HL & JM TRADING PTY LTD (Migration)

[2020] AATA 97

HL & JM TRADING PTY LTD (Migration) [2020] AATA 97 (21 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  HL & JM TRADING PTY LTD

CASE NUMBER:  1730918

DIBP REFERENCE(S):  BCC2017/931674

MEMBER:Andrew McLean Williams

DATE:21 January 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 21 January 2020 at 12:13pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Café or Restaurant Manager – terms and conditions of employment – ‘no less favourable’ – significantly higher salary than those with considerable experience and seniority – 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 23 November 2017, rejecting 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 had applied for approval on 9 March 2017. The requirements for the approval of the nomination of a position in Australia are to be found in r.5.19 of the Regulations, which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)), and a Direct Entry nomination stream (r.5.19(4)). 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, the application must be refused: r.5.19(5).

3. In this case, the applicant applied for approval by seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application, on the basis of the delegate finding that the applicant’s nomination did not satisfy r.5.19(3)(e) of the Regulations, because the nominee - Mr Tan Khan Nguyen - is paid a salary that is significantly higher than the rate of salary ordinarily paid to Café or Restaurant Managers (ANZSCO 141111), including those with considerable experience and seniority. The delegate found that the nominee was being paid a salary that was not “commensurate with equivalent terms and conditions that are or would be paid to an Australian worker or permanent resident doing the same work at the same location”. Here, it is to be noted however that this is not the requirement expressed in sub-regulation 5.19(3)(e), which requires that the terms and conditions of employment applicable to the position be “no less favourable” than those that are or would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location.

5. The Tribunal hearing was conducted on 3 December 2019 with the assistance of an interpreter in the Vietnamese and English languages. The applicant, represented by its director Mrs Ha Le, appeared before the Tribunal on 3 December 2019 in order to give evidence and make submissions. The Tribunal also received oral evidence from a Mrs Ma, who is the Executive Chef of the Applicant, as well as from the Nominee, Mr Tan Khan Nguyen.  The Tribunal also received evidence from Miss Vy Thanh (‘Vivian’) Le, who is the 17 year old daughter of the nominee, who is about to commence her final year of high school in 2020.  Vivian gave evidence in relation to her desire to go to university and about the deleterious impact on her education and that of her younger brother, who is only in year ,  in the event that they were to be required to return to Vietnam.  These matters are not relevant to the assessment criteria under sub-regulation 5.19(3), such that the Tribunal is unable to have any regard for the evidence given by Vivian.   

6. The applicant was represented in relation to the review by its registered migration agent, Mr  Abu Siddque. Mr Siddque attended the Tribunal hearing, and had arranged for the lodgement of written submissions, prior to the hearing.

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 as set out in r.5.19(3), which is now 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 be in the approved form, 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. The Application for Employer Nomination for a Permanent Appointment was made by the applicant on 9 March 2017 on-line, by means of the Department of Immigration and Border Protection web portal, in the approved form. The application identifies Mr Tan Khanh Nguyen, a person who holds a Subclass 457 visa granted on the basis of satisfying cl.457.223(4); and identifies the occupation of café or restaurant manager for Mr Nguyen, in relation to the nominated position. This is an occupation listed in ANZSCO that has the same 4 digit code (141111) as the occupation carried out by Mr Nguyen. The letter of acknowledgement automatically generated by the department for the on-line application specifies that the application had been accompanied by the necessary fee. The on-line application form also contains the required declaration certifying that the applicant has not engaged in conduct in relation to this nomination in contravention of s.245AR of the Migration Act 1958.

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

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

12. 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.

13. In this case, the applicant was the standard business sponsor (‘SBS’) who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act; and is actively and lawfully operating a business in Australia under the trading name of Pho Vietnamese Kitchen.  The applicant was not granted its most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

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

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

15. 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.

16. The nominee, Mr Tan Khanh Nguyen meets the first of these criteria, having been granted a 457 visa for the employment position he currently occupies and having been employed on a full-time basis by the  applicant in that position for more than two years prior to the application

17. 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):

18. 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.

19. The Applicant informed the Tribunal that Mr Nguyen was brought to Australia from Vietnam because of his considerable experience in running multi-venue Vietnamese restaurants.  At the time of his employment in April 2014, the applicant had only one restaurant, located in Sunnybank.  Mr Nguyen assisted the applicant to overhaul their business model, including by making substantial changes to the menu, branding and decor, and manner of restaurant operations, in order to make it suitable for expansion into a franchised operation.  A second restaurant was opened in 2015.  By 2017, the chain had been expanded to four franchised outlets, and the intention is to continue to expand the Pho Vietnamese Kitchen brand at the rate of one outlet, per year, with a concentration on major shopping centres.    The applicant informed the Tribunal that Mr Nguyen is integral to these plans and that he has been highly instrumental in the expansion to date, and that the applicant now has approximately 70 employees.  The intention is that Mr Nguyen will continue to be employed by the applicant on a full-time basis permanently, and thus for more than two years.  There are no terms or conditions in Mr Nguyen’s employment that expressly preclude the possibility of employment for beyond two years.

20. 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):

21. 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.

22. Mr Nguyen receives an annual salary of $181,012 for his role as a multi-venue restaurant manager, together with superannuation and ordinary leave entitlements. This annual salary is considerably higher than is that ordinarily paid to restaurant managers when assessing salaries on a market basis. The requirement in r.5.19(3)(e) is however that the terms and conditions be “no less” favourable. Mr Nguyen’s terms and conditions are here more favourable than are those generally paid to Australian citizens or permanent residents performing equivalent work. In financial year 2018, the applicant had a business turnover of $3,431,727.15, with a total wages expense of $827,451.15. Correspondence from the applicant’s accountant dated 18 November 2019 expresses the view that the applicant can comfortably afford to bear all necessary wage expenses for Mr Nguyen. Accordingly, the requirement in r.5.19(3)(e) is met.

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

23. 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.

24. The applicant’s most recent SBS approval was conferred on 7 September 2016, expiring on 7 September 2021.  In its materials before the Tribunal, the applicant has produced invoices and receipts for training indicating that it has met its necessary training obligations.

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

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

26. Regulation 5.19(3)(g) requires that there be 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. 

27. No adverse information known to the Department has been brought to the attention of the Tribunal about the applicant or any person associated with the applicant.

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

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

29. 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.

30. No information has been drawn to the attention of the Tribunal to indicate that the applicant has other than 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 

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

32. 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

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

    Andrew McLean Williams
    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.