JP RESTURANTS AND CATERING PTY LTD (Migration)

[2021] AATA 4694

JP RESTURANTS AND CATERING PTY LTD (Migration) [2021] AATA 4694 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  JP RESTURANTS AND CATERING PTY LTD

CASE NUMBER:  1813413

HOME AFFAIRS REFERENCE(S):          BCC2017/2097744

MEMBER:Susan Reece Jones

DATE:25 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 25 October 2021 at 4:00pm

CATCHWORDS
MIGRATION–nomination – Cafe or Restaurant Manager – Temporary Residence Transition nomination stream – turnover of the applicant is growing – nominee performed the nominated occupation on a full-time basis – business was able to financially support the position – financial capacity to employ the nominee full-time for a minimum of 2 years – No less favourable terms and condition of employment –applicant lawfully operating a business in Australia–decision under review set aside

LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR, 359
Migration Regulations 1994, rr 1.13, 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 Home Affairs on 19 April 2018 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 June 2017. The requirements for the approval of the nomination of a position of Cafe or Restaurant Manager (ANZSCO: 141111) in Australia are 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 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) of the Regulations because the applicant did not demonstrate the financial capacity to pay the full-time salary for the nominated position for at least 2 years.

5. The Tribunal received a review application on 9 May 2018. It was signed on behalf of the applicant by Mr Harpreet Singh Mangat, the applicant’s director. The review application was accompanied by a copy of the delegate’s decision.

6. On 9 November 2020, the Tribunal wrote to the applicant’s representative Mr Etienne De Villiers Hugo, of Teleo Immigration Specialists, under s359(2) of the Migration Act 1994 (the Act) inviting them to provide the Tribunal with further information in support of this application.

7. In response to the Tribunal’s s359(2) request, on 23 November 2020, the applicant requested an extension which the Tribunal provided until 7 December 2020.

8. On 7 December 2020, the representative requested the Tribunal provide a further extension to provide information. The representative stated that the applicant had informed the representative that “due to significant work pressures, their Accountant has not yet finalised all financial documentation nor has the applicant been able to settle the other information requested”.  

9. On 8 December 2020 the Tribunal agreed to an extension until 14 December 2020.

10. On 14 December 2020 the applicant submitted the following documents:

    • ASIC Company Statement 2018, 2019
    • ASIC Current & Historical Company Extract dated 9 December 2020 
    • Company Tax Return for 2019, 2020  
    • Business Activity Statements for 2018, 2019, 2020
    • Financial Statements 2019, 2020  
    • Organisational Structure Chart
    • Position Description for Restaurant Manager
    • Nominee Employment Agreements: dated 28 December 2015, 31 May 2017, 1 June 2019 and 1 December 2020
    • PAYG Payment Summaries 2014 to 2019

    ·Notice of Assessments: 2014 to 2019

    ·Summary of Training Expenditure for standard business sponsor approval period

    ·Photographs of the restaurant taken on 5 and 6 December 2020

    ·NAB bank Statements dated September 2020

11. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

12. On behalf of the applicant, its director Mr Harpreet Singh Mangat, appeared before the Tribunal on 23 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Baljit Kaur, the nominee.

13. The applicant was represented in relation to the review by its registered migration agent,             Mr Etienne De Villiers Hugo, of Teleo Immigration Specialists.

14. At hearing the applicant requested additional time to 14 May 2021 in which to provide additional evidence in support of this application. Following the hearing, on 14 May 2021, the applicant provided further evidence in support of its application namely,  

    • Financial Statements 2018, 2019, 2020
    • ATO Tax returns 2018, 2019, 2020
    • BAS 2018, 2019, 2020
    • BAS from July 2020 to March 2021
    • Draft Profit and Loss statement: July 2020 to April 2021
    • Statutory declaration and undertaking from the company’s director, Mr Harpreet Singh Mangat
    • Support letter from the applicant’s Accountant

15. The Tribunal wrote to the applicant on 6 October 2021 and requested that the applicant provide the following additional evidence by 13 October 2021 in support of its case including:

    • Financial Report for year ending 2020
    • Lodged and signed ATO Company Tax return 2021
    • BAS: October – December 2020; April – June 2021
    • PAYG and ATO Notice of Assessment for the nominee 2021
    • Evidence of superannuation payments paid to the nominee and the nominee’s superannuation statements.

16. On 13 October 2021, the applicant provided the Tribunal received the following documents:

    ·Financial Statement 2021 (unsigned) for applicant director’s related entity, JSI Group (ABN 44 612 468 578)

    ·Lodged and signed ATO Company Tax Return and Financial Report: 2020

    ·BAS: October to December 2020; April to June 2021

    ·Nominee PAYG and ATO Notice of Assessment: 2021

    ·Submission from representative

    ·Statutory declaration of applicant director

17. 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

18. 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)

19. 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.

20. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

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

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

22. 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.

23. The Department’s records indicate that the applicant was approved as a standard business sponsor 16 August 2013 to 16 August 2014, 23 December 2014 to 23 December 2017, and most recently, from 6 February 2018 to 6 February 2023.

24. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mrs Baljit Kaur, and nominated her for a subclass 457 visa. The Tribunal is further satisfied that in its most recent sponsorship approval, the applicant is not operating a business overseas.

25. The applicant operates a restaurant known as “The Melting Chilli”, in Umina Beach, (Woy Woy) on the NSW Central Coast.  The identified occupation in the application is Cafe or Restaurant Manager (ANZSCO: 141111), with a base salary of $54,000.

26. In relation to whether the applicant is actively and lawfully operating a business in Australia, the applicant has provided evidence of its current ASIC and ABN registration and its financial statements and BAS Statements to 2021, which show that it is actively trading. The Tribunal is satisfied based on the material before it, including the business' registration documents, BAS, payroll activity information and other information about the business' activities that the nominator is actively and lawfully operating a business in Australia.

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

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

28. 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.

29. The Tribunal is satisfied on the evidence before it that:

    ·the nomination was made on 14 June 2017 for the position of Café or Restaurant Manager ANZSCO 141111;

    ·the relevant 3 year period is therefore 14 June 2014 to 14 June 2017 ;

    ·the nominee was initially employed by the applicant 3 October 2013 while the holder of a 457 visa;

    ·the nominee applied for a subclass 457 visa on 29 September 2017 on the basis of her nomination by the applicant and was granted a Bridging visa A on that date;

    ·she was granted a subclass 457 visa on 3 October 2013 which was valid until 3 October 2017 and the most recent grant was on 7 May 2018, valid until 7 May 2020; and

    she had therefore worked for the applicant in the nominated position for approximately 3.8 years prior to the nomination, and for 3 years in the 3-year period immediately prior to the nomination application being lodged.

30. 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)

31. 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. The Tribunal is satisfied that the applicant is required to meet this criterion.

32. The Department refused the nomination because the applicant did not show a financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years. The Department stated that a simple statement from the applicant that they can provide the 2 years of full-time employment is not sufficient evidence of the employer's ability to comply with this requirement.

33. The applicant employs 7 employees, with 2 full-time workers (the nominee and the restaurant Chef), 5 part time employees. 5 of the 7 employees are Australian citizens or Permanent Residents. 

34. The applicant provided the Tribunal with a submission which stated that: 

    ……..Our business has been very successful, especially in the last 3 years as we have grown and become more popular in the industry. We had numerous amounts of customers due to Umina Beach being the centre of attraction for many tourists. Since Umina attracts visitors from all around the world who have no option but to opt for fast food or restaurant food, it allows us to have successful business periods as we are located on a walking distance from the beach, allowing more exposure to our restaurant, hence, more customers. The Melting Chilli restaurant has also done excellently in the past few years because we are one of the few restaurants in the area who possess a full liquor licence and are able to cater for many customers due to our size. In addition, we are also proud to be delivering food to many hotels around that area including Mantra and Ocean Beach Hotel……

35. In relation to COVID-19, the applicant director Mr Mangat explained to the Tribunal that due to the multiple lockdowns, the restaurant was forced to close for an extended term in 2020 and 2021. Since re-opening, the restaurant has had to rely on take away services, which now makes up for approximately 80% of the applicant’s revenue. The applicant also decreased its opening hours and is, due to COVID-19 requirements, obligated to reduce seating numbers due to density restrictions.

36. As reflected in the applicant’s Financial Statements set out below, the applicant’s business has been heavily impacted by shutdowns due to COVID-19. However, the applicant submitted to the Tribunal that the applicant  “anticipated that the business turnover would grow once it could reopen fully and adjust …..we are planning to increase our operating hours so we can cater more customers, whilst maintain and respecting the social distancing rules in place…”

37. The Tribunal’s analysis of the applicant’s financial evidence shows as follows:

$	2017	2018	2019	2020
Total income	373,975	463,900	283,278	75,650
Salary	203,214	265,593	178,813	85,614
Superannuation	19,271	25,191	16,987	6,589
Total assets	86,821	44,633	9,585	92,531
Total liabilities	158,621	114,636	(147,913)*	150,397

* shareholder loan of $147,913

1. As the BAS assessment appears to indicate that between April and September 2020, the applicant did not operate the restaurant, however paid the employees.

2. The applicants’ director Mr Mangat further submitted to the Tribunal that,

   “Although I am confident that my business will thrive in the upcoming months (based on our success over the years), I still want to address that as a business owner, I have enough money personally in my bank account to pay all my employees even if the business could not. I, as a Director of the business also commit to ensure all our employees’ salaries will be paid in the future, even if my business cannot afford it. We hope that the tribunal can understand a difficult situation for us as an Australian employer and share our confidence for the future growth for our business, similar to the success our business has had for numerous years before the pandemic. For this reason, more than ever, we need a reliable employee such as Baljat [the nominee] to remain employed in our team on a permanent basis as soon as possible.”

3. The applicant provided a submission from Accountants Mr Greg Olson (Partner) and Avinesh Ram (Partner) of Argo Accounting & Business Services of Blacktown, NSW dated 17 May 2021 which stated as follows:

   Letter in support for JP Restaurants & Catering Pty Ltd 

   I confirm that we act as accountants for JP restaurants & Catering Pty Ltd.
   We are aware that the company is a review applicant at the AAT to challenge an unsuccessful nomination application for the position of restaurant manager, located at Umina Beach, NSW. On request by the tribunal, we have provided the accurate historical and current financial figures and text documents for the company. In our view there is a direct link between the closure for the restaurant since March 2020 until approximately September 2020 and the dismal trading figures reported for the financial year ending 30 June 2020.
   The tribunal will note from the financial records that there is money owing to the ATO, which we understand the member raised as a concern. We can confirm that in our experience ATO payment plans are not uncommon in this day and time (also considering covid19).
   There are a number of businesses and individuals who have payment plan with ATO.
   Although we have not negotiated a payment plan since we became the accountants, in my understanding JP restaurants & Catering Pty Ltd has made massive payments towards reducing the debts. (see attached ICA statement – Cr side). In addition, the cash boost and all other government payments were not withdrawn by the business, but left to
   reduce the debts in the business. I am instructed that the regional location for the restaurant at Umina beach had a significant impact on its ability to trade last year, given that without the tourism customers, the local community may have been under particular financial strain not
   to spend money on restaurants, even once trading was again allowed after September 2020. I also understand that it was not an option to offer a ‘takeaway’ service, as many restaurants
   in Sydney did, because of a much lower population density. Commercially, it may simply not have made sense to open the entire kitchen for a small number of takeaway meals.
   Although I cannot make a future prediction regarding future profitability for the company, naturally the financial position for the company will be determined by the operations and commercial decisions made in this business. I can, however, confirm that the business trading has been slowly picking up since Q2 and Q3.

4. The Tribunal notes the BAS of the applicant show as follows:

Date	Sales income $	Salaries $
July – Sept 2017	145,783	65,182
October - December 2017	136,933	65,792
TOTAL	282,716	130,974
Jan   – March 2018	139,350	66,229
April  - June 2018	82,870	68,390
July – Sept 2018	85,292	14,125
October - December 2018	84,651	13,750
TOTAL	392,163	162,494
Jan   – March 2019	85,657	13,631
April  - June 2019	56,006	13,301
July – Sept 2019	33,608	7,953
October - December 2019	8,346	10,480
TOTAL	183,617	45,095
January- March 2020	6,627	7,998
April – June 2020	Nil	20,300
July – Sept 2020	Nil	29,915
October - December 2020	26,475	19,448
TOTAL	33,102	77,661
January- March 2021	44,908	26,394
April – June 2021	45,457	26,555
TOTAL	n/a	n/a

1. The Tribunal appreciates that the applicant is located in a small town reliant upon tourism and that COVID-19 has severely impacted the travel and restaurant sectors which, the Tribunal acknowledges, was entirely unforeseen and outside of the applicant’s control.  The applicant director Mr Mangat told the Tribunal that the applicant initially attempted to generate revenue by take away and delivery orders. However, once the stricter COVID-19 lockdowns were imposed, the applicant chose to close the restaurant completely.

2. Mr Mangat and the applicant’s Accountant submitted that the applicant is attempting to “overcome” its losses and is “regaining momentum”, as evidenced by the applicant’s performance since October 2020 and the Tribunal notes that the BAS since October 2020 to 2021, shows that the turnover of the applicant is growing.

1. The applicant has repeatedly submitted to the Tribunal that Mr Mangat’s “own strong financial standing” “must” be taken into account. The applicant director is according to the submission provided by the representative,

   …..the director and shareholder of multiple companies, in addition to the applicant. The applicant further submitted that Mr Mangat’s company, JSI Group Pty Ltd (ABN 44612468578), is indicative of the high profitability of the business given the turnover for the year ending 31 December 2020 was over $8 million…..

   …..and that the Tribunal:

   ….will now note from the enclosed financial report that an impressively high turnover of $21,970,524.96 has been reported for the year ending 30 June 2021. We submit that this not only reflects the success for the business, but importantly also confirms that Mr Mangat maintains a very strong personal financial position to this day. This has allowed the business as a whole to continue to thrive, despite the adverse impacts of COVID-19 on hospitality businesses in general and the fact that the sponsoring business will undoubtedly be in a position to ensure that all restaurant staff’s wages are paid for (at least) the next four years

2. A statutory declaration from the company’s director, Mr Harpreet Singh Mangat, dated 12 October 2021 states as follows:

   ……This statement reiterates the director’s commitment to this day to invest in his restaurant business and pay its future operational costs, specifically the salary for the nominee, either through his personal funds or money available through his other businesses for at least the next 3 to 4 years.

3. In relation to the Financial Report for the financial year ending 30 June 2021, for the director’s other business, JSI Group Pty Ltd, the agent submitted that –

   The ASIC extract for this company was previously provided to the Tribunal on 14 April 2021, demonstrating that Mr Mangat is one of the directors of this business. The interim Profit and Loss statement which was also given to the Tribunal on the same day listed a turnover of over 8 million dollars for the period between 1 July 2020 to 31 December 2020. The Member will now note from the enclosed financial report that an impressively high turnover of $21,970,524.96 has been reported for the year ending 30 June 2021. We submit that this not only reflects the success for the business, but importantly also confirms that Mr Mangat maintains a very strong personal financial position to this day. This has allowed the business as a whole to continue to thrive, despite the adverse impacts of COVID-19 on hospitality businesses in general and the fact that the sponsoring business will undoubtedly be in a position to ensure that all restaurant staff’s wages are paid for (at least) the next four years

4. The applicant further submitted that due to NSW Government declaring a second lockdown from 26 June 2021 onwards and hence, Mr Mangat decided to once again, cease the restaurant operations from August 2021 to October 2021. From 11 October 2021, the applicant is at the time of decision, able to hold approximately 20-25 customers at any one given sitting.

5. The representative has repeatedly asserted that the Tribunal “must” take into account the “strong financial standing” of the applicant director as an individual as relevant the applicant being able to satisfy regulation 5.19(3)(d)(i). On 13 October 2021, the applicant submitted (unsigned) 2021 Financial Statement of JSI Group (ABN 44 612 468 578) which shows:

   • Revenue: $21,970,525

   ·Salaries & Wages: $773,974

   ·Contract Work: $2,579,959

   • Profit / Loss: ($598,818)
   • Total Assets: $4,806,220
   • Total Liabilities: $5,404,737
   • Net equity: ($598,517)

6. The Tribunal’s is therefore of the view, that the applicant’s other company JSI Group, which has

   • Borrowings: $5,277,971; and
   • Hire Purchase Liability: $6,322,022,

   may trade with a “substantial turnover”; however, it is trading at a loss and the net equity position and liabilities are such that the Tribunal does not accept that the “strong financial standing” of the applicant’s related entity, is as claimed by the applicant’s agent. Moreover,  the Tribunal was provided with no other evidence to substantiate the financial position of JSI Group or whether Mr Mangat is a sole director, and if he is not the sole director, whether he would have the authority or discretion to channel funds from that company into the applicant company. The Tribunal therefore gives little weight to the fact that Mr Mangat has an involvement in another company in assessing whether the applicant company in this case has the financial capacity to employ the nominee on a full time basis for at least 2 years. It has therefore focussed on the financial information relevant to that company.

7. The Tribunal has reviewed the prior Financial Statements of the applicant, to assess the financial capacity of the applicant to comply with the requirements of r5.19(3)(d). The Tribunal has noted the challenges that have confronted all businesses affected by COVID-19 lockdowns – particularly restaurants. The Tribunal has taken into account the applicant’s BAS for 2020 and 2021, and that the applicant has continued to pay the employees of the restaurant, including the nominee. The Tribunal also notes that the nominee’s ATO Notice of Assessments (at paragraph 56 below), shows that the nominee has been paid, albeit at a lower sum than her contract of employment provides for, which the Tribunal acknowledges is due to the COVID-19 lockdowns and shuttering of the restaurant.

8. The Tribunal accepts that the applicant was trading profitably prior to COVID-19 and that the applicant’s managerial decisions since that time have been justifiable given the circumstances of COVID-19. Evidence provided to the Tribunal most recently (October 2021), show that the applicants current financial performance is improving.

9. In addition, the Tribunal has taken into account that the applicant has been paying its employees, and there is no indication that the applicant has defaulted on its employee obligations to date. On that basis, the Tribunal extends the benefit of the doubt and accepts that the applicant will be able to comply with r5.19(3)(d) based on it being on track to return to its pre-COVID trading patterns.

10. The Tribunal is further satisfied that the terms of the current employment contract between the applicant and the nominee offer the nominee full time employment on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

11. 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)

12. 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 Tribunal is satisfied that there is no equivalent Australian employee working in the same role as the nominee within the applicant’s business.

13. The Tribunal is in receipt of three Employment Agreements for the nominee dated 28 December 2015, 31 May 2017, 1 June 2019 and most recently, 1 December 2020, which                   provides for a salary of $54,000 (plus superannuation). The nominee PAYG shows as follows:

    Employee PAYG Summary

$	2015	2016	2017	2018	2019	2020*	2021*
PAYG	53,818	51,687	53,087	53,087	53,326	45,995	45,093

*COVID-19 impacted

1. The Tribunal has consulted a range of sources of information, including:

   • the Payscale website (accessed 18 September 2021) indicates that a Cafe or Restaurant Manager in Australia earns an average salary of $56,873 per annum, with the salary range being from $49,000 and $70,000 annually:

   Restaurant_Manager /Salary 

   • advertisements for a Cafe or Restaurant Manager positions in Umina Beach           listed on Seek.com.au as at 18 September 2021 where a salary range is given is stated to be $25 to $34.99 per hour (or annualised $49,400 to $69,140):

   Café-or-Restaurant-Manager-jobs/in Umina-Beach/NSW

2. From the above, the Tribunal is satisfied that the proposed salary associated with the nominated position is within the salary range of what an equivalent Australian employee would be paid.

3. The Tribunal is further satisfied that the contract of employment dated 1 December 2020, which provides for a salary of $54,000(plus superannuation) for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).

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

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

5. 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.

6. The most recent Standard Business Sponsorship for the applicant commenced on 16 August 2013 to 16 August 2014, 23 December 2014 to 23 December 2017 and most recently, 6 February 2018 to 6 February 2023.

• Specifically, the training requirements applicable for an established business with approval as a standard business sponsor in that period are set out in written instrument IMMI 13/030 as follows:

  • A) recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same or related industry of the business; or
  • B) recent expenditure by the business to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

• IMMI 13/030 provides that expenditure that can count towards Training Benchmark B includes:

  • paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
  • funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
  • employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
  • employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job
  • evidence of payment of external providers to deliver training for Australian

  employees

  • on-the-job training that is structured with a timeframe and clearly identified

  increase in the skills at each stage, and demonstrating:

  • the learning outcomes of the employee at each stage;
  • how the progress of the employee will be monitored and assessed;
  • how the program will provide additional and enhanced skills;
  • the use of qualified trainers to develop the program and set

  assessments; and

  • the number of people participating and their skill/occupation

1. The Tribunal notes that the applicant submitted to the Department, Training Benchmarks payments which evidence that the applicant has complied with its Training Benchmarks A and B obligations.

2. As noted at paragraph 62 above, the applicant was most recently approved as a standard business sponsor from 6 February 2018 for a period of five years to 6 February 2023. The regulation 5.19(3)(f)(i)(A) requires that it “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”. From 12 August 2018, the standard business is no longer required to meet the benchmark training requirement as required previously.

3. The Tribunal acknowledges that whilst the applicant has made Training Benchmarks payments (as noted at paragraph 63 above), since that time, the legislation has been amended. The requirement at the time of the most recent sponsorship approval did not include any training commitments that have to be fulfilled by the applicant thus the sponsorship obligation to provide training payments by the applicant does not apply in this case. In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied.

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

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

5. 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. 

6. The Tribunal has reviewed the Department's records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

7. The Tribunal upon assessment of the applicant’s financial statements, put the issue of payments owed to the ATO by the applicant to director Mr. Mangat, at the hearing. As acknowledged in the submission from Accountants Mr Greg Olson (Partner) and Avinesh Ram (Partner) of Argo Accounting & Business Services of Blacktown, NSW (dated 17 May 2021- refer paragraph 40 above), the applicant has owed – and is repaying - money to the ATO.

8. The Tribunal has considered whether the payments owed to the ATO constitute adverse information for the purposes of r5.19(3)(g). ‘Adverse information’ for these purposes means any adverse information relevant to a sponsor’s suitability as an approved sponsor or a nominator and includes information about the sponsor or a person associated with the sponsor. Adverse information as defined in reg 1.13A, is a non-exhaustive list and includes information that the person:

   ·has been found guilty by a court, of an offence under a Commonwealth, State or Territory law; or

   ·has, to the satisfaction of a ‘competent authority’,[1] acted in contravention of a Commonwealth, State or Territory law; or

   ·has been the subject of administrative action (including the issue of a warning) by a competent authority for the possible contravention of a Commonwealth, State or Territory law; or

   ·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or

   ·has become insolvent within the meaning of ss 5(2) and (3) of the Bankruptcy Act 1966 (Cth) and s 95A of the Corporations Act 2001 (Cth).[2]

   [1] ‘Competent Authority’ is defined as a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened: reg 2.57(1) as inserted by SLI 2009, No 115.

   [2] reg 1.13A(1).

9. The law which has been contravened, or has possibly been contravened as referred to in the first four dot points above, must relate to one or more of the following: discrimination, immigration, industrial relations, occupational health and safety, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage.[3] In addition, the conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency must have occurred within the previous 3 years.[4]

   [3] reg 1.13A(2).

   [4] reg 1.13A(3).

10. The assessment of whether outstanding payments owed to the ATO is a question for the relevant decision maker, having regard to all relevant circumstances of the case.[5]  The Tribunal does not consider that in these circumstances, the ATO (re)payments constitute adverse information. Upon review, the Tribunal notes that there is no suggestion that the applicant has defaulted on making all of its obligations to the ATO. To the contrary, according to the Accountant’s submission, the applicant is making payments to the ATO and given the impact of COVID-19, the Tribunal acknowledges that many businesses like the applicant, are faced with the same prospect.

    [5] For example, in Oakwood Sydney Pty Ltd v MICMSMA [2020] FCCA 2354, the Tribunal took into account other adverse information not known to Immigration to find that it was not reasonable to disregard the adverse information known to Immigration, under the similarly worded reg 5.19(3)(g). The Court held that the Tribunal was entitled to have regard to that information in circumstances where it had first clearly identified the adverse information known to Immigration and then went on to consider other relevant matters for its determination of whether it was reasonable to disregard (see [38]).

11. Having taken this issue into account, the Tribunal does not consider that there is any adverse information within the meaning given in rr.1.13A and 1.13B and the Tribunal is satisfied that the applicant meets the requirements of r5.19(3)(g).

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

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

13. 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.

14. There is no evidence before the Tribunal of any breaches of the workplace relations laws of the Commonwealth or New South Wales by the applicant.

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

16. 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

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

    Susan Reece Jones
    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.