Jai Shree Krishn Pty Ltd ATF The Trustee for Patel Brothers Family Trust (Migration)

Jai Shree Krishn Pty Ltd ATF The Trustee for Patel Brothers Family Trust (Migration) [2022] AATA 4511 (8 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Jai Shree Krishn Pty Ltd ATF The Trustee for Patel Brothers Family Trust
REPRESENTATIVE:  Mr Vikram Jeet Singh (MARN: 1572276)
CASE NUMBER:  1919214
HOME AFFAIRS REFERENCE(S):          BCC2017/2098087
MEMBER:George Hallwood
DATE:8 December 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 08 December 2022 at 11:09am
CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – wholesaler – training obligations – slightly less than required amount paid – reasonable to disregard if aggregate expenditure commensurate with total commitment – initial payment made just before start of most recent period as standard business sponsor – ‘recent expenditure’ – joint hearing with review of visa refusal – director of applicant and nominee not related despite same surname – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 376
Migration Regulations 1994 (Cth), rr 2.87B, 5.19(3)(f)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 June 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 14 June 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(3)(f) of the Regulations because they were not satisfied the applicant had fulfilled their training obligation under reg 2.87B.
Mr Urvesh Patel appeared before the Tribunal on behalf of the applicant, Jai Shree Krishn Pty Ltd ATF The Trustee for Patel Brothers Family Trust, on 7 December 2022 to give evidence and present arguments. As this was a combined hearing with that of the associated nominee, Mrs Smitaben Bhaumik Patel case number 1923703 also attended the Tribunal to give oral evidence.
The applicant was represented in relation to the review.
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 reg 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: reg 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.
The Tribunal has considered the documentary evidence provided including the nomination application and documents provided with that application. Based on this information the Tribunal finds the application:
·     Was made on the form 1395 (Internet) and accompanied with the prescribed fee: reg 5.37;
·     Included a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s 245AR(1);
·     Identifies Mrs Patel who holds a Subclass 457 visa granted on the basis of satisfying cl 457.223(4); and
·     Identifies the occupation, Wholesaler 133312, in relation to the position of Wholesaler and has the same 4 digit code 1333 as the occupation carried out by the Subclass 457 visa holder.
Given the above findings, the requirement in reg 5.19(3)(a) is met.
Status of the nominator: reg 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.
The applicant was a standard business sponsor for subclass 457 visas from 12 November 2014 until 12 November 2017. Mrs Patel was the holder of a subclass 457 visa (14 May 2015 to 14 May 2019) and was identified in the nomination that is the subject of this hearing, made by the applicant under s 140GB of the Act. The applicant was approved for standard business sponsor for 400 series visas on 14 June 2022.
The applicant has provided ASIC extracts, company financial statements, lodged tax returns and BAS statements in support of the applicant actively and lawfully operating a business in Australia.
At the hearing Mr Urvesh Patel told the Tribunal that the applicant trades as Om Packaging, an Australian owned and operated online retail and wholesale hospitality supplies business and food packaging supplier. The company was registered and commenced trading in 2013 and the business currently operates from Greenfields South Australia.
Mr Patel told the Tribunal that the business currently employs 7 part time and 2 full time staff plus the Director, Mr Urvesh Patel who is now paid by the business but was not paid a wage for the first three years of the business operation. The business now operates two warehouses in Victoria and Mr Patel spends much of his time operating these.
Based on the information provided by the applicant, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia.
The nominator was not granted the most recent business sponsorship on the basis of meeting either reg 1.20DA, reg 2.59(h) or reg 2.68(i).
Given the above, the requirement in reg 5.19(3)(b) is met.
Previous employment of the nominee: reg 5.19(3)(c)
Broadly speaking, to meet the requirement in reg 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.
Mrs Smitaben Patel told the Tribunal she has worked as a Wholesaler full time in Australia with the nominator since early June 2015 which is two of the three years preceding the nomination application. This was the position for which she held a subclass 457 visa. The Tribunal is satisfied this is the case.
Given the above findings, the requirement in reg 5.19(3)(c) is met.
Future employment of the visa holder: reg 5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 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.
A letter of engagement dated 10 May 2021, the latest contract of employment, states that Mrs Patel will be employed on a full time basis for at least two years. The contract’s terms and conditions do not expressly preclude the possibility of an extension beyond two years.
Given the above findings, the requirement in reg 5.19(3)(d) is met.
No less favourable terms and conditions of employment: reg 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 letter of engagement dated 10 May 2021 contains a standard set of Australian terms and conditions and sets remuneration at $63,232 plus superannuation. The contract refers to the minimum award rate as set out in the Storage Services and Wholesale Award 2010.
The Tribunal is satisfied that the remuneration and set of terms and conditions are 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.
Accordingly, the requirement in reg 5.19(3)(e) is met.
Training commitments and obligations: reg 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.
In this matter, the approved standard business sponsorship (SBS) was from 12 November 2014 until 12 November 2017.The instrument IMMI 13/030 relevantly specifies the training benchmarks and requirements relating to training.
The training benchmarks in the instrument contain two options: recent expenditure by the business to the equivalent of at least 2% of payroll in payments to a relevant industry training fund; or, recent expenditure by the business of at least 1% of the payroll of the business in the provision of training to employees of the business.
The instrument specifically excludes training expenditure from counting towards the benchmark where it is training that is: only undertaken by persons who are not Australian citizens or permanent residents; or only undertaken by persons who are principals in the business or their family members.
The letter from the accountant, Laxman Mehra, dated 8 August 2022 sets out the wages paid for each of the three years from 12 November 2014 through to 11 November 2017. These amounts are: $41,820 in the first year from 12 November 2014 to 11 November 2015; $64,371.50 in the second year from 12 November 2015 to 11 November 2016; and $163,187.50 in the third year from 12 November 2016 to 11 November 2017.
The applicant stated that they believed a payment they had made of $500 to TAFE NSW on 31 October 2014 met their requirements for the first year, however, this was prior to the approval of the SBS. The receipt from TAFE NSW records that the payment is for “457 Temporary Business (Long Stay) Visa Training Benchmark A Contribution”.
The applicant provided copies of training invoices for the period 12 November 2014 through to 11 November 2017 which includes: $700 on 29 January 2016 for a staff member (an Australian citizen) to attend Health and Safety Incident Management training with Maple Learning Services; $803 on 6 March 2017 for a staff member (a permanent resident) to attend Conducting useful market research training with Maple Learning Services; and, $1,000 on 10 October 2017 for a staff member (a permanent resident) to attend Work effectively in diversity training with Savvas International Academy.
Mr Patel told the Tribunal that the applicant chose to use the second option of 1% of the payroll of the business in the provision of training to employees of the business (after the mistaken experience in the first year). The applicant accepts that they have not paid the correct amount at the correct time in the first year. The total amount of payments required across the three years is $2,693.79 using the 1% method. During the prescribed period the applicant paid a total of $2,503 or $190.79 less than the required amount.
Mr Patel told the Tribunal, and the Tribunal is satisfied, that none of the training was for the principals of the business or their family members. Documents provided show that the training participants were either Australian citizens or permanent residents.
The Tribunal is satisfied the applicant failed to comply with their applicable sponsorship obligations relating to the applicant’s training requirements during the applicant’s most recent sponsorship approval.
The Tribunal now considers whether it is reasonable to disregard the requirements.
The Tribunal may form the view that it is reasonable to disregard reg 5.19(3)(f)(i) if the nominator has an aggregate expenditure on training over the term of their most recently approved sponsorship commensurate with the total training commitment for the period.[1] As has been discussed, the applicant falls short by $190.79 of meeting this threshold.
[1] Departmental policy re reg 5.19(3)(f) – 9.2.6.2 Reasonable to disregard
It is clear from the evidence provided that the $500 paid to TAFE NSW was intended to be a component of the training expenditure for this application. The Tribunal is satisfied that, given the $500 was paid within a fortnight of the period, and the instrument IMMI 13/030 refers to a requirement of “recent expenditure”, the amount of $500 can be considered toward the applicant’s commitment toward the training requirements of the period. Together with this $500 the aggregate amount exceeds the training requirement.
Accordingly, the requirement in reg 5.19(3)(f) is met.
No adverse information known to Immigration: reg 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 regs 1.13A and 1.13B.
The Tribunal has received adverse information known to the Department in relation to both the applicant and the nominee. In both cases the information has been provided to the Tribunal under a s376 certificate where the disclosure of the information would be contrary to the public interest because the information has been provided to the Department in confidence and s375A does not apply.
At the hearing the Tribunal provided the gist of aspects of the adverse information that may have consequences for this application and that had not been dealt with by the applicant in their application or subsequent submissions. In particular, the Tribunal asked Mr Patel whether he was related to the nominee, husband or family. The Tribunal also asked if Mr Patel was related to Mr Piyush Patel or any of the other employees that had training paid for by the applicant during the period from 12 November 2014 to 11 November 2015. Mr Urvesh Patel told the Tribunal under oath that he was not related to Mrs Smitaben Patel, Mr Bhaumik Patel, Mr Piyush Patel or the other recipient of training during the relevant period.
The Tribunal took into consideration that the Department has issued the applicant with approval for standard business sponsor for 400 series visas on 14 June 2022, a number of years after the Department obtaining the adverse information.
Having considered the Department’s information and their actions in granting the applicant a further standard business sponsorship, the Tribunal is satisfied with Mr Urvesh Patel’s evidence under oath that he is not related to the nominee or her family. For this reason, the Tribunal is satisfied that it is reasonable to disregard that information.
Accordingly, the requirement in reg 5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: reg 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.
At the hearing, Mr Urvesh Patel told the Tribunal that the applicant had a satisfactory record of compliance with Commonwealth and State laws relating to workplace relations. The Tribunal has no evidence before it that this is not the case.
Accordingly, the requirement in reg 5.19(3)(h) is met.
CONCLUDING PARAGRAPH
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 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.
George Hallwood
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.

[2022] AATA 4511

8 December 2022

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