LVR Management Pty Ltd (Migration)

[2021] AATA 3203

LVR Management Pty Ltd (Migration) [2021] AATA 3203 (28 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  LVR Management Pty Ltd

CASE NUMBER:  1901563

HOME AFFAIRS REFERENCE(S):          BCC2016/3439264

MEMBER:Sheridan Lee

DATE:28 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 28 July 2021 at 2:56 pm

CATCHWORDS
MIGRATION–nomination – Temporary Residence Transition nomination stream – Café or Restaurant Manager – position associated with the nominated occupation is genuine – financial capacity to employ the nominee full-time for a minimum of 2 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, s 65
Migration Regulations 1994, rr 1.13, 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 8 January 2019 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 to nominate Kulvinder Maliya to work in the occupation of Café or Restaurant Manager on 17 October 2016. 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)(d)(i) of the Regulations because they were not satisfied that the nominee would be employed on a full-time basis in the position for at least two years.

5. Mr Vikas Garg, Director of LVR Management Pty Ltd, appeared before the Tribunal via video on 14 July 2021 to give evidence and present arguments on behalf of the applicant. At the time of the Tribunal hearing, LVR Management had six separate applications for the review of decisions made under r.5.19 before the Tribunal. For the sake of efficiency, the applications were heard together.

6. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing via video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

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. Having reviewed the departmental file, the Tribunal is satisfied that the application:

    ·was made on the approved form 1395 (Internet) and was accompanied by the fee prescribed in r.5.37;

    ·includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s. 245AR(1);

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

    ·identifies the occupation of Restaurant Manager in relation to the position, which is listed in ANZSCO and has the same 4 digit code as the occupation carried out by the Subclass 457 visa holder.

12. Accordingly, 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. Departmental records show that LVR Management was the standard business sponsor that last identified Kulvinda Maliya in a nomination made under s 140GB of the Act. The company was not granted the most recent business sponsorship (granted on 22 March 2021) on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

15. An Australian Securities and Investments Commission extract reports that LVR Management Pty Ltd has been registered as an Australian Proprietary Company since 21 July 2010. The position is based at Truck Stop 31 Restaurant, which has been a registered business name of the company since 30 December 2013.

16. Company financials report that for the financial year ending 30 June 2020, LVR Management had a profit of $432,903. Profit for the preceding two years was $420,920.80 and $338,056.15. The company financials are largely consistent with the figures reported in the Business Activity Statements (BAS) lodged with the Australian Taxation Office (ATO) for the same period.

17. On the basis of the above information, the Tribunal is satisfied that LVR Management is actively and lawfully operating a business in Australia.

18. The Tribunal finds that the requirements in r.5.19(3)(b) are 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. Departmental records show that Kulvinder Maliya was first granted a Subclass 457 visa on 15 September 2014. The current application was made on 17 October 2016.

21. The applicant supplied the Tribunal with a contract of employment between Kulvinder Maliya and LVR Management, dated 8 May 2014, for the full-time position of Restaurant Manager.

22. Pay As You GO (PAYG) payment summaries for Kulvinder Maliya were provided for the years ending 30 June 2015 through to 2020. The PAYG all list LVR Management as the employer. Notice of Assessments issued by the ATO to Kulvinder Maliya were also supplied.

23. The Tribunal accepts that Mr Maliya has been employed by LVR Management in the position since at least 15 September 2014 when he was granted the Subclass 457 visa. A period of two years and one month prior to the current application. 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 fulltime basis for at least 2 years on terms that do not expressly preclude the possibility of an extension. Regulation r.5.19(3)(c)(i) applies in the current matter.

25. The applicant supplied the Tribunal with an updated contract of employment between Kulvinder Maliya and LVR Management, dated 20 July 2021. The contract provides for two years of fulltime employment in the position of Restaurant Manager from the date of the grant of the associated visa. The annual salary is $62,000.

26. Having reviewed the company financials and BAS, the Tribunal is satisfied that the company can financially sustain the position for the minimum two-year period. Below is a table of the figures reported in the BAS.

FY 2018-2019	1st Qtr	2nd Qtr	3rd Qtr	4th Qtr	Total
Total sales	4,010,806.00	3,948,653	4,357,092	4,137,177	16,453,728
Total salary, wages and other payments	147,347	168,743	181,273	194,379	691,742
FY 2019-2020	1st Qtr	2nd Qtr	3rd Qtr	4th Qtr	Total
Total sales	5,531,875	4,631,544	4,058,253	4,553,250	18,774,922
Total salary, wages and other payments	241,547	232,476	259,946	261,086	995,055

1. 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)

2. 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.

3. An organisational chart submitted by the applicant shows that the restaurant employs a cook, an assistant cook and three permanent front of house staff. All of these positions report to the Restaurant Manager.

4. A Food and Beverage Supervisor (Level 5) covered by the Restaurant Industry Award 2020 is entitled to a minimum rate of $24.54 per hour ($48,491 per annum). Penalty rates are applicable on weekends and public holidays and higher rates are payable for shift work. However, under the award, employees can agree to an annualised salary of 125% the minimum rate, which works out as $60,613.75 for a Level 5 employee. As outlined above, the nominee’s salary is $62,000 per annum and the contract of employment provides for other minimum entitlements in line National Employment Standards and Superannuation Guarantee.

5. The contract contains a clause requiring an annual salary review to ensure that the salary will continue to meet the minimum requirements.

6. The Tribunal is satisfied that the terms and conditions applicable to the position are 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. Accordingly, the requirement in r.5.19(3)(e) is met.

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

7. 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.

8. LVR Management was most recently approved as a Standard Business Sponsor on 22 March 2021. Where the most recent standard business sponsorship was approved on or after 18 March 2018, no training obligations nor commitments made for the purpose of satisfying the sponsorship approval criteria apply. This is because, for applications for approval of standard business sponsorship which were undetermined as at 18 March 2018 or made after that date, the criteria in regs 2.59(d) and (e) no longer applied. While this circumstance does not appear to have been contemplated by the legislative changes, the Tribunal finds the requirement to be satisfied.

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

9. 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. 

10. There is no adverse information contained on the departmental file and the Tribunal infers that this is because there is no adverse information known to Immigration about the nominator or person associated with the nominator.

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

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

12. 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.

13. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.

14. At the Tribunal hearing, Mr Garg confirmed that no concerns had been raised with him in respect of compliance with workplace relations laws.

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

16. 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

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

    Sheridan Lee
    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.