McMillan Hospitality Management Pty Ltd (Migration)

[2020] AATA 5956

McMillan Hospitality Management Pty Ltd (Migration) [2020] AATA 5956 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  McMillan Hospitality Management Pty Ltd

CASE NUMBER:  1813721

HOME AFFAIRS REFERENCE(S):          BCC2017/2186257

MEMBER:Mary Sheargold

DATE:11 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 December 2020 at 7:29pm

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residence Transition Nomination stream – position of Cook – financial capacity to employ the nominee for 2 years – updated evidence of business operations – previous employment of the nominee – terms and conditions of employment – training obligations – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 140, 245, 359, 360
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 25 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 21 June 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 the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because it did not show financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years.

5. 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

6. 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.

7. On 9 November 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting it to provide updated information in relation to its business.  On 17 November 2020, the applicant provided the following documents:

   ·a copy of the Australian Business Number registration for the applicant;

   ·a copy of the Certificate of Registration of a Company from the Australian Securities and Investments Commission;

   ·copies of business activity statements (BAS) for the applicant’s business for each quarter from 1 July 2018 to 30 June 2020 inclusive;

   ·detailed financial statements for the applicant’s business for the financial years ending on 30 June 2019 and 30 June 2020;

   ·copies of the company tax returns for the applicant for the financial years ending on 30 June 2019 and 30 June 2020;

   ·organisational charts for the applicant’s business dated 12 November 2020;

   ·copies of employment contracts for the nominee;

   ·a job description for the nominee’s position;

   ·an extract from the ANZSCO Code for the occupation group of Chefs;

   ·PAYG summaries for the nominee for each financial year ending on 30 June from 2015 to 2019 inclusive;

   ·evidence of Departmental approval of sponsorship of two other staff members of the applicant; and

   ·a copy of an Approval of Sponsorship notification from the Department dated 19 February 2020.

8. At the Tribunal’s request, on 11 December 2020 the applicant provided an updated and duly executed employment contract for the nominee dated 11 December 2020.  Having considered all of the documentation received by the applicant, pursuant to s.360(2)(a) of the Act, the Tribunal has determined that it is able to decide the review in the applicant’s favour on the basis of the material now before it.

   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 Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form.  The letter from the Department to the applicant dated 21 June 2017 indicates that the nomination application fee has been paid.

11. The application for approval identifies Mr Ashwinkumar Prajapati, the nominee who, according to Departmental records, held a Subclass 457 visa from 21 January 2014 that was granted on the basis of satisfying cl.457.233(4) of Schedule 2 of the Regulations.

12. The application for approval identifies the occupation of Cook, ANZSCO 351411.  Based on the employment documents for the nominee, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by him as the holder of a Subclass 457 visa.  Accordingly, the Tribunal is satisfied that this occupation carries the same 4 digit code (3514) as the occupation carried out by the nominee whilst he held the Subclass 457 visa.

13. Given the above findings, the requirement in r.5.19(3)(a) is 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 was the standard business sponsor who last identified Mr Prajapati in a nomination made under s.140GB of the Act.  The nominator 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).

16. The applicant has provided the Tribunal with evidence of registration of its company and its ABN, BAS, company tax returns, detailed financial statements, and other information about the business’s activities.

17. On the basis of the material before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia. Therefore, the requirement in r.5.19(3)(b) is met.

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

18. 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.

19. In this case, the relevant provision is set out in r.5.19(3)(c)(i). The nomination application was made on 21 June 2017.

20. The nominee was granted a Subclass 457 visa in the nominated occupation of Cook on 21 January 2014, sponsored by the applicant.  According to Departmental records, the applicant was approved as a standard business sponsor from 22 June 2012 to 22 June 2015, and according to documents provided by the applicant, the applicant has been approved as a standard business sponsor from 19 February 2020 to 19 February 2025.

21. The Tribunal has had regard to the PAYG statements for Mr Prajapati for the financial years ending on 30 June in each of 2014 to 2019 inclusive and the contracts of employment dated 12 May 2015 and 6 June 2017, and finds that the nominee has worked for the applicant continuously since being granted his Subclass 457 visa in 2014.

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 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.

24. The applicant has provided the Tribunal with a copy of the employment contract between the applicant and the nominee dated 11 December 2020 (the employment contract).  The employment contract states that the nominee will be employed on a full time basis, and clause 6 of the employment contract notes that the nominee will be required to work 38 hours per week plus any reasonable additional hours.

25. Clause 1 of the employment contract states that the nominee will be employed “full time on a Subclass 186 visa for two years minimum”. The Tribunal is satisfied that the terms and conditions of employment do not expressly exclude the possibility of extending the period of employment beyond the initial minimum two year term expressed in the employment contract.

26. The Tribunal has considered the detailed financial statements for the applicant’s business for the financial years ending on 30 June 2019 and 30 June 2020, as well as the PAYG statements for the nominee for each financial year from the year ending on 30 June 2014 to the year ending on 30 June 2019 inclusive.  The Tribunal notes that the applicant holds significant reserves and has been able to weather the impact of Covid-19 in 2020 with relative ease, given the nature of the applicant’s business.  Based on the information set out in those documents, the Tribunal is satisfied that the applicant has the financial capacity to pay the nominee’s salary of $60,000 per annum plus 9.5% superannuation for at least 2 years.

27. Based on the evidence before it, 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 exclude the possibility of extending the period of employment.

28. 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)

29. 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.

30. The Tribunal has considered the employment contract from 2017, which expressly sets out the nominee’s salary.  The nominee’s salary is set at $60,000 per annum plus superannuation.  The Tribunal notes that the nominee is employed as a Cook Grade 3 (Tradesperson Level 4).  Under the terms of the Restaurant Industry Award 2010 (MA000119) (the Award), the minimum weekly rate of pay for this level employee is $862.50, which equates to an annual salary of $44,850.  The Tribunal notes that the nominee’s salary of $60,000 is well above this minimum salary set out in the Award.

31. The Tribunal has considered the terms of the employment contract and finds that the provisions with respect to leave (including long service leave), notice, and termination are in accordance with the obligations in the Award and the minimum standards set out in the National Employment Standards.

32. Based on all the evidence before it, 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.

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

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

34. 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.

35. As set out above, the Tribunal notes that the applicant’s most recent standard business sponsorship was approved on 19 February 2020.  The requirements at the time of the most recent sponsorship approval did not include any training commitments that have to be fulfilled by the applicant. The Tribunal notes that the sponsorship obligation to provide training no longer applies.  In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied.

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. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.

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. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.  The Tribunal notes that the applicant has provided evidence that it pays superannuation to its employees, and notes that the employment contract provides the minimum terms and conditions of employment set out in workplace relations legislation.

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

43. 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

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

    Mary Sheargold
    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.