L K F Pty Ltd (Migration)

[2021] AATA 345

L K F Pty Ltd (Migration) [2021] AATA 345 (14 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  L K F Pty Ltd

CASE NUMBER:  1812447

HOME AFFAIRS REFERENCE(S):          BCC2017/1724254

MEMBER:Nicola Findson

DATE:14 January 2021

PLACE OF DECISION:  Perth

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

Statement made on 14 January 2021 at 6:30pm

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition Nomination stream – position of Café or Restaurant Manager – evidence of meeting training requirements – updated details of financial position – actively and lawfully operating a business in Australia – nominee previously employed in the position – terms and conditions of employment – decision under review set aside 

LEGISLATION

Fair Work Act 2009
Migration Act 1958, ss 140, 245, 359, 360
Migration Amendment (Skilling Australians Funds) Regulation 2018
Migration Regulations 1994, rr 1.13, 2.87, 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 13 April 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 15 May 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 that the applicant’s nomination did not satisfy r.5.19(3)(f) because the delegate was not satisfied the applicant had provided evidence to demonstrate it had met its training requirements during the period of its most recent approval as a standard business sponsor.

5. On 1 May 2018, the applicant applied to the Tribunal for review of the delegate’s decision, and included a copy of the primary decision record for the purpose of the review. The applicant was represented in relation to the review by its registered migration agent.

6. The Tribunal wrote to the applicant on 23 October 2020, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (3). The applicant responded and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:

   ·ASIC records in relation to the applicant;

   ·Financial Statements and Company Tax Returns for the years ended 30 June 2018 and 2019;

   ·Business activity statements (BAS) for the period July 2018 to June 2020;

   ·Current organisational structure chart;

   ·Position description for the nominated position, including detailed examples of work duties relevant to the role;

   ·Updated Contract of employment dated 10 May 2020, between the applicant and the nominee;

   ·Payroll records (including PAYG Payment Summaries) from 2013 to 2020 in relation to the nominee; and

   ·Evidence of expenditure on training.

7. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of material provided to it during the review process, pursuant to s.360(2)(a) of the Act.

8. 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

9. 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)

10. 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.

11. On the basis of the information in the Department’s file, the Tribunal is satisfied that the application was made on the relevant form and was accompanied by the prescribed fee.  The relevant s.245AR(1) certification was also provided in the application form.

12. The Tribunal is also satisfied, on the basis of information in the Department’s file, that the application for approval identifies Ms Thi Thuy Thai as the relevant 457 visa holder and identifies the occupation (Café or Restaurant Manager - ANZSCO 141111) in relation to the position that is listed in ANZSCO and has the same four-digit occupation unit group as the occupation carried out by the relevant holder of the subclass 457 visa.

13. Given the above findings, the requirements in r.5.19(3)(a) are 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. Departmental records confirm that the nominator is the standard business sponsor who last identified Ms Thi Thuy Thai in a nomination made under section 140GB of the Act.

16. The Tribunal has received current evidence that the business is actively and lawfully operating a business in Australia, including ASIC information and financial documents.

17. The Tribunal has also had regard to Departmental records and is satisfied that 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).

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

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

19. 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.

20. In this case, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 visa on 12 September 2013 to work in the nominated occupation of Café or Restaurant Manager with the nominator. This nomination was lodged on 15 May 2017.

21. The applicant has provided to the Tribunal evidence (HR and payroll records, including PAYG Payment Summaries) that the nominee has been employed in the position since April 2013 and has continued to be employed since. The evidence before the Tribunal confirms that the nominee has worked in a full time capacity in the position of Café or Restaurant Manager, for the applicant, for a period of two years whilst holding a Subclass 457 visa.

22. On the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the relevant position for at least 2 years in the 3 years before the nomination was made. The requirements of r.5.19(3)(c)(i) are therefore satisfied.

23. 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)

24. 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.

25. The Tribunal has before it a copy of the most recent signed contract of employment in respect of the nominee, dated 10 May 2020, which states that the applicant will provide full time employment for the nominee for a period of 2 years.  The contract states that the nominee’s salary will be $60,000 plus superannuation.

26. The Tribunal has had regard to the applicant’s financial capacity to employ the nominee and is satisfied, on the basis of the financial reports and its ability to maintain the nominee’s employment to date, that the applicant can provide employment to the nominee for a period of at least 2 years.

27. Given the above, 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 preclude the possibility of an extension. It follows that the requirement in r.5.19(3)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

28. 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.

29. The Tribunal has considered information before it, including current information from payscale.com.au, which indicates that a Café or Restaurant Manager in Western Australia can expect to earn between $40,000 and $68,000 per annum, as well as current job advertisements.  The Tribunal has also considered that the nominee’s terms and conditions of employment are in accordance with the Fair Work Act 2009.

30. On the basis of the information before it, the Tribunal is satisfied that the nominee’s base salary is within the range of that normally paid to a similarly experienced Café or Restaurant Manager.

31. 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.

32. Given the above, the requirement in r.5.19(3)(e) is met.

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

33. 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.

34. Since the Department made their decision refusing the nomination application, the Department has given further approval to the applicant as a standard business sponsor.  This approval was granted on 10 May 2018, for a period of five years. As this is the most recent approval as a standard business sponsor, the Tribunal is required to consider whether the applicant has fulfilled any commitments made in relation to that period.   

35. On 12 August 2018, Schedule 1 of the Migration Amendment (Skilling Australians Funds) Regulation 2018 commenced, which had the effect of repealing r.2.87B and replacing it with new requirements.  Rather than requiring an assessment of whether sponsors have met training benchmarks, the new scheme only requires employers to make a financial contribution on the lodgement of a new nomination application (post 12 August 2018), known as the SAF Levy.  Also included with these amendments was the addition of a transitional provision in schedule 13 of the Regulations, cl.7602(5), which states:

    A person is not required to comply with subregulation 2.87B(2) or (3) in relation to a period of 12 months ending on or after the commencement day.

36. An impact of the transitional arrangement, set out in the Explanatory Statement to the amendments, is that the transitional provision removes the old obligation in relation to the period of 12 months that includes 12 August 2018 so that it only applies to full periods of 12 months that end before 12 August 2018. 

37. In this case, the most recent sponsorship was approved on 10 May 2018, and therefore, the first period of 12 months would end post 11 August 2018.  Given this, there is no obligation on the applicant to comply with the requirement set out in the repealed reg 2.87B.

38. In the circumstances of this case, the Tribunal therefore finds that the training requirement in r.5.19(3)(f) should be disregarded.

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

39. 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. 

40. The Tribunal is not aware of any adverse information known to Immigration about the nominator or person associated with the nominator.

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

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

42. 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.

43. There is no evidence before the Tribunal to indicate that the applicant has not complied with workplace relation laws.

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

    Conclusion

45. 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

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

    Nicola Findson
    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.