Lolita Petroleum Sales (Villawood) Pty Ltd (Migration)

[2019] AATA 6595

Lolita Petroleum Sales (Villawood) Pty Ltd (Migration) [2019] AATA 6595 (14 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Lolita Petroleum Sales (Villawood) Pty Ltd

CASE NUMBER:  1716224

HOME AFFAIRS REFERENCE:               BCC2016/3069660

MEMBER:Lilly Mojsin

DATE:14 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 14 November 2019 at 12:56pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Accountant –failure to keep records – cash payments – Australian Border Force monitoring – sponsorship bar – admitted breach – immediately rectified processes – cooperative – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140, 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 2.82, 5.19, 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 10 July 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, Lolita Petroleum Sales (Villawood) Pty Ltd trading as Apex Petroleum Villawood (ACN 608219405), applied for approval of the position of 15 September 2016.

3. 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).

4.     In this review, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

5.     The delegate refused the application on the basis the applicant’s nomination did not satisfy s.5.19(3)(g)(ii) of the Regulations because the delegate was satisfied there was adverse information known to the Department about the nominator and the delegate was not satisfied that it was reasonable to disregard any adverse information.

6.     The applicant, represented by its General Manager, Charles Zouki, who appeared before the Tribunal on 14 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Saief Ahmed.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant, applied for approval of a nominated position pursuant to r.5.19(1B). The title of the position offered is Accountant (General) and the occupation is Accountant. The ANZSCO Code is 221111 and the location of the employment is in Wetherill Park NSW. The nominee is Saief Ahmed [nominee].

9. The issue in this application, as identified by the delegate, is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream in r.5.19(3), extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

10.      Regulation 5.19(3)(g) requires that:  

(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;

11.      On 9 February 2017, The Australian Border Force (ABF) commenced monitoring of the applicant's sponsorship obligation. On 16 February 2017, the ABF conducted a site visit to the nominated address. A monitoring commencement letter was issued.

12.      On 1 March 2017, the applicant responded to the monitoring commencement letter and on 12 May 2017, ABF sent a Notice of Intention to Take Action (NOITTA) to the applicant for potential breach of Regulation 2.82-failure to keep records. On 24 May 2017, the applicant responded to the NOITTA issued by the ABF, making a disclosure of the breach.

13.       On 13 June 2017, the delegate decided to bar the applicant, under s.140M(1)(c), from sponsoring more people for Subclass 457 Temporary Work (Skilled) visa for 3 months. The sponsorship bar ended on 13 September 2017.

14.      The applicant provided to the Department the following documents:

• ABN/ASIC Registration
• Organisational Chart
• Contract of Employment
• 2018, 2017, 2016 Company Tax Return of applicant
• 2019, 2018, 2017, 2016 Financial Statements
• Business Activity Statements
• Payslips of nominee
• SBS approval
• Nomination approval
• 457 visa approval
• Market salary rate
• Training receipt
• Nomination application

15.      At the Tribunal hearing, the Tribunal asked the applicant’s representative if he worked full time in the business and he said he is employed full time in the business and he has the control of the business, as its General Manager. The applicant has 1 service station that has 5 employees. He is paid $1000.

16.      The Tribunal asked the nominee, who attended the hearing, about the employees of the business other than himself. The Tribunal noted that salaries shown in the financial statement were 2018 $207,171 and 2017 $213464 and said that it appeared that the company profit was $1 AND .50.

17.      The nominee advised, as the applicant’s accountant, that the applicant was part of a group of 4 service stations, each with their own company. The staff salaries were paid across the 4 companies as staff had different shifts.

REASONS AND FINDINGS

18. The issue in this review 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.

19.      The applicant’s business is a service station.

20.      Regulation 5.19(3) sets out the requirements for approval of the nomination of a position in Temporary Residence Transition stream.

21. The delegate found the applicant did not satisfy r.5.19 (3)(g)(ii).

22.      Regulation 5.19(2)(a) requires that the application must be made in accordance with approved form 1395…; and 5.19 (2) (aa) include a written certification by the applicant nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection of the Act; and  (b)     be accompanied by the fee mentioned in regulation 5.37.

23.      The Tribunal has had regard to the departmental file and finds that the application was made in accordance with the approved form. The application also included a written certification by the applicant 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. Accordingly, the Tribunal finds that the application for approval was made in accordance with r. 5.19(2)(a) and r. 5.19(2)(aa).

24.      The Tribunal has had regard to the departmental file and finds that the application was accompanied by the fee prescribed in r.5.37. Accordingly, the Tribunal finds that the application for approval was made in accordance with r. 5.19(2)(b).

25.      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 must identify a relevant person and occupation.

26. The Tribunal has had regard to the departmental file and finds that the application was made in accordance with the approved form and accompanied by the prescribed fee, r. 5.19(2) and therefore the requirements of r.5.19(3)(a)(i) have been met.

27. The applicant for approval of the nominated position of Accountant (General) ANZSCO (221111) was Saief Ahmed [nominee]. According to departmental records the nominee holds a subclass 457 visa granted to him on the basis of satisfying subcl.457.223(4) of schedule 2. As a result, the Tribunal finds that the application for approval meets the requirements of r.5.19 (3)(a)(ii).

28.      Sub-paragraph 5.19(3)(a)(iii) requires the application for approval to identify an occupation in relation to the position that is listed in ANZSCO and has the same four digit code as the occupation carried out by the Subclass 457 visa holder.

29. The evidence before the Tribunal indicates that the applicant’s most recent Subclass 457 nomination, with respect to the nominee’s position of Accountant (General) ANZSCO 221111, was approved on 4 April 2016. The nominee was the holder of the subclass 457 visa at the time of lodgement of the nomination application under review. The applicant’s nomination application that is the subject of this review with regard to the nominee’s position has identified the occupation of Accountant (General) ANZSCO (221111). The Tribunal finds that the requirements of r 5.19(3)(a)(iii) are met.

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

31.      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 a standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, as part of the most recent sponsorship approval.

32. According to departmental records, the nominator was approved as a Standard Business Sponsor on 4 April 2016 in relation to the Subclass 457 visa application lodged by the applicant. Accordingly, the Tribunal finds that the applicant, was the Standard Business Sponsor who last identified the nominee as the relevant Subclass 457 visa holder in a nomination under s.140GB. As a result, the Tribunal finds that the requirements of r.5.19(3)(b)(i) have been met.

33.      The Tribunal has had regard to business records available, being Financial Statements for 2016, 2017 2018, 2019 (including profit and loss and balance sheet), Tax Returns, Business Activity Statements. The Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia. The Tribunal finds that the requirements of r.5.19(3)(b)(ii) have been met.

34. Therefore, the requirement in r.5.19(3)(b) is met.

35. Paragraph 5.19(3)(c) requires the applicant to satisfy either sub-paragraph 5.19(3)(c)(i) or (ii). 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 in the 3 years immediately before the application.

36.      At the time of nomination application on 15 September 2016, the nominee had been working in the nominated position for more than 2 years as the holder of a Subclass 457 visa.

37.      The applicant provided the Tribunal with nominee’s PAYE Statements and Notice of Assessment for the financial years 2014, 2015, 2016, 2017 and 2018.  The Tribunal is satisfied that the nominee as a 457 visa holder, has been employed full time in Australia in the position for which he holds a Subclass 457 visa for at least two out of the three years immediately before the nomination application.

38. Having regard to the evidence before it, the Tribunal finds that the requirements of r.5.19(3)(c)(i) have been met. Given the above findings, the requirement in r.5.19(3)(c) is met.

39. 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.

40. The Tribunal has had regard to the nominee's employment history and the signed offer of employment and the employment contract dated 3 November 2015 states that the annual salary of the nominee is $72 800 plus superannuation. The Tribunal is satisfied that the applicant will employ the nominee for at least two years full-time and that there are no terms that expressly preclude the possibility of an extension. Given the above findings, the requirement in r.5.19(3)(d) is met.

41.      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.

42.      The Tribunal has had regard to the nominee’s most recent employment contract that details the terms and conditions of employment including, position duties, salary, leave entitlements and superannuation. The Tribunal is satisfied the nominee is paid the annual salary plus superannuation, detailed in the Contract of Employment.

43.      There is no equivalent Australian employee employed by the applicant. The Tribunal has assessed the external market salary data provided by the applicant in Australian Government Job Outlook ($65000 -$90000) provided by the applicant. The nominee’s current base salary of $72 800 is in line with the market rate for comparable roles. Therefore, the evidence before the Tribunal is such that the terms and conditions of employment applicable to the nominated position would be no less favourable than the terms and conditions that are/would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the applicant's business premises.

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

45.      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.

46.      A training receipt for $3 500 from Sydney TAFE dated 10 February 2017 marked Employer Nomination Scheme Benchmark A, has been provided to the Tribunal.

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

48. Regulation 5.19(3)(g) requires that there is no adverse information known to the Department about the nominator or person 'associated with' the nominator; or it is reasonable to disregard any adverse information known to the Department about the nominator or a person 'associated with' the nominator. For these purposes, 'adverse information' and 'associated with' have the meaning given in r.2.57 (2) and (3): r.5.19

49.      The Tribunal is satisfied that r. 1.13A (1)(f) is applicable to the applicant as the applicant has been the subject of an administrative action by a competent authority for a possible contravention of such a law.

50.      The delegate found that the applicant has contravened r.2.82 because the applicant made cash payments for the nominee that are not capable of being verified by an independent person. The applicant provided a time and wage book signed by the nominee for cash payments to the Department and the applicant immediately rectified his processes. The delegate did not consider it reasonable to disregard the adverse information as the adverse information was substantiated.

51.      The Tribunal notes that the applicant readily cooperated during the monitoring process. The applicant provided a time and wage book signed by the nominee for cash payments to the Department and the applicant immediately rectified his processes. There is no evidence before the Tribunal to suggest that the applicant has breached any other regulations.  The applicant acknowledged it made a mistake. In light of the applicant admitting the breach and immediately rectifying the breach and in light of the passage of time since the original decision was made without any further breaches, the Tribunal exercises its discretion.

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

53.      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.

54. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance relating to workplace relations. Accordingly the requirements of r.5.19(3)(h) are met.

55. 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

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

   Lilly Mojsin
   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.

   Schedule 1 – Training Benchmarks and Training Requirements

   1.Training Benchmarks

   The business is not required to demonstrate that they are an industry leader in training.

   The training benchmarks for an established business are:

   Training Benchmark A:

   Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to a training fund that operates in the same or a related industry of the business.

   Recent expenditure for Training Benchmark A is defined as expenditure made in the previous financial year or the previous 12 months, as evidenced by a receipt for the payment or a letter from the relevant fund. 

   Expenditure is not acceptable for the purposes of meeting this benchmark where made to:

   (a)training funds operated by Registered Training Organisations (RTOs) or  private individuals; or

   (b)funds that allocate a percentage or part of the contributions received to commissions or offer refunds for failed immigration applications. 

   Training funds that may be used to meet the requirement of this benchmark are:

   (a)an industry training fund: that is, a statutory authority responsible for providing funding for training of eligible workers in certain industries;

   (b)a fund managed by a recognised industry body that provides training opportunities in their industry and quarantines contributions to the fund for training purposes only; or

   (c)a recognised scholarship fund operated by an Australian university or TAFE college only. 

   OR

   Training Benchmark B:

   Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training of employees of the business who are Australian citizens and Australian permanent residents. 

   The business is also required to show that the provision of training is related to the purpose of the business.

   Recent expenditure for Training Benchmark B is defined as expenditure made in the previous financial year or the previous 12 months, as evidenced by a receipt for the payment(s) or a contract for employment of the relevant individual for whom salary payments are being included within expenditure that can count towards the benchmark.  

   Applicable expenditure

   Expenditure that can count towards this benchmark includes:

   a)payments for Australian employees to undertake a formal course of study, including any reasonable and necessary associated costs (e.g. costs of travelling to the training venue or access an online training programme);

   b)payments to RTOs to deliver face-to-face training to Australian employees that will contribute to an Australian Qualifications Framework qualification;

   c)purchase of an eLearning platform or standalone training software;

   d)payments to cover the salary of Australian employees:

   ·     engaged by the business as apprentices or trainees under a formal training contract, or

   ·     who

   o   have completed an undergraduate or higher degree in a university within the last 2 years, and

   o   are participating in a formal, structured graduate program for up to 2 years, or completing a professional year following their graduation;

   e) the salary of a person whose sole role is to provide  training to Australian employees;

   f)expenditure to attend conferences for continuing professional development.

   Note: Australian employee is defined as an Australian citizen or Australian permanent resident.

   Inapplicable expenditure

   Expenditure that cannot count towards this benchmark includes:

   (a)on the job training that is not otherwise identified above as applicable expenditure for Training Benchmark B;

   (b)training that is not relevant to the industry in which the business operates;

   (c)training undertaken by persons who are principals in the business or their family members;

   (d)training that has a very low skill level having regard to the characteristics and size of the business;

   (e)induction training;

   (f)staff salaries apportioned to time spent undertaking online or other training courses;

   (g)purchase of software for use in normal duties;

   (h)membership fees;

   (i)purchase of books, journals or magazine subscriptions;

   (j)attending conferences for purposes other than continuing professional development; and

   (k)hiring a booth at a trades show, conference or expo.