Junior Club Catering Pty Ltd (Migration)

[2020] AATA 467

Junior Club Catering Pty Ltd (Migration) [2020] AATA 467 (6 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Junior Club Catering Pty Ltd

CASE NUMBER:  1703963

DIBP REFERENCE(S):  BCC2016/2983111

MEMBER:Andrew McLean Williams

DATE:6 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 06 January 2020 at 4:10pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Human Resource Advisor – financial capacity to employ nominee for two years – training expenditure requirements met – previously employed in position – employment contract 2 years full time – employment extension not precluded – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 245AR(1)
Migration Regulations 1994 (Cth), r 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 23 February 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 originally applied for approval on 8 September 2016. 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 by seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application, on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i), or r.5.19(3)(f) of the Regulations because on the evidence available at that time the delegate could not be satisfied that the applicant had sufficient financial capacity to employ the nominee for a minimum of two years, and had met its training expenditure requirements as a standard business sponsor.

5. The applicant company, represented by Mr Zhifeng Mai appeared before the Tribunal on 29 October 2019 to give evidence and make submissions. The Tribunal also received oral evidence from the nominee visa applicant, Ms Yijiao Jiang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by its registered migration agent, Mr Jiang Liu of Jiang Liu Consultancy Services. After the hearing on 29 October 2019 the Tribunal also wrote to Mr Jiang Liu and requested that the applicant submit further evidence, particularly in response to matters set out in regulation 5.19(3)(e) of the Migration Regulations 1994. Information in response to that request was received from the applicant on 20 November 2019.

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 extracted in the attachment to this decision. For the nomination to be approved, all the requirements in r.5.19(3) 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 also 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 was filed on 8 September 2016, on-line by means of the Department of Immigration and Border Protection on-line portal, and in the approved form. The application identifies Ms Yijiao Jiang, who is a person who held a Subclass 457 Visa granted on the basis of her having satisfied cl.457.223(4), and identifies a position for a Human Resource Advisor (ANZSCO 223111), which is the occupation carried out by Ms Jiang. The form itself contains the necessary declaration regarding conduct in contravention of s.245AR(1) of the Migration Act. The letter sent by the Department on 8 September 2016 acknowledging receipt of the application indicates that the application was accompanied with the required application fee.

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. Junior Club Catering Pty Ltd (ABN 24 151 569 578) is registered company actively operating three restaurants at Tweed Heads in northern New South Wales, and is the standard business sponsor (‘SBS’) who identified Ms Yijiao Jiang in a nomination made under s.140GB of the Migration Act. The applicant was not granted its most recent SBS status 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. In this case Ms Yijiao Jiang satisfies the requirements of r.5.19(3)(c)(i), in that she has been employed full time in Australia for more than two years continuously by Junior Club Catering Pty Ltd in the position of Human Resource Adviser, for which position she is also the holder of a Subclass 457 visa.

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 Tribunal has had regard for an employment agreement dated 8 August 2016 whereby the applicant has agreed to employ Ms Yijiao Jiang as its Human Resource Advisor for an unspecified period, commencing on the date of visa approval.  On the face of it, this is an open-ended employment contract.  Mr Zhifeng Mai was quizzed about this by the Tribunal.  He informed that the nominee has now been employed by Junior Club Catering on a full-time basis since 8 August 2016 and that the applicant intends to maintain her employment indefinitely into the future, and certainly for at least a further two years.  Mr Mai further explained that a full-time human resource advisor has proven to be necessary when operating three restaurants in close proximity to one another simultaneously.  This is because staff turnover in the food and hospitality sector is quite high, such that new staff need to be constantly recruited and then trained. This evidence is now accepted by the Tribunal.  The Tribunal further notes that the employment agreement dated 8 August 2016 does not expressly preclude the possibility of employment beyond a period of two years.

20. The Tribunal further notes correspondence dated 30 October 2019 from ANG Consulting Group Pty Ltd, who are the accountants and tax agents for the applicant.  The accountants confirm that the applicant is trading profitably with a sales turnover (ex GST) of $1.988,838 in the 2019 financial year.  The accountants consider that the applicant is in a financial position to be able to pay Ms Yijiao Jiang an annual salary of $65,000 plus superannuation during the next two years.  That opinion is accepted by the Tribunal.

21. 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)

22. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position 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.

23. On 20 November 2019 the applicant, via its authorised representative Mr Jiang Liu submitted further documentary evidence regarding comparable salaries for human resource advisors working in the Gold Coast area.  This information reveals a national salary range of between $57,000 and $90,000 per annum and a Gold Coast regional range of between $60,000 and $65,000 per annum.  That evidence is accepted.  On the basis of it the Tribunal concludes that the terms and conditions of employment applicable to the nominated position 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

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

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

25. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and to have 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.

26. At the time of the decision now under review the Applicant’s most recent period of approval as a standard business sponsor (SBS) had commenced on 16 October 2012, for a period of three years expiring on 12 October 2015. The delegate could not be satisfied that there was sufficient evidence that the applicant had met the level of expenditure during that period necessary for it to comply with its SBS training obligations under r.5.19(3)(f)(i). Since then, the applicant has been re-approved as a standard business sponsor, with this occurring on 19 June 2018. The approval notified on 19 June 2018 is now the most recent approval as a standard business sponsor for purposes of r.5.19(3)(f)(i). On 4 January 2019 the applicant paid $2,766.04 to meet its SBS training commitments and obligations.

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

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

28. 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. 

29. No information has been drawn to the attention of the Tribunal by the Department in relation to any adverse information known about the nominator or any person associated with the nominator.

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

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

31. 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.

32. No information has been drawn to the attention of the Tribunal by the to suggest that the applicant has anything other than a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

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

34. 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

35. 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.