KDM Group of Companies Pty Ltd (Migration)

KDM Group of Companies Pty Ltd (Migration) [2019] AATA 6361 (18 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  KDM Group of Companies Pty Ltd
CASE NUMBER:  1823472
DIBP REFERENCE(S):  BCC2017/4162638
MEMBER:Mary Sheargold
DATE:18 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 18 October 2019 at 12:23pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – Temporary Residence Transition stream – employment for at least two years – employer’s wage expenditure not commensurate with number of workers – financial and other documents provided to tribunal – wage expenditure includes part-time workers and unpaid leave – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(3)(d)(i)

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 Immigration on 30 July 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).
The applicant applied for approval on 8 November 2017. 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).
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 r.5.19(3)(d)(i) of the Regulations because the evidence provided by the applicant did not demonstrate that the nominee would be employed on a full time basis in the position nominated for at least 2 years.
Mr Dharampal Singh, the managing director of KDM Group of Companies Pty Ltd (the applicant), appeared before the Tribunal on 2 September 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
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 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.
At the hearing, the applicant provided the Tribunal with a number of documents in support of its application, including:
·written submissions from its representative arguing that the applicant can meet the requirement in r.5.19(3)(d)(i);
·PAYG payment summaries for all of the applicant’s employees for each of the financial years ending on 30 June 2016 to 30 June 2019 inclusive;
·payroll activity summaries for the applicant’s business for the same 4 financial years;
·profit and loss statements for the applicant’s business for the same 4 financial years;
·copies of company tax returns for the same 4 financial years;
·copies of bank statements for the applicant’s business for the same 4 financial years;
·copies of bank statements for the applicant’s business for the period from 1 July 2019 to 31 August 2019;
·an organisational chart for the applicant’s business dated August 2019; and
·various medical certificates, leave requests and resignation letters received by the applicant from 4 of its employees (not including the nominee).
After the hearing, the applicant provided further documents in support of its application, including:
·a contract of employment for the nominee dated 9 September 2019;
·evidence of payment of superannuation for the applicant’s employees from 2012 to 2019;
·written submissions and supporting documentation setting out the applicant’s compliance with its training obligations during each year of the period of its most recent standard business sponsorship approval (from 14 May 2016 to 14 May 2021); and
·evidence of business name registration for Desi Tandoori Dhaba Mitran Da held by the applicant.
The application must be compliant: r.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, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.
The Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form. The letter from the Department to the applicant dated 8 November 2017 indicates that the nomination application fee has been paid.
The application for approval identifies Ms Ekamdeep Kaur Brar, the nominee who, according to Departmental records, held a Subclass 457 visa from 13 August 2015 that was granted on the basis of satisfying cl.457.233(4) of Schedule 2 to the Regulations.
The application for approval identifies the occupation of Café or Restaurant Manager, ANZSCO 141111. Based on the employment documents for the nominee, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by her as the holder of a Subclass 457 visa. Accordingly, the Tribunal is satisfied that this occupation carries the same 4 digit code (1411) as the occupation carried out by the nominee whilst she held the Subclass 457 visa.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.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.
Departmental records confirm that the nominator was the standard business sponsor who last identified Ms Brar in a nomination made under s.140GB of the Act. The nominator 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).
The applicant has provided the Department and the Tribunal with documents including copies of business activity statements (BAS), copies of company tax returns, bank statements, profit and loss statements, evidence of registration of a business name, a council permit to operate its restaurant, and other information about the business’s activities.
Based on the material before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia. Therefore, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
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.
In this case, the relevant provision is set out in r.5.19(3)(c)(i). The nomination application was made on 8 November 2017.
The nominee was granted her Subclass 457 visa in the nominated occupation of Café or Restaurant Manager on 13 August 2015, sponsored by the applicant. The applicant was approved as a standard business sponsor from 22 May 2013 to 22 May 2016 and has a current standard business sponsorship approval that has been in effect since 14 May 2016.
The Tribunal has had regard to PAYG statements for the nominee provided by the applicant for each financial year from the year ending on 30 June 2015 to 30 June 2019 inclusive, as well as evidence provided at the hearing by Mr Singh, that the Tribunal accepts, that the nominee has been working for the applicant as a Restaurant Manager continuously since 2015.
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)
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. As set out above, r.5.19(3)(c)(i) applies to this application, and so the applicant must also comply with r.5.19(3)(d).
The delegate refused to approve the nomination on this basis, finding that the applicant’s total wage expenditure was not commensurate with the number of Subclass 457 visa holders employed on salaries of approximately $54,000 per annum and other employees who worked on a part time basis.
At the hearing, Mr Singh gave evidence that the nominee has worked for the applicant continuously since 2015 and noted that the PAYG statements provided for her indicate that she has been paid at the appropriate rate for each year of her employment. The Tribunal notes that the applicant has provided significant evidence in the form of medical certificates and letters from other staff, including some who were holders of Subclass 457 visas, indicating changes to the terms of their employment (e.g. from full time to part time), as well as requests for, and approvals of, extended periods of unpaid leave.
The Tribunal has had regard to the applicant’s most recent organisational chart, dated August 2019, indicating that there are only 2 full time employees in the applicant’s restaurant business, one of whom is the nominee.
The Tribunal notes that the evidence provided in both the organisational chart and the letters from the applicant’s employees regarding changes to their employment is consistent with the information provided in PAYG summaries for all staff for the financial years ending on 30 June 2016 to 30 June 2019 inclusive.
The Tribunal has considered the employment contract between the applicant and the nominee dated 9 September 2019 (the employment contract). The Tribunal notes that Recital A of the employment contract states that the nominee will be employed on an ongoing basis. Clause 6.1 of the employment contract states that she will be required to undertake her duties as a Restaurant Manager for 38 hours per week between Monday and Friday on a rostered basis. The Tribunal notes that there is nothing in the employment contract to indicate that the nominee’s employment is for a fixed term.
The Tribunal has also considered the applicant’s payroll summaries as well as the information provided in its detailed profit and loss statements for the financial years ending on each of 30 June 2016 to 30 June 2019 inclusive, and finds that the payments to staff have been recorded appropriately. The Tribunal finds that the applicant’s business has been profitable in each of the financial years noted above, and finds that the applicant has the financial capacity to continue to employ the nominee at her agreed salary.
Based on the evidence before it, the Tribunal is satisfied that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly exclude the possibility of extending the period of employment.
No less favourable terms and conditions of employment: r.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.
Item 2 of the Schedule to the employment contract states that the nominee’s salary will be $55,000 per annum, with 9.5% superannuation and a 17.5% leave loading. The Tribunal notes that under the Restaurant Industry Award 2010, the minimum weekly wage for a Food and Beverage Supervisor (the role with duties mostly closely aligning to that of a Restaurant Manager) is $916.60 per week, which equates to an annual salary of $47,663.20 per annum. The Tribunal notes that the nominee’s usual working hours are spread across Monday to Friday, and that any additional hours will incur paid overtime.
The Tribunal finds that the nominee’s remuneration is more favourable than that offered under the Award, and therefore is no less favourable than the salary that would be offered to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Further, the Tribunal notes that the terms set out in the employment contract in relation to leave, termination, redundancy, and notice, are all in accordance with the requirements set out in the National Employment Standards and the Fair Work Act 2009 (Cth). Therefore the Tribunal finds that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Based on all the evidence before it, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that 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 r.5.19(3)(e) is met.
Training commitments and obligations: r.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.
The applicant’s most recent standard business sponsorship approval was granted on 14 May 2016 and runs until 14 May 2021. The applicant has provided submissions and supporting evidence to demonstrate that it met its obligations set out in IMMI 13/030 in relation to training expenditure in the first 2 years of its most recent standard business sponsorship approval. In the first year of its most recent standard business sponsorship approval, the applicant submits its total payroll expenditure was $236,571.12, and that in that year, it spent $2,958.00 on training for its staff on a communications strategies course provided by McKkr’s Training. In the second year of its most recent standard business sponsorship approval, the applicant submits its total payroll expenditure was $210,495.04, and that in that year, it spent $2,414.40 on training for its staff on a customer service strategies course provided by McKkr’s Training. The applicant has provided documentary evidence demonstrating that such payments were made.
The Tribunal notes that since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. The Tribunal notes that the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) states at cl.7602 - Operation of amendments that “…(5) A person is not required to comply with subregulation 2.87B(2) … in relation to a period of 12 months ending on or after the commencement day.” The Tribunal notes that the commencement day set out in the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) is 12 August 2018. Accordingly, the Tribunal finds that the applicant was not required to meet Training Benchmark A or Training Benchmark B for the third year of its current standard business sponsorship approval from 14 May 2018 to 14 May 2019.
As set out in paragraph 41 above, since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. Therefore the applicant does not have an obligation to meet the training benchmarks in this current year of its most recent standard business sponsorship approval.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.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 rr.1.13A and 1.13B.
There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.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.
There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws. The Tribunal notes that the employment contract provides the minimum terms and conditions of employment set out in workplace relations legislation.
Accordingly, the requirement in r.5.19(3)(h) is met.
Genuine need to employ nominee: r.5.19(3)(i)
Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
At the hearing, Mr Singh gave evidence that he does not work within the restaurant business himself, and that he has paid employment elsewhere. He told the Tribunal that the restaurant is dependent on the nominee to manage the restaurant on a day to day basis. The Tribunal notes that Ms Brar has worked as the Restaurant Manager on a full time basis since 2015.
On the basis that Mr Singh does not work within the restaurant business, the Tribunal finds that there is a genuine need for the applicant to employ the nominee to work as the Restaurant Manager under the applicant’s direct control.
Accordingly, the requirement in r.5.19(3)(i) is met.
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.
Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mary Sheargold
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
(iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and
(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

[2019] AATA 6361

18 October 2019

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