HAOYU PTY LTD (Migration)

[2020] AATA 261

HAOYU PTY LTD (Migration) [2020] AATA 261 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  HAOYU PTY LTD

CASE NUMBER:  1715870

DIBP REFERENCE(S):  BCC2017/748789

MEMBER:Amanda Mendes Da Costa

DATE:5 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 05 February 2020 at 1:12pm

CATCHWORDS

MIGRATION – Nomination – Temporary Residence Transition nomination stream – financial capacity – documents provided upon review – financially viable business – increased turnover – nominee employed since 2014 – nomination approved upon review – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 245AR(1)
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 11 July 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 24 February 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 (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 because the delegate was not satisfied that the applicant had demonstrated the financial capacity to be able to pay the full-time salary for the nominated position for at least two years.

5.    Ms Weina Wang, a director of the applicant appeared before the Tribunal on 2 August 2019 to give evidence and present arguments. The hearing was held as a combined hearing with the visa refusal case of the nominee Mr Duang-Ek Chaikijkosi.  The Tribunal also received oral evidence from the nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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)

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.

1. The application was made on the internet using the approved form and accompanied by the relevant fee.  The relevant s.245AR(1) certification was also provided in the application form.

2. The identified occupation in the application is Café or Restaurant Manager (ANZSCO 141111).

3. The Tribunal is satisfied that the application:

   ·     identifies the nominee as the holder of a Subclass 457 visa granted on the basis that he satisfied cl.457.223(4) (r.5.19(3)(a)(ii); and

   ·     identifies an occupation that has the same 4-digit occupation unit group as the occupation carried out by the nominee (r.5.1993)(a(iii)(B)).

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

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

1. 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.

2. The Department’s records indicate that the applicant had approval as a standard business sponsor for the period 25 August 2016 to 25 February 2018.  The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee Mr Chaikijkosi, and nominated him for a Subclass 457 visa.   The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.

3. The Tribunal is satisfied on the basis of the material before it, including the business’ registration documents, activity statements, taxation returns and other oral and documentary evidence about the business’ activities that the nominator is actively and lawfully operating a business in Australia.

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

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

1. 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.

2. The Tribunal applicant has produced evidence that the nominee was sponsored successfully by the applicant for a Subclass 457 visa, working full-time as the manager of the applicant’s restaurant from 3 June 2014 (although employed by the previous owner from 2014 to 2016) and has continued to be employed since that date.

3. Therefore, the Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 visa for at least two years in the three year period immediately before this nomination application was made. 

4. 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)

1. 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.

2. The Tribunal has had regard to the employment contract (dated 30 June 2019) between the applicant and nominee.  The contract confirms the nominee will be employed on a full-time basis for at least two years, and that his employment contract does not expressly exclude the possibility of extending the period of employment.

3. The Tribunal has had regard to the documents provided on review, including current financial statements, business activity statements, payroll summary and PAYG statements for the nominee.  The Tribunal has also considered written submissions provided by the applicant, dated 30 August 2017 and 26 July 2019.

4. The applicant operates a Thai restaurant situated in the Dockland’s precinct in Melbourne.  Although the restaurant has been operating since 2012, the applicant purchased the business in March 2016.  The nominee commenced working in the business as Restaurant Manager in June 2014.  The Tribunal notes that the restaurant is open seven days per week.

5. In her evidence, Ms Wang outlined that the applicant had been operating the restaurant since its purchase of the business in 2016.  During that time, the applicant has extended the opening hours of the restaurant and the number of meals provided to customers.  The restaurant provides both eat-in and take-away meals to patrons.

6. The Tribunal notes that apart from the nominee, the business employs 10 employees, consisting of both full-time and part-time staff.

7. Ms Wang explained to the Tribunal that in the past three years the income generated by the business has steadily increased and that the applicant has had no difficulties in paying its employees’ salaries (including that of the nominee).

8. The Tribunal notes that the applicant’s recent BAS (lodged through the ATO portal) show that for the periods October to December 2018; January 2019 to March 2019 and April 2019 to June 2019 show total sales of $203,286, $219,253 and $226,591 respectively.  These figures are consistent with those provided in the applicant’s taxation return for the year ended 30 June 2018.  The Tribunal notes that this taxation return shows that the applicant has made a profit for the year of over $20,00 and although this is a modest amount, the Tribunal is satisfied that the applicant’s financial statements, taxation return and payroll advice demonstrate that the applicant is operating a financially viable business.

9. The Tribunal is further satisfied that the applicant’s continued employment of the nominee since it purchased the business is indicative of its ability to meet its obligations to pay its employees.

10. The Tribunal acknowledges that in the first few months of its operation of the business, the applicant made a loss of approximately $25,000.  However, the Tribunal accepts Ms Wang’s evidence and the applicant’s written submissions that this is attributable to the applicant’s recent acquisition of the restaurant and the early stages of its operation of the business.  The Tribunal accepts that the information provided by the applicant for the purpose of the review, demonstrates that from the early months of its operation of the restaurant, the applicant’s turnover has continued to increase, as the applicant’s business has become established.

11. Accordingly, the Tribunal is satisfied based on the evidence before it that the applicant has the financial capacity to maintain the nominee’s salary, including the fact that it has been employing the nominee in the position of Restaurant Manager since 3 June 2014 and has been paying his salary since it purchased the business in March 2016.  The Tribunal is satisfied that the nominee will be employed on a full-time basis in the position of Restaurant manager for at least two years.

12. 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)

1. 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.

2. The employment contract and primary application form indicates that the nominee’s base salary is $60,000 exclusive of superannuation.  It is noted on the application form that there is no Australian performing equivalent work at the same location.

3. Salary surveys and other salary data, including from Payscale.com indicates that the base salary for a Café or Restaurant Manager depending on experience is between $47,000 and $68,000 with an average salary of $55,299.  The Tribunal is satisfied based on the information that the nominee’s base salary is within the appropriate range of that normally paid to a Café or Restaurant Manager in Melbourne.

4. The Tribunal is also satisfied that the nominee’s hours of work and leave entitlements are commensurate with those of an Australian citizen or permanent resident in the same occupation.

5. Based on the evidence before it, the Tribunal is satisfied that the terms and conditions applicable to the nominee’s 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.

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

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

1. 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.

2. On the evidence, the Tribunal is satisfied that the applicant fulfilled the commitments made relating to meeting the training requirements and complied with the applicable sponsorship obligations relating to the training requirements during its most recent period of approval as a sponsor.

3. Accordingly the Tribunal finds that the requirement in r.5.19(3)(f) is met.

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

1. 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.

2. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.

3. Accordingly the requirements of r.5.19(3)(g) are met.

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

1. 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.

2. There is no information before the Tribunal to indicate that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or of each of the States or Territories in which the applicant operates its business.

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

4. 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

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

Amanda Mendes Da Costa
Member

ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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.