KELLY'S BAR & GRILL PTY LTD (Migration)

[2021] AATA 1384

KELLY'S BAR & GRILL PTY LTD (Migration) [2021] AATA 1384 (4 May 2021)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  KELLY'S BAR & GRILL PTY LTD

CASE NUMBER:  1824352

HOME AFFAIRS REFERENCE(S):          BCC2017/4772073

MEMBER:Michael Cooke

DATE:4 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 04 May 2021 at 3:28pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – genuine need to employ nominee – comprehensive and satisfactory submission provided to tribunal – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 359(2)
Migration Regulations 1994 (Cth), r 5.19(3)(i)

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 6 August 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 13 December 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 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) of the Regulations because the business had not demonstrated that there is a genuine need to employ the person as a paid employee, to work in the position under the nominator’s direct control.

5. In response to an Invitation pursuant to s.359(2) of the Act, the applicant provided additional information confirming it could meet the criteria in reg.5.19(3) on review.

6. The applicant was represented in relation to the review by its registered migration agent.

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). 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.

   Findings and reasons in relation to whether r.5.19(3)(a) is met and whether the application:

   ·was made on the form 1395, or 1395 (Internet) for post 23 March 2013 applications, and accompanied by the fee prescribed in r.5.37;

   ·for applications made from 14 December 2015 – includes a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1);

   ·identifies a person who holds a Subclass 457 visa granted on the basis of satisfying cl.457.223(4);

   ·identifies an occupation in relation to the position that is listed in ANZSCO and has the same 4 digit code as the occupation carried out by the Subclass 457 visa holder; and

   ·identifies 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.

10. The Tribunal finds from the evidence before it that the above criteria have been demonstrated.

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. The Tribunal finds that the nominator:

    ·is/was the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act or under r.1.20G or 1.20GA (pre 14 September 2009); and

    ·is actively and lawfully operating a business in Australia; and

    ·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).

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. The Tribunal finds that:

    ·The details of the business entity which has applied for approval is KELLY'S BAR & GRILL PTY LTD. The details of the position to which the application relates is ‘Chef’ (ANZSCO 351311).

    ·The details of the nominee are Biju SHRESTHA and who has held the nominee’s occupation while holding his Subclass 457 visa/s in the 3 years before the application.

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 finds that:

    ·this requirement applies in this case, and

    ·the nominee will be employed on a full-time basis for at least 2 years; and

    ·the terms and conditions of the person’s employment will not expressly exclude the possibility of extending the period of employment.

20. 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)

21. 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.

22. The Tribunal finds from the evidence before it that the terms and condition applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

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

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

24. 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.

25. The Tribunal finds that during the period of the applicant’s most recent sponsorship approval and up until 14 November 2019 (when the Sponsor ceased having any obligations under the training requirement because they no longer employed any 457 visa holders and all future obligations would have been covered under the new SAF levy arrangements) the applicant fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements .

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

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

27. 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. 

28. The Tribunal finds that there is no adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.

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

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

30. 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.

31. The Tribunal finds that it has no evidence that the nominator has a less than satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

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

    Genuine need to employ nominee: r.5.19(3)(i)

33. 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.

34. The applicant (through its representative) has provided a comprehensive and satisfactory submission addressing this particular issue.

35. Accordingly, the requirement in r.5.19(3)(i) is met.

36. 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

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

    Michael Cooke
    Senior 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.