on the Department’s file which discloses any adverse information.
On that basis, the Tribunal finds it is satisfied the applicant is not the subject of any adverse information known to Immigration.
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 information before the Tribunal of any failure to comply by the applicant with any workplace laws or industrial relations requirements. At the hearing, the Tribunal asked questions about any visits from the Department or any enquiries by any authority concerning compliance with workplace laws. The Tribunal notes that the director confirmed he takes advice from professional consultants including his accountant and migration representative and assured the Tribunal he was not aware of any investigation or enquiry concerning any alleged breaches. The Tribunal notes the current salary on offer to the nominee is commensurate with other Australian employees doing the same work in the same location.
Accordingly, the Tribunal is satisfied that the applicant meets the requirement in r.5.19(3)(h).
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.
Alan McMurran
MemberATTACHMENT - 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Jurisdiction
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Procedural Fairness
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