KHELA GROUP OF COMPANIES PTY LTD (Migration)

[2021] AATA 2418

KHELA GROUP OF COMPANIES PTY LTD (Migration) [2021] AATA 2418 (13 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  KHELA GROUP OF COMPANIES PTY LTD

CASE NUMBER:  1820161

HOME AFFAIRS REFERENCE(S):          BCC2015/2346961

MEMBER:Bridget Cullen

DATE:13 May 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 13 May 2021 at 3.41pm

CATCHWORDS
MIGRATION–nomination – Temporary Residence Transition nomination stream –  Hotel or Motel Manager –applicant has been employed in the nominated occupation for at least three years – applicant was approved as a standard business sponsor –applicant lawfully operating a business in Australia–decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR
Migration Regulations 1994, r 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 22 June 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 August 2015. 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)(g) of the Regulations because the delegate found there was adverse information in relation to the applicant, and did not find it was reasonable to disregard it.

5. The applicant appeared before the Tribunal on 30 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Khushpreet Kaur, the nominee for the position, who also appeared as the hearing was held jointly with her application for review for an EN186 visa, related to the refusal of this nomination.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing. The applicant after the hearing, switched representation to Alasdair Colin Dougall, a legal practitioner, from Parish Patience Immigration Lawyers.

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.

10. The application was lodged on 14 August 2015, on the Form 1395 (Internet), and identified Khushpreet Kaur, a Subclass 457 visa holder at the time of the application, as the nominee, in the position of Hotel or Motel Manager – ANZSCO 141311.

11. As the application was lodged before 14 December 2015, no written certification in relation to s.245AR is required.

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

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

13. 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.

14. Records before the Tribunal confirm that the applicant was the standard business sponsor who last identified the nominee in a nomination under s.140GB of the Act. There is no evidence that the most recent business sponsorship was granted on the basis of meeting either r.120DA, r.2.59(h) or r.2.68(i).

15. The Tribunal, by way of the written material available to it (including Business Activity Statements, company financial reports, and company tax returns), together with the oral evidence of the applicant and witnesses, finds that the applicant's business is actively and lawfully operating in Australia.

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

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

17. 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.

18. The payslips before the Tribunal demonstrate that the nominee has been employed full time in the role since July of 2013, and the nomination application was made on 14 August 2015. On this basis, the nominee was employed full time in Australia in the position for which she held a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application.

19. 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)

20. 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.

21. The Tribunal has cited the most recent financial information before it, including but not limited to, profit and loss statements (where the applicant in the 2018-2019 financial year made a profit of $23,983 after income tax, and $15,569 in the 2019-2020 financial year), tax returns, and business activity statements.

22. The Tribunal also has before it the applicant’s contract, which, whilst dated 18 August 2015, is on the same rate the applicant has been paid from that time, and the Tribunal has cited both the nominee’s bank statements and payslips for the 2013-2020 period to evidence their pay. The contract further states that the position will be available for at least two years and does not include a probationary period.

23. 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)

24. 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.

25. The applicant has provided Market Salary research from the same period that the contract was offered. That research, from the Australian Government “Job Outlook” database, reveals the weekly earnings before tax for a “Hotel and Motel Manager” to be $1,000.00 per week.

26. Further, the applicant has provided data from Open Universities Australia which indicates a starting salary of $47,500 per annum, with an average salary of $55,000 per annum. Payscale data reveals a national salary range for “Motel Manager” of between $29,579 to $69,883.

27. The applicant has also provided the Tribunal with a range of advertisements for similar roles from Seek, which reveal that the applicant’s salary falls within the same bracket as the positions being advertised to the open job market.

28. Having regard to the market salary research conducted by the nominator, the Tribunal is satisfied that the conditions 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.

29. The Tribunal is further satisfied that the contract of employment dated 18 August 2015 contains standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES).

30. Accordingly, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.

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

31. 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.

32. The evidence before the Tribunal demonstrates that the applicant has made the following payments in relation to its training commitments and obligations:

Financial Year	Gross Payroll (Wages Plus Superannuation)	Amount spent	Type of training benchmark met
30 June 2013	$18,690	$879	B- More than 1% on Staff Training
30 June 2014	$165,694.82	$1,835.85	B- More than 1% on Staff Training
30 June 2015	$349,924.32	$4,800	B- More than 1% on Staff Training
30 June 2016	$376,426.82	$4,000	B- More than 1% on Staff Training
30 June 2017	$424,477.28	$9,200	A- More than 2% contributed to approved industry fund: TAFE NSW Hospitality scholarship fund
30 June 2018	$375,988.09	$8,000	A- More than 2% contributed to approved industry fund: TAFE NSW Hospitality scholarship fund
30 June 2019	$258,410.38	$5,300	A- More than 2% contributed to approved industry fund: TAFE NSW Hospitality scholarship fund

1. The payments made by the applicant demonstrate that it has met its training benchmarks.

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

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

3. 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. 

   The delegate refused the application on this criterion, outlining the adverse information as follows:

   The Department has adverse information relating to Unique International College which is associated with the nominator as defined in Reg 1.13B.

   Following a joint investigation by the Australian Competition and Consumer
   Commission and NSW Fair Trading into the conduct of private colleges, the ACCC
   and the Commonwealth (on behalf of the Department of Education and Training) have instituted proceedings in the Federal Court against Unique International College Pty Ltd (Unique).

   Unique sells VET FEE-HELP Diploma courses, costing from $22,000 to $25,000 per
   course, using face-to-face marketing, including door-to-door sales. In the 2014-15
   financial year, Unique enrolled over 3,600 students in their Diploma courses and was
   paid approximately $57 million by the Commonwealth in respect of those enrolments.
   The Federal Court has found that Unique international College is guilty of engaging in
   unconscionable conduct.

   Unique International College made millions out of the hugely flawed VET FEE-HELP
   scheme by scamming vulnerable students into unconscionable conduct.
   The Federal Court found that Unique deliberately targeted illiterate people in
   remote communities using hard-sell techniques. The Court found that Unique had
   used laptops and iPads as part of a system of conduct used to "supercharge the
   exploitation of the disadvantaged group that was being targeted and also Unique's
   remarkable profits.

   The company, which accessed $57 million in student loans from the federal education department in just one year, was headed by Sydney businessman Amarjit Khela.Figures provided to the court last year revealed that 1187 students of a total 3289 – or 36 per cent - identified as indigenous.

4. There is no doubt that the delegate’s concerns about the relationship between the applicant and Unique International College are serious and raise matters of significance. The Tribunal has considered the submissions from the applicant’s representative from both April and November 2020.

5. The applicant’s representative draws the Tribunal’s attention to the substantial and meaningful difference in the two definitions of 'associated with' contained in r.1.13A before and after 18 March 2018 (when it was significantly amended). The Tribunal agrees with the applicant that prior to 18 March 2018, the definition of 'associated with' did not include 'family' or family-like relationships'. In contrast, the definition of 'associated with' that applies post-18 March 2018 was significantly expanded to include any person who:

   ·are or were spouses or de facto partners; or

   ·are or were members of the same immediate, blended, or extended family; or

   ·have or had a family-like relationship; or

   ·belong or belonged to the same social group, unincorporated association, or other body of persons; or

   ·have or had common friends or acquaintances.

6. The Tribunal finds that the correct definition of ‘associated with’ is that which was applicable at the time of application, before the 18 March 2018 amendments. This definition provides that:

   (a) a person (the associated person) is associated with a person that is a corporation if the associated person is an officer of the corporation, a related body corporate or an associated entity; and

   (b) a person (the associated person) is associated with a person that is a partnership if the associated person is a partner of the partnership; and

   (c) a person (the associated person) is associated with a person that is an unincorporated association if the associated person is a member of the association's committee of management; and

   (d) a person (the associated person) is associated with a person that is an entity not mentioned in paragraphs (a), (b) and (c) if the associated person is an officer of the entity.

7. The ASIC Company Extracts before the Tribunal indicate that the sole shareholder and Director of the applicant company is Mr Baljeet Singh, and that this has been the case since its inception. Further, the information before the Tribunal reveals that Mr Baljeet Singh has never been an officer of Unique International College.

8. On this basis, the Tribunal is obliged to find that, pursuant to the definition of r.1.13A that was applicable at the time of application, there is no association between Unique International College Pty Ltd and the applicant.

9. Having made this finding, there is nothing before the Tribunal to show any adverse information is known to the Department about the relevant business or anyone associated with it.

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

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

11. 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.

12. There is no information before the Tribunal, to indicate that the applicant has anything but a satisfactory record of compliance with the laws of the Commonwealth, the States and Territories in which the applicant conducts business and employs people, relating to workplace relations.

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

14. 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

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

    Bridget Cullen
    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

    (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.