H Al Kurdi & R Barakat & R Barakat & Y El-Kurdi (Migration)

[2018] AATA 4886

H Al Kurdi & R Barakat & R Barakat & Y El-Kurdi (Migration) [2018] AATA 4886 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  H Al Kurdi & R Barakat & R Barakat & Y El-Kurdi

CASE NUMBER:  1708467

DIBP REFERENCE(S):  BCC2016/2266463

MEMBER:Cathrine Burnett-Wake

DATE:23 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 23 October 2018 at 11:36am

CATCHWORDS
MIGRATION – nomination approval – temporary residence transition stream – operating business – full time employment available – favourable employment conditions – decision under review set aside

LEGISLATION
Marriage Act 1961 (Cth) s 245AR
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 30 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).

2. The applicant applied for approval on 5 July 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition 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. The delegate stated in their decision:

   ‘On the basis of the evidence currently before me, the business has not demonstrated the financial capacity to be able to pay the full-time salary and other employment conditions for the nominated position for at least 2 years. Therefore, the nomination application does not meet the requirement that the appointment will provide the employee with full-time employment for at least 2 years.’

5. The applicant appeared before the Tribunal on 12 September 2018 to give evidence and present arguments. The Tribunal received oral evidence from Mrs Rawaa Barakat, one of the partners of the business. The associated nominee, Mr Assem Baraket, also attended and gave oral evidence to the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The applicant was represented in relation to the review by its registered migration agent, Mr Nazim El-Bardough.

7. 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

8. 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)

9. 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.

10. On the basis of the information in the Department's file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.

11. The application for approval identifies Assem Baraket, the nominee who, according to Department records held a Subclass 457 visa from 20 November 2012 until 20 November 2016, that was granted on the basis of satisfying subclause 457.223(4) of Schedule 2.

12. The occupation identified in the application is Program or Project Administrator (ANZSCO 511112). The Tribunal is satisfied, based on the employment documents for the nominee, that the occupation identified is the same occupation as that carried out by him as the holder of a Subclass 457 visa. The Tribunal is accordingly satisfied that this occupation carries the same 4-digit code (5111) 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) is 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. During the hearing Mrs Barakat outlined to the Tribunal that H Al Kurdi & R Barakat & R Barakat & Y El-Kurdi is a family partnership trading as Australian Stylish Cabinets. She outlined the business was established in 2009 between her husband, who is a cabinetmaker, herself, her husband’s cousin, also a cabinetmaker and the cousin’s wife. She outlined that the business operated from a factory in Cambellfield in a building owned by her husband. Mrs Barakat outlined that they make and install custom kitchens, for both private clients and builders. She outlined that they were undertaking a lot of work for builders who are building in new estates, and that side of the business was seeing very good growth, and they recently had to put on more workers to keep up with the increasing orders. The profit and loss statements provided to the Tribunal support Mrs Barakat’s claims regarding growth. There has been an increase in sales between the 2017 and 2018 financial years of approximately AUD 278,000.

16. The Tribunal is satisfied on the basis of the material before it, including the business' registration documents, activity statements, work orders, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating business in Australia.

17. Given the above, the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

18. 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.

19. In this case, r.5.19(3)(c)(i) is the relevant provision. The nomination was lodged on 5 July 2016. The nominee was granted the Subclass 457 visa to work in the nominated occupation of Program or Project Administrator on 20 November 2012.

20. The Tribunal has had regard to PAYG payment summaries from 2014 to 2017 along with the payroll activity summary document on the file, which confirms the nominee's employment with the nominator.

21. During the hearing, Mrs Barakat confirmed the nominee’s employment and confirmed for the Tribunal the role and duties of the nominee, which correlate to those of Program or Project Administrator (ANZSCO 511112). Mr Baraket also provided separate evidence regarding his employment and his role and duties. This evidence was consistent with what Mrs Barakat provided to the Tribunal.

22. 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)

23. 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.

24. Financial statements for the 2016, 2017 and 2018 were provided to the Tribunal, along with the correlating Tax returns lodged with the Australian Taxation Office (ATO) for the same years. Net profit, after tax, listed on the financials and tax return for the 2017 financial year is AUD 318,440, which was distributed equally between all four partners. The 2018 financials and tax return report net profit, after tax, as AUD 348,734, which again was distributed equally between all four partners.

25. The Tribunal has had regard to the signed offer of employment and the letter of guarantee, confirming the nominee will be employed on a full-time basis for at least 2 years; and that his employment contract does not expressly exclude the possibility of extending the period of employment. Mrs Barakat also confirmed at hearing that the employment of the nominee is full-time, ongoing and that the position would be available for at least 2-years. She outlined that she hoped he would stay beyond 2-years as it was very hard to find long-term and loyal staff.

26. The Tribunal has had regard to the documents provided on review, including the nominator's financial statements, company tax returns and BAS. It is noted that the nominator has consistently turned a profit. The nominator has also provided evidence of meeting its superannuation payments for employees and its work cover insurance obligations.

27. The Tribunal is satisfied on the totality of the evidence that the nominator has the financial capacity to maintain the nominee's employment as they have done since 2012.

28. The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending the period of employment.

29. 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)

30. 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.

31. The evidence on file indicates the nominee's base salary is $54,000 plus superannuation. At hearing Mrs Barakat, outlined that there were no equivalent workers within the organisation. Mrs Barakat outlined that they determined the nominee’s salary through online research, looking at similar job advertisements and also asking friends who owned similar businesses how much they were paying employees undertaking the same or similar role. The representative also provided a submission that the declared income of the nominee is within the appropriate rate of that normally paid to a Program or Project Administrator of comparable experience as the nominee and is consistent with the medium market rate for the same occupation as listed on payscale.com (AUD 57,934). The Tribunal accepts the representative’s submissions.

32. Based on 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.

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 representative provided post-hearing submissions to the Tribunal addressing training commitments and obligations. The submissions outlined that the employer’s most recent sponsorship approval was approved on 20 November 2012 and ceased on 20 November 2015. However, the evidence before the Tribunal based on Department records is that the applicant’s most recent sponsorship approval was granted on 17 May 2016 and ceases on 17 May 2021, which is the period of the Tribunal’s focus for determining if r.5.19(3)(f) can be met.

36. The applicant has provided evidence that they have employed at least one-apprentice cabinetmaker since 2011. Their current apprentice has been employed continually since 2016 and throughout the relevant period. Evidence of this apprentice’s salary has been provided to the Tribunal which when compared to the payroll for the relevant financial years is well in excess of the minimum requirement spend of 1%.

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

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

38. 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. 

39. 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.

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

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

41. 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.

42. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

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

44. 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

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

    Cathrine Burnett-Wake
    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.