HI-TEK FITTINGS PTY LTD (Migration)

[2018] AATA 503

HI-TEK FITTINGS PTY LTD (Migration) [2018] AATA 503 (5 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  HI-TEK FITTINGS PTY LTD

CASE NUMBER:  1717850

DIBP REFERENCE(S):  BCC2017/603737

MEMBER:R. Skaros

DATE:5 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 March 2018 at 8:21am

CATCHWORDS

Migration – Standard business sponsor – Approval of the nomination of a position – Café or Restaurant Manager – Nominee has been employed full time – Favourable work conditions – Applicant committed to meeting the training requirements

LEGISLATION

Migration Act 1958, ss 140GB, 245AR, 360
Migration Regulations 1994, rr 1.13A, 1.13B, 1.20DA, 2.59, 2.68, 5.19 Schedule 2 cl 457.223

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 25 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 14 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 that the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the delegate was not satisfied that the nominee would be employed on a full time basis in the position for at least two years due to the limited evidence provided regarding the nominator’s financial capacity.

5. In response to a request for current information, the applicant provided to the Tribunal supporting documentary evidence regarding its business’ operations, financial position, employment of the nominee and the training requirement.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

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. On the basis of the information in 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.

12. The application for approval identifies Valentina Strambaci who, according to Departmental records, has held a Subclass 457 visa since 3 November 2014 that was granted on the basis of satisfying subclause 457.223(4) of Schedule 2.

13. The occupation identified in the application is Café or Restaurant Manager (141111). The Tribunal is satisfied on the basis of the employment documents for Ms Strambaci that the occupation identified is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is accordingly satisfied that this occupation carries the same 4-digit code (1411) as the occupation carried out by the nominee whilst she held the Subclass 457 visa. 

14. On the basis of the above, the Tribunal is satisfied that the requirements in r.5.19(3)(a) are 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 Ms Strambaci 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 Tribunal is satisfied on the basis of the material before it, including the business’ registration documents, organisational chart, activity statements, payroll activity information and other information about the business’ activities that the nominator is actively and lawfully operating a restaurant business t/a St Clements Estate/Lillino Bar & Tratoria in Rothbury in the Hunter Region of NSW Australia.

18. On the evidence before it, the Tribunal is satisfied that the requirements in r.5.19(3)(b) are 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, r.5.19(3)(c)(i) is the relevant provision. The nomination was lodged on 14 February 2017. The nominee was granted the Subclass 457 visa to work in the nominated occupation of Café and Restaurant Manager on 13 November 2014. The Tribunal has received ATO notice of tax assessments for the nominee for the 2014, 2015, 2016 and 2017 financial years and copies of her bank account statements confirming that she has been in receipt of weekly wages from ‘St Clements Est’. The Tribunal has also had regard to the payroll activity summary document on the Department’s file, which confirms the nominee’s employment with the nominator, and to the organisational chart which notes the position of Café and Restaurant Manager in the business.

21. On the totality of the evidence, the Tribunal 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 2 years in the 3 year period immediately before this nomination application was made. The requirements in r.5.19(3)(c)(i) have therefore been met.

22. Given the above findings, the requirement in r.5.19(3)(c) is therefore 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. The Tribunal has had regard to the signed contract of employment for nominee dated 2 February 2017 which was provided to the Department with the visa application. The contract, which sets out the terms and conditions of employment, indicates that the period of employment is for three years full time from the date of the visa grant. 

25. The delegate was concerned about the nominator’s financial capacity to employ the nominee due to the limited verifiable financial information. The Tribunal has had regard to the documents provided on review, including the nominator’s PAYG Summary statements, the extract from its 2015 and 2016 financial statements and the manually lodged activity statements, and 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 2014.     

26. 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. The requirement in r.5.19(3)(d) is therefore met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

27. 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.

28. The employment contract indicates that the nominee’s base salary is $64,480 plus superannuation. It was noted in the application form that there is no Australian performing equivalent work at the same location. Salary surveys and other salary data, including from Payscale.com  and Jobsoutlook.gov.au, indicate that the base salary for Café and Restaurant Managers, depending on experience, is between $46,500 and $65,000. The Tribunal is satisfied on the basis of this information that the nominee’s base salary is within the appropriate range of that normally paid to an experienced Restaurant and Café Manager in NSW.

29. 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.

30. Given the above, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.

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

31. 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.

32. The applicant’s most recent sponsorship approval was on 8 January 2013 for a period of 3 years. The representative submitted that the nominator did not employ 457 visa holders prior to June 2014.

33. The Tribunal has received documentary evidence regarding the expenditure of at least 1% of the business’ payroll on the training of Australians for the period between 2015 and 2017.

34. Based on the PAYG payment summary statement, the activity statements and the payroll activity summaries the Tribunal is satisfied that the nominator’s gross payroll for the financial years ended 30 June 2015, 2016 and 2017 was $269,834, $322,918 and $388,748 respectively. The Tribunal has calculated 1% of these amounts to be $2698, $3229 and $3887 respectively.

35. The Tribunal has received documents indicating the employment of Australians, Amy Fong and Erik Kemi, as apprentices undertaking the Certificate III in Hospitality through TAFE NSW Hunter Institute together with their payroll records. The apprenticeship documents indicate that Erik Kemi’s apprenticeship was between 13 March 2015 and 12 August 2017, and Amy Fong’s apprenticeship commenced on 11 February 2016 for a period of 3 years. Payroll activity summaries for the apprentices indicates that Erik Kemi’s wages were $8000 in the 2015 financial year, $19,597 in the 12 months period ending 1 February 2017 and $24,321 in the 2017 financial year. Amy Fong’s wages were $29,000 for the period from 1 July 2016 to 31 July 2017.

36. The documentary evidence regarding the employment of apprentices was not well presented in that did not provide a breakdown of the wages paid to apprentices for each applicable year of the last sponsorship approval. While the Tribunal was not able to decipher with any form of accuracy the amounts paid to the apprentices in each relevant year, the evidence nevertheless indicates that the nominator employed apprentices for the relevant 12 months period during which it was an approved sponsor and employed a primary 457 visa holder. The wages paid to the apprentices exceeded 1% of the business’ payroll as calculated above.

37. The Tribunal is satisfied on the evidence before it that the applicant has fulfilled commitments made relating to meeting the training requirements during the relevant period.

38. In addition to fulfilling the commitment relating to training, the Tribunal is also satisfied that the applicant has also kept the required records showing that they have complied with their sponsorship obligation relating to the training requirement.

39. On the evidence before it, the Tribunal finds that the requirements of r.5.19(3)(f) are met.

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

40. 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.

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

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

42. 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.

43. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws. Accordingly, the requirement in r.5.19(3)(h) is met.

    Conclusion

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.

    R. Skaros
    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.