Mico Company Pty Ltd (Migration)

[2020] AATA 328

Mico Company Pty Ltd (Migration) [2020] AATA 328 (11 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mico Company Pty Ltd

CASE NUMBER:  1712087

DIBP REFERENCE(S):  BCC2016/3997969

MEMBER:George Hallwood

DATE:11 February 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 11 February 2020 at 12:30pm

CATCHWORDS

MIGRATION – Nomination – Temporary Residence Transition nomination stream – financial capacity – employed full time – financial documents provided – profitable business – nomination approved upon review – decision under review set aside  

LEGISLATION

Migration Act 1958 (Cth), ss 140GB, 245AR(1)
Migration Regulations 1994 (Cth), r 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 Immigration on 22 May 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 25 November 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 (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).

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 found there was insufficient evidence that the business has the financial capacity to pay the full-time salary for the nominated position for at least two years.

5. Mr Michael Thum, a director of Mico Company Pty Ltd (Mico) appeared before the Tribunal for the applicant on 6 February 2020 to give evidence and present arguments. As this was a combined hearing with the related visa matter case file number 1716848 the Tribunal also received oral evidence from Mr Kuan-Chih Huang, the primary subclass 186 visa nominee and, from his wife Ms Chih-Lien Liu.

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

7. 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

1. 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)

1. 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.

2. I have had regard to the material provided and oral evidence and I am satisfied that the application was compliant with the process set out in r.5.19(3)(a) as the application:

   ·   was made on the correct form and 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 a person, Mr Kuan-Chih Huang who held a Subclass 457 visa during the period 10 April 2013 until 10 April 2017 and granted on the basis of satisfying cl.457.223(4); and

   ·   identifies an occupation “Café or Restaurant Manager”, in relation to the position “Restaurant Manager”, that is listed in ANZSCO, and has the same 4 digit code - 1411 as the occupation carried out by the Subclass 457 visa holder.

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

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

1. 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.

2. The Tribunal considered the claims and evidence presented in relation to the status of the applicant and in particular:

   ·   Departmental records indicate the applicant was approved as, and is currently,  a standard business sponsor from 12 July 2016 for a period of five years until 12 July 2021; and

   ·   The applicant last identified the holder of the Subclass 457 visa, Mr Kuan-Chih Huang, in a nomination made under s.140GB of the Act; and

   ·   Oral evidence at the hearing, current financial statements and electronic lodgements with the Australian Taxation Office (ATO) and a current company extract dated 5 November 2019 provided to the Tribunal demonstrate the business has been, and is currently, actively and lawfully operating a business in Australia; and

   ·   The applicant stated that the business only operates in Australia; and

   ·   Departmental records demonstrate 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).

3. I am satisfied that the applicant was the relevant standard business sponsor who is actively and lawfully operating a business in Australia and that they did not meet the relevant criteria relating to overseas operations in the most recent sponsorship approval.

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

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

1. 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.

2. I note that the provisions of r.5.19(3)(c)(ii) relate to certain independent contractors holding subclass 457 visas and are not relevant to this case.

3. The applicant, Mico Company Pty Ltd operated two restaurants; Mi-Ne Sushi in Inaloo Western Australia; and Ramen Samurai, in Victoria Park Western Australia. Mi-Ne Sushi closed on 22 June 2019 due to renovations in the shopping centre in which it was located. The applicant indicated that they are planning to open another restaurant and are currently negotiating a suitable location.

4. The nomination was made on 25 November 2016 so the Tribunal must be satisfied that the nominee, Mr Huang, has been employed full time in Australia in the position for which he holds a subclass 457 visa for at least two of the three years preceding the nomination application.

5. Mr Huang was granted a subclass 457 visa on 10 April 2013 and commenced working as a “Restaurant Manager” with Mico in their sushi bar in Inaloo and their restaurant at Victoria Park, Western Australia on 15 April 2013. Oral and written evidence supports that Mr Huang has continued to work full time (38 hours a week) with the applicant in the nominated position to which the 457 visa relates since that date.

6. The period between the nominee commencing employment on 15 April 2013 and the nomination application on 25 November 2016 is greater than two years. The applicant has continued to operate the Mi-Ne Sushi restaurant until 22 June 2019 and continues to operate Ramen Samurai restaurant.

7. For these reasons I am satisfied based on the evidence provided that Mr Huang was employed full time in Australia in the position for which he held a subclass 457 visa for more than two of the three years preceding the applicant’s nomination.

8. 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)

1. 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.

2. Oral and documentary evidence, in particular the written submissions, employment contract dated 1 July 2019 and financial records confirm:

   ·   The applicant confirmed that they will continue to employ Mr Huang full time as a Restaurant Manager for at least two years from the date Mr Huang’s permanent resident visa is granted.

   ·   Although the applicant made a loss in 2018 to 2019 due to the closure of the Mi-Ne Sushi restaurant, the applicant’s financial records from the last four financial years demonstrate that the applicant is now profitable. Mico made a loss due to adding back losses on intangibles-goodwill and losses on plant and equipment when they closed Mi-Ne Sushi but continued to make an operating profit in 2018 to 2019 financial year. Mr Thum indicated at the hearing the business projections for the 2019 to 2020 financial year are on track for $100,000 profit.

   ·   The applicant and has continued to pay Mr Huang his full time restaurant manager salary since April 2013

   ·   There is no condition in Mr Huang’s employment contract excluding the possibility of extending the period of employment

   ·   The employment contract continues Mr Huang’s employment as a Restaurant Manager (ANZSCO: 1411) “… for a minimum of 4 years, with the option of continuing in the position after the end of 4 years.”

3. Having considered the evidence I am satisfied that the applicant will continue to employ Mr Huang on a full time basis as a Restaurant Manager for at least two years.

4. 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)

1. 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.

2. Oral and documentary evidence, in particular the written submissions, contract of employment and financial records confirm:

   ·   There is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

   ·   The employment contract dated 1 July 2019 is current and Mr Huang’s base salary is $58,760 plus 9.5% superannuation.

   ·   That the terms and conditions of employment provided to Mr Huang, when compared with advertisements for similar positions in Western Australia, are market rate, and within the range of market rate salaries and conditions.

   ·   Mr Thum’s oral evidence was that the applicant used seek.com and indeed.com as well as his knowledge of the industry in determining market rate for the terms and conditions of employment.

3. I am satisfied that the terms and conditions of employment applicable to the nominated position are no less favourable than those that would be provided to an Australian citizen or permanent resident performing the same work in the same workplace at the same location.

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

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

1. 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.

2. As the applicant’s most recently approved standard business sponsorship commenced on 12 July 2016 for a period of five years the relevant training benchmarks are contained in IMMI13/030.

3. A business meets the benchmarks by demonstrating:

   recent expenditure to the equivalent of at least 2% of the payroll of the business to an allocated industry training fund and a commitment to maintain expenditure in each fiscal year for the term of approval as a sponsor, or

   recent expenditure to the equivalent of at least 1% of the payroll of the business in the provision of training to employees of the business and a commitment to maintain expenditure to that level each fiscal year for the term of approval as a sponsor.

4. The applicant’s financial statements and industry training fund receipts demonstrate that they have continued to maintain expenditure equivalent to 2% of the payroll of the business meeting the required benchmarks:

12/7/16 – 11/7/17	12/7/17 – 11/7/18	12/7/18 – 11/7/19
Payroll	$289,995	$374,851	$315,966
Training contribution	$5,805	$7,500	$9,350
%	2%	2%	3%

1. The Tribunal is satisfied the training commitments and obligations are met.

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

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

1. 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. 

2. The Tribunal has considered the information provided by the Department. Nothing in the information before the Tribunal indicates that adverse information is known to Immigration about the applicant or an associated person.

3. For these reasons I am satisfied that there is no adverse information known to Immigration about the applicant or an associated person.

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

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

1. 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.

2. Mr Thum for the applicant gave evidence that the applicant has complied with all applicable workplace relations laws. Mr Huang corroborated this evidence.

3. There is no evidence before the Tribunal that contradicts these submissions.

4. For this reason I find that the applicant 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.

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

CONCLUDING PARAGRAPH

1. 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.

George Hallwood
Member

ATTACHMENT - Extracts from the Migration Regulations 1994

5.19Approval of nominated positions (employer nomination)

…

1. 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

1. 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.