Kamboj Group Pty Ltd (Migration)

[2018] AATA 2027

Kamboj Group Pty Ltd (Migration) [2018] AATA 2027 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Kamboj Group Pty Ltd

CASE NUMBER:  1701536

DIBP REFERENCE(S):  BCC2016/2411655

MEMBER:Hugh Sanderson

DATE:16 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 May 2018 at 3:13pm

CATCHWORDS
Migration – Nomination refusal – Customer Service Manager – Temporary Residence Transition nomination stream – Training expenses over the whole period l as a standard business sponsor met the expenditure requirements – Applicant was approved as a standard business sponsor – Decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, rr 1.20DA, 2.59, 2.68, 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 28 January 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 20 July 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, 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)(f)(i) of the Regulations because the delegate was not satisfied that the applicant met the training requirements during the period of the nominator’s most recent approval as a standard business sponsor.

   Background

5. The applicant is a company whose main purpose is operating a car wash known as Xibit Car Wash Cafe. The applicant applied for approval as the sponsor for a Subclass 186 Employer Nomination Scheme visa for the visa applicant, Herprabhjot Kaur for the position of a Customer Service Manager.

6. The applicant provided limited information to the Department with the application.

7. The delegate who considered the application noted the following issues:

   ·The applicant’s most recent standard business sponsorship (SBS) was approved on 13 December 2012 and included a commitment to fulfil training requirements with expenditure to the equivalent of at least 2% of the payroll of the business to be allocated to an industry training fund or expenditure to the equivalent of at least 1% of the payroll of the business in the provision of training to Australian citizen or Australian permanent resident employees of the business for each year of the validity of the SBS agreement;

   ·No information had been provided to show a 2% contribution allocated to an industry training fund;

   ·The applicant claimed to have spent $1,900 in the 12 months prior to the application for training;

   ·Documents were provided showing the following training expenses:

Document type	Date	Training provider	Amount
Tax invoice	03/10/2013	Brainpower Training Pty Ltd	$1,123.08
Tax receipt	16/10/2014	Australian Management and Training Services	$1,600.00
Tax receipt	31/12/2014	Australian Management and Training Services	$200.00
Tax receipt	27/11/2015	Brainpower Training Pty Ltd	$1,900.00

·No financial statements or other documents for the period between 2012 and 2015 were provided to be able to assess the gross payroll of the applicant;

·The claim that the gross payroll expenditure for the 12 months prior to the application was $157,118.00 was not supported by any other documentation; and

·It was not possible to calculate whether the applicant was meeting the training requirements.

1. As the applicant had provided insufficient evidence to demonstrate they had provided training to Australia citizens or permanent resident employees or contributed to an industry fund the delegate concluded that they did not meet r.5.19(3)(f) and refused the application.

   Information to the Tribunal

2. The applicant provided further documents to the Tribunal including the following:

   ·Company tax returns for the years ending June 2017 and June 2016;

   ·Various invoices;

   ·Organisational chart for Xibit Car Wash Cafe showing the director and 10 other employees;

   ·Employment agreement between the applicant and the visa applicant; and

   ·Hand written PAYE payment summaries for the visa applicant for the years between 2014 and 2017.

3. The applicant provided a Training Record where the following was claimed to be spent for the following financial years:

Year	Training provider	Amount spent	Annual payroll
2013 – 2014	Australian Management and Training Services	$1,800	$175,150
2014 - 2015	Brain Power Training	$1,900	$165,000
2015 – 2016	Australian Management and Training Services	$1,400	$135,978

1. Mr  Anoop Singh Judge on behalf of the applicant appeared before the Tribunal on 4 April 2018 to give evidence and present arguments. An interpreter in the Punjabi and English languages was present but Mr Judge did not need to use the interpreter. The applicant was represented in relation to the review by its registered migration agent who attended the hearing.

2. Mr Judge gave evidence as to the number of people working in the business. He said the cafe manager worked full-time and there was one part-time assistant in the cafe. He said that there were three full-time car washers and two part-time car washers. He said the visa applicant organised how the cars were to be washed and dealt with the customers. He could not explain why the accountant was included in the organisational chart of the business. He said that he, as the operational manager, only came to the business once a week as did the other director. He said there was another car rental business which was owned by Kamboj Group Pty Ltd which did not employ anyone.

3. Mr Judge provided the financial statements for the business for the years ending 30 June 2014 to 30 June 2017. When comparing these statements to the company tax returns it was noted there were a number of inconsistencies including the net profit of the business and the superannuation payments.

4. The Tribunal noted that the financial statements indicated the business had been generating a reducing net profit from 2014 to 2017. This raised the issue of whether the applicant would have the capacity to employ the visa applicant for a period of two years. Mr Judge stated that the major problem was the increase in rent for the premises and they were negotiating with the landlord about this.

5. The manner in which the training requirements were met was discussed. It was noted that no clear information had been provided as to the total salary and wages bill of the applicant over the relevant period. It was agreed that the applicant would provide this information by 24 April 2018.

6. The applicant provided further information including financial statements for the years from 2014 to 2017, certificates awarded to employees for training completed, evidence of employees being either Australian citizens or permanent residents, and submissions in support of the application.

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 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)

9. 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) of the Migration Act 1958 (the Act). The application must also identify a relevant person and occupation.

10. The Tribunal is satisfied that the applicant made application on the relevant form and it was accompanied by the prescribed fee. The relevant s.245AR(1) certification was provided in the application form.

11. The application identifies Herprabhjot Kaur as the nominated person and departmental records show that she has held a Subclass 457 visa since 18 October 2013 that was granted on the basis of her satisfying cl.457.223(4) of Schedule 2 to the Act.

12. The occupation identified in the application is customer service manager (ANZSCO 149212). The Tribunal is satisfied, based on the employment documents of the visa applicant, that the occupation identified is the same occupation as that carried out by the nominee as the holder of a Subclass 457 visa. The Tribunal is satisfied that this occupation carries the same four digit code (1492) as the occupation carried out by the nominee when she held a Subclass 457 visa.

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

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

14. 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.

15. The Tribunal is satisfied that the applicant is a registered business operating two separate businesses, Speedy Rentals and Xibit Car Wash Cafe. The Tribunal is satisfied that its primary operation is Xibit Car Wash Cafe and that it operates this business employing several staff. The Tribunal is satisfied that the applicant is actively and lawfully operating this business in Australia.

16. Departmental records confirmed that the applicant was the standard business sponsor who last identified Ms Kaur in a nomination made under s.140GB of the Act. The applicant was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

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

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

18. 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.

19. The applicant lodged the nomination application on 20 July 2016. The visa applicant has been working for the applicant since then. The visa applicant was granted the Subclass 457 visa to work in the nominated occupation on 18 October 2013. The applicant has provided PAYG payment summaries for the visa applicant dating back to the financial year ending 30 June 2014 showing the employment of the visa applicant with the applicant. The Tribunal is satisfied that the visa applicant has been employed full-time by the applicant in the position in Australia as the holder of a Subclass 457 visa for at least two years in the three-year period immediately before this nomination application was made.

20. 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)

21. 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.

22. The applicant has provided the financial statements and company tax returns for the business. This indicates the business has been able to show a net profit each year since 2014. There was a reduction in the net profit for the years ending 2016 and 2017. This, in part, was explained by a significant increase in rent in 2016 of over $25,000 per annum. The applicant has consistently had gross sales of slightly less than $400,000 each year since 2015.

23. The applicant has employed the visa applicant from 2013. The applicant gave evidence of the visa applicant’s responsibilities and claimed that the business depends on her for the smooth operation of the business and ensuring customer satisfaction and return business.

24. The Tribunal is satisfied that the financial position of the applicant means that the business Xibit Car Wash Cafe will be financially viable for at least the next two years and that the applicant will be in a position to be able to employ the visa applicant over that period. The Tribunal is satisfied that the applicant intends to employ the visa applicant for at least the next two years on a full-time basis.

25. 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)

26. 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.

27. The applicant has provided a copy of the employment agreement between the applicant and the visa applicant. The visa applicant is to receive a base salary of $54,200 per annum together with superannuation. This is consistent with the PAYG payment summaries of the visa applicant for the financial years ending 2016 and 2017. The base salary together with superannuation payments means the visa applicant will be receiving a total remuneration package of $59,349. Payscale.com indicates the medium income for a customer service manager is $59,106 with a range of annual salary from $48,000-$87,000.

28. For the above reasons, the Tribunal is satisfied the terms and conditions of the visa applicant’s employment will be no less favourable than the terms and conditions that would be provided to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location.

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

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

30. 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.

31. There is some inconsistent information as to the applicant’s payroll over the relevant periods. The claimed payroll set out in the BAS statements does not always reflect the information in the relevant financial statements. Staff training expenses in the financial statements are also inconsistent with the receipts provided from various training organisations.

32. The relevant period of the standard business sponsorship approval was from 13 December 2013 to 12 December 2016. For the purpose of determining whether the applicant met the training commitments and obligations, the Tribunal has considered the payroll for that period as assessed by adding half the stated payroll of the financial years either side of 31 December and considering the training conducted up until 31 December of each year.

33. Taking these figures into consideration, the Tribunal finds the payroll and relevant training conducted over those periods were as follows:

Year ending 31 December	Payroll	Training expenses
2014	$174,758.50	$1,800.00
2015	$170,277.00	$1,900.00
2016	$163,462.00	$1,400.00
Total	$508,497.50	$5,100.00

1. From the above figures, it is evident that the applicant spent in excess of 1% of their payroll in 2014 and 2015 in training expenses. In 2016, the applicant did not meet the required expenditure of 1% of their payroll with the training expenses approximately $200 less than the required figure. Accordingly, the applicant did not fulfil the commitments made relating to training for each year over the period.

2. Over the three years that the applicant was approved as a standard business sponsor the amount spent on training of Australian residents and citizen employees of the applicant has been in excess of 1% of the payroll over that period. The applicant has provided evidence that training was organised with Magill College Sydney in November 2017 for training on workplace safety with costs equalling $1,650.00. Although this amount is not taken into account as it falls outside the period of the approval of the standard business sponsorship, this indicates an ongoing commitment by the applicant to training.

3. In all the circumstances, the Tribunal finds that although the applicant did not meet the training commitments for one year of the applicant’s approval as a standard business sponsor it would be reasonable to disregard the requirements. This is due to the fact that the applicant’s training expenses over the whole period of their approval as a standard business sponsor met the expenditure requirements and the applicant has continued to show a commitment to training since that time.

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

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

5. Regulation 5.19(3)(g) requires that there is no adverse information known to the Department of 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. There is no information before the Tribunal that would indicate that there is any adverse information known to the Department about the applicant or a person associated with the applicant. Accordingly, the requirement in r.5.19(3)(g) is met.

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

7. Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws relating to workplace relations of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business.

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

9. 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

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

    Hugh Sanderson
    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.