KRUNCH & CRUNCH CATERING PTY LTD (Migration)

[2018] AATA 5624

KRUNCH & CRUNCH CATERING PTY LTD (Migration) [2018] AATA 5624 (5 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  KRUNCH & CRUNCH CATERING PTY LTD

CASE NUMBER:  1704109

DIBP REFERENCE(S):  BCC2016/2608629

MEMBER:Alan McMurran

DATE:5 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 October 2018 at 3:59pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream –Cook – training requirements – evidence of training provided – standard business sponsor – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140GB, 245AR(1)
Migration Regulations 1994, rr 1.13, 1.20, 2.59(h), 2.68, 5.19, 5.37, Schedule 2, cl 457.223(4)

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 17 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 applied for approval on 7 August 2016.

3. The requirements for the approval of the nomination of a position in Australia found in r.5.19 of the Regulations contain 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 made in accordance with r.5.19 (2) meets the requirements of either stream, then the application must be approved.

4. If any of the requirements are not met then the application must be refused: r.5.19 (5).

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 (Regulation 5.19(3)).

6. The nominee is Mrs Razauna Haque, a citizen of Bangladesh (the visa applicant). The nominated occupation is Cook (ANZSCO 351411).

7. 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 applicant did not meet either Benchmark A or B of the regulations in regard to the expenditure on training for Australian citizens/permanent residents.

8. Its registered migration agent represented the applicant in relation to the review.

9. 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

10. 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. The applicant must meet all of the requirements of the Regulations for approval of the nomination.

11. In this review, the Tribunal has had regard to the Tribunal’s file, the Department’s file[1], the related file for the visa applicant[2] and the related Department’s file[3] together with information from a variety of sources. This includes the most recent submissions from the applicant’s agent, Mark Walsh, dated 24 September 2018 and received in response to a letter from the Tribunal dated 11 September 2018.

    [1] BCC2016/2608629

    [2] T file 1707107

    [3] BCC2016/2636564

12. The Tribunal did not conduct a hearing and has dealt with the matter on the basis of the material provided in the files referred to above and the more recent material provided by the applicant’s representative, not all of which was available to the Department at first instance.

13. The Tribunal’s findings are set out below.

    The application must be compliant: r.5.19(3)(a)

14. 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.

15. The Tribunal finds that 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;

    ·includes a written certification stating the nominator has not 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) and who is named as the visa applicant; and

    ·identifies the occupation as Cook 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.

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

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

17. 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.

18. The Tribunal finds that the applicant:

    ·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.1.20, r.2.59(h) or r.2.68(i).

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

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

20. 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.

21. On the information available to it, the Tribunal finds:

    ·the applicant is a business entity which has applied for approval of the nomination and provided details of the position to which the application relates, namely as a cook and in respect of the visa applicant; and

    ·the applicant has provided details of the nominee who has been identified in the application as the visa applicant, and which application contains details of the visa applicant’s visa history and occupation as a cook while holding her Subclass 457 visa/s in the 3 year period before the application.

22. 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)

23. 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 applicant employs the nominee on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

24. Having regard to the employment contract provided in the information from the applicant, the Tribunal finds the applicant will engage the nominee as a cook based on its terms and conditions and from the date of the grant of a visa. The Tribunal finds that the employment contract:

    ·is a relevant document dated 24 September 2018 and current for the purposes of this case, and

    ·sets out that the applicant will engage the nominee on a full-time basis for at least 2 years without reservation, or probation or any exclusion for an extension;

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 Tribunal has noted the written submissions from the agent made 24 September 2018.

28. The Tribunal finds that:

    ·the terms and conditions are set out in the employment contract referred to above;

    ·the nominee will work as a Cook Grade 2 pursuant to the current industry award, Hospitality Industry (General) Award 2010 (the award).

    ·The award provides terms and conditions to be included in the contract for employment of the nominee. The nominee’s contract is required to contain terms and conditions, which are no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location, and pursuant to the same award.

    ·The Tribunal accepts that the terms and conditions in the nominee’s contract are the equivalent or better than those set out in the award for a Cook grade 2 and specified in Schedule D-Classification Definitions of the award.

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. 

31. The Tribunal may disregard these requirements pursuant to the subregulation if it is reasonable to do so.

32. In the Department’s reasons for decision the Tribunal notes the Department makes reference to the following concerns:

    a.that the training invoice dated 12 June 2015 is in a total sum of $4200, whereas the applicant’s financial statements for the same financial year declared the amounts spent on training as $3818, and the discrepancy is not explained;

    b.that SET is not a registered training provider;

    c.the training invoice provided for the applicant’s financial year ending June 2016 is for $2850 and nominates 2 employees of the applicant. The delegate was not satisfied those were in fact employees of the applicant, or employees who hold current Australian citizenship or permanent residency status.

33. In response to these concerns, and the Tribunal’s letter sent 11 September 2018, the representative submits and the Tribunal finds as follows: –

    a.that the invoice dated 12 June 2015 for $4200 is inclusive of GST whereas the amount noted in the company’s financial records is exclusive of GST; the addition of GST correctly sums the total at $4200;

    b.Safe Education and Training Pty Ltd (SET) is a corporation which at the relevant time (12 June 2015) was a corporation which carried on the business of providing in-house training and education services. The Tribunal notes that the current ASIC record shows that the company was deregistered on 13 September 2018, and is no longer trading. The record also shows however that the company was registered in the period 7 January 2014 to 30 September 2018. The submission also correctly points out that it is not a requirement in the subregulation that the training organisation is “registered”. There are requirements for registered training organisations (RTO’s) which provide VET courses and vocational training for the purposes of providing recognised qualifications, which are certified. It is not such a requirement however, for Benchmark (B) that “training” must only be provided by RTO’s.

    c.The applicant has provided with its submission on 24 September 2018: –

    i.an extract of the VEVO[4] entitlement check from the (former) Department of Immigration and Border Protection which provides a check result for one of the named employees who attended the 2016 training, Sharif Islam, and which specifies he is a permanent resident pursuant to a 186 visa granted on 4 June 2015; and

    ii.a current organisation structure as at 30 June 2018 which identifies the other employee who attended training in 2016, Afsana Kazi, as an Australian citizen.

    [4] Visa Entitlement Verification Online

34. The Tribunal notes that the submission from the applicant attaching the organisation structure from the company[5] refers to Shariful Islam as a “COOK/CHEF 457 visa”. The Tribunal however prefers the VEVO extract as evidence of the correct status of that employee, and is satisfied that the named employee is in fact a permanent resident.

    [5] T file at folio 62

35. Based on these findings and the financial information contained in the Department’s file and the Tribunal’s file, and noting the summary set out in the submission[6] showing the annual payroll, the calculation of 1%, and the actual expenditure by the applicant, the Tribunal accepts that the applicant has met the Benchmark B requirement for training during the period of the applicant’s most recent approval as a standard business sponsor, and has complied with the applicable obligations under Division 2.19.

    [6] Ibid f 22

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

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

37. 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. 

38. The Tribunal finds on the information before it that there is no adverse information known to immigration about the applicant or a person associated with the applicant.

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

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

40. 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.

41. On the information before it, the Tribunal finds that nominator has a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.

42. The Tribunal is not aware of any breaches of any workplace laws of any state or the Commonwealth or any concerns raised by Fair Work Australia, or in relation to the supervision of any industry award applicable to the terms and conditions of employment offered by the applicant and the contract entered into with the visa applicant.

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

44. 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

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

    Alan McMurran
    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.