MOKISHIDE PTY LTD (Migration)

[2020] AATA 2478

MOKISHIDE PTY LTD (Migration) [2020] AATA 2478 (1 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MOKISHIDE PTY LTD

CASE NUMBER:  1716795

DIBP REFERENCE(S):  BCC2016/4199696

MEMBER:Karen McNamara

DATE:1 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 1 April 2020 at 12:56pm

CATCHWORDS
MIGRATION – nomination –Temporary Residence Transition nomination stream – Interior Designer –documentation and submissions provided – standard business sponsor – actively and lawfully operating a business in Australia – financial capacity of the business to employ the nominee for at least 2 years full time – no less favourable terms and conditions of employment – decision under review set aside

LEGISLATION
Migration Act 1958, ss 245, 359
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 Immigration (the delegate) on 18 July 2017, to reject the application by Mokishide Pty Ltd (the applicant) 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 13 December 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 found that the applicant’s nomination application failed to demonstrate that the nominee would be employed by the applicant for at least two (2) years, as required under subregulation 5.19(3)(d)(i). The delegate therefore refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3) (d).

5. The applicant applied to the Tribunal on 1 August 2017 for review of the delegate’s decision. A copy of the delegate’s decision was provided to the Tribunal.

6. The applicant was represented at the hearing by Mr Han Hoo Lim. Mr Lim appeared before the Tribunal on 12 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Mihyun Ju (the nominee). The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

8. At the conclusion of the hearing, the Tribunal invited the applicant to provide further documentation including;

   ·Evidence of payment towards meeting their training obligation and commitment during the period of most recent approval as a standard business sponsor.

   ·Business and nominee’s bank account statements showing payment of salary to the nominee for period (February 2018 to February 2020)

   ·Workers Compensation Policy (wages declared)

   ·Nominee’s PAYG 2019

   ·Nominee’s NOA 2018

   ·Submission re: training

9. The Tribunal advised the applicant the abovementioned documentation was required by close of business Monday 16 March 2020.

10. On 16 March 2020, the Tribunal received the following documentation from the applicant:

    ·Business and nominee’s bank account statements

    ·Financial statements - Financial Years 2018 and 2019.

    ·Workers Compensation Certificate of Currencies

    ·Nominee’s NOA’s 2018 and 2019 financial years

    ·Nominee’s PAYG 2018 financial year

    ·Training invoices

    ·Submission dated 16 March 2020

11. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

12. 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

13. 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.

    Background

14. The applicant is an Interior Design business trading as StudioMKZ. The applicant told the Tribunal the business was established in October 2006 and is located in Pyrmont Sydney NSW. The business was registered with ASIC on 23 October 2006. The applicant specialises in spatial design and provides services to the retail industry in the design and installation of shop fitouts.

15. The applicant sponsored Ms Mihyun Ju, for her Subclass 457 Visa, which Department records confirm that she held at the time of the nomination application.

16. The applicant’s most recent approval as a standard business sponsor was 28 November 2014 to 28 November 2017.

17. Department records show that the nominee was granted a 457 Visa on 28 November 2014. Information before the Tribunal shows that the nominee commenced employment with the applicant in July 2014 and has occupied the position of Interior Designer (ANZSCO 232511) since.

18. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant.  While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

    The application must be compliant: r.5.19(3)(a)

19. 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.

20. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly, the requirements of r.5.19(3)(a)(i) are met.

21. The application for approval identifies Ms Mihyun Ju, who according to Department records, was granted a subclass 457 Visa on 28 November 2014 on the basis of satisfying cl.457.223(4) of Schedule 2. Accordingly, the requirements of r.5.19(3)(a)(ii) are met.

22. The occupation identified in the application is Interior Designer (ANZSCO 232511). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee, the nominee’s contract of employment, payroll records and Department records that the occupation identified is the same occupation as that carried out by the nominee as the holder of a subclass 457 Visa. The Tribunal is also satisfied that this occupation carries the same four-digit code as the occupation carried out by the nominee whilst she held the Subclass 457 Visa. Accordingly, the requirements of r.5.19(3)(a)(iii) are met.

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

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

24. 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.

25. The Department’s records confirm the applicant was granted the most recent business sponsorship in the period 28 November 2014 to 28 November 2017.

26. The applicant has provided to the Tribunal copies of BAS returns and financial records, recording the business has income from sales and has paid wages and withheld tax. The business’s financial statements confirm that the business derives income from the operation of an Interior Design business. ASIC records before the Tribunal confirm that the business name is registered.

27. Based on ASIC information, financial documents, workers compensation details and the applicant’s oral evidence, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and did not, meet regulation 1.20DA or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor.

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

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

29. 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.

30. Department records show that the nominee was granted a subclass 457 visa on                 28 November 2014. Evidence before the Tribunal including the nominee’s PAYG summaries, payroll records and bank statements, show that the nominee commenced employment with the applicant in July 2014 and has continued to be employed by the applicant in the position of Interior Designer since. The applicant has provided copies of the nominee’s ATO PAYG Summaries, payslips, bank statements and Notice of Assessments (NOA’s) confirming that the nominee, during the term of her employment with the applicant, has been paid in excess of the full-time nominated salary of $60,000 per annum. The nominee’s 2019 PAYG summary shows the nominee’s taxable income was $79,865.

31. Based on this evidence, the Tribunal is satisfied the nominee has been employed full time in the occupation of Interior Designer, since commencing employment with the applicant whilst the holder of a Subclass 457 Visa in July 2014. The Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 Visa for at least two years in the three-year period immediately before this nomination application was made. The requirements in r.5.19(3)( c)(i) have therefore been met.

32. 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)

33. 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.

34. The Tribunal notes that the occupation, for which the nominee held the Subclass 457 Visa, is that of Interior Designer (ANZSCO 232511). As the occupation is not one of those specified in the relevant instrument for the purposes of r.5.19(3) (c )(ii), the nominee is not a person described in r.5.19(3) (c )(ii) and the applicant is therefore not exempt from having to satisfy the requirement in r.5.19(3)(d). As the nominee is a person described in r.5.19(3)(c)(i), the applicant must satisfy the requirements of r.5.19(3)(d).

35. The Tribunal examined the financial information submitted by the applicant. The applicant’s BAS returns for the 2018 and 2019 financial years, show that the applicant recorded in 2018 sales of $777,125 and a total salary and wage expense of $480,810. In 2019 the applicant’ BAS returns recorded sales of $869,056 and wage expense of $534,333.

36. In considering whether the business has the financial capacity to pay the nominated base salary of $60,000 per annum plus 9.5% superannuation to the nominee for two years, the Tribunal has taken into consideration evidence before it, including the business’s financial statements and documents submitted to the ATO. The Tribunal notes that the applicant’s financial statements for the 2018 financial year, reported sales of $788,519, wages expense $480,811 and net equity of $137,684. For the 2019 financial year, the applicant’s financial statements reported sales of $820,174, wages expense $536,333 and net equity of $224,503. The Tribunal has also considered the applicant’s payroll records, the nominee’s payslips, NOA’s, PAYG’s and bank statements which show the applicant has paid the nominee the nominated salary since her employment in July 2014.

37. Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to maintain the nominee’s full time employment as they have done since the nominee commenced employment with the applicant in July 2014.

38. Accordingly, the requirement in r.5.19(3)(d)(i) is met.

39. The Tribunal has had regard to the contract of employment for the nominee dated 6 July 2017. The contract sets out the terms and conditions of employment and indicate that the period of employment is two years upon the granting of a visa. At the hearing, the nominee advised the Tribunal that the business would employ the nominee indefinitely on a full time basis for as long as the nominee wished to stay in their employ. The contract stipulates the base salary is $60,000 per annum exclusive of superannuation. There is no term excluding an extension of the contract.

40. The Tribunal is satisfied based on the employment contract dated 6 July 2017 and other material before it that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(3) (d) (ii) is met.

41. 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)

42. 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.

43. The contract of employment dated 6 July 2017 sets out the nominee’s terms and conditions of employment and indicates that the nominee’s base salary is $60,000 per annum, exclusive of superannuation. The nominee’s leave entitlements include annual, personal, compassionate and long service leave.

44. The Tribunal has received payslips, ATO PAYG summaries, NOA’s and bank statements confirming that the nominee since July 2014 has been paid in excess of the nominated salary amount of $60,000 per annum. Superannuation statements provided to the Tribunal support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.

45. The Tribunal is satisfied on the totality of the evidence before it that the terms and condition applicable to the 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.

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

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

47. 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.

48. Regulation 5.19(3)(f)(i) and (ii) refer to Division 2.19 and r.2.87B which is provided as follows:

    Division 2.19

    Regulation 2.87B Obligation to provide training

    (1)       This regulation applies to a person who was lawfully operating a business in Australia

    at the time of:

    (a)       the person's approval as a standard business sponsor; or

    (b) the approval of a variation to the person's approval as a standard business sponsor.

    (2)       If, during all or part of:

    (a) the period of 12 months commencing on the day the person is approved as a standard  business sponsor; or

    (b) a period of 12 months commencing on an anniversary of that day; the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.

    (3)       If, during all or part of:

    (a) the period of 12 months commencing on the day the terms of the person's approval as a standard business sponsor are varied; or

    (b) a period of 12 months commencing on an anniversary of that day; the person is a standard business sponsor of at least one primary sponsored person, the standard business sponsor must comply with requirements relating to training, specified by the Minister in an instrument in writing for this subregulation, for that 12 month period.

    (4) The obligations referred to in subregulations (2) and (3) start to apply on the day the person is approved as a standard business sponsor.

    (5) If the period of the person's approval as a standard business sponsor is less than 6 years, the obligation referred to in subregulation (2) or (3) ends 3 years after the person is approved as a standard business sponsor.

    (6) If the period of the person's approval as a standard business sponsor is at least 6 years, the obligation referred to in subregulation (2) or (3) ends 6 years after the person is approved as a standard business sponsor.

49. The relevant training benchmarks are specified in IMMI 13/030. Relevantly, a business meets the benchmarks by demonstrating:

    a.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

    b.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.

50. Expenditure that can count towards this benchmark includes:

    ·Paying for a formal course of study for the business's employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy·

    ·Funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business's employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy·

    ·employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business

    ·employment of a person who trains the business's Australian employees who are Australian citizens and Australian permanent residents as a key part of their job

    ·evidence of payment of external providers to deliver training for Australian employees

    ·on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:

    othe learning outcomes of the employee at each stage;

    ohow the progress of the employee will be monitored and assessed;

    ohow the program will provide additional and enhanced skills;

    othe use of qualified trainers to develop the program and set assessments; and

    othe number of people participating and their skill/occupation

    Expenditure that cannot count towards this benchmark includes training that is:

    ·Delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading 'expenditure that can count towards this benchmark'

    ·Confined to only one or a few aspects of the businesses broader operations, unless the training is in the primary business activity

    ·Only undertaken by persons who are not Australian citizens or permanent residents

    ·Only undertaken by persons who are principals in the business or their family members

    ·Only relating to a very low skill level having regard to the characteristic and size of the business.

1. The applicant was most recently approved as a standard business sponsor on 28 November 2014 for a period of three years. In submissions to the Tribunal, the applicant has sought to establish compliance with the training requirements under Training Benchmark B.

2. The Tribunal has considered information presented by the applicant and is satisfied that during the approved sponsorship period of 28 November 2014 to 28 November 2017, the applicant sought to satisfy training benchmark ‘B.’ Financial evidence before the Tribunal shows the applicant’s payroll expenditure for the sponsorship period (Year 1) 28 November 2014 to 27 November 2015 was $348,091 (1% being $3,481) and for the sponsorship period (Year 2) 28 November 2015 to 27 November 2016 was $469,854 (1% being $4,698) and for the sponsorship period (Year 3) 28 November 2016 to 28 November 2017 was $505,474 (1% being $5,055).

3. Evidence in the form of invoices, receipts, and citizenship status of attendees, show that the applicant’s training expenditure was:- (Year 1) $4,000, (Year 2) $8,000 and (Year 3) $7,500.  The Tribunal notes that the applicant provided receipts for training expenditure incurred outside of the relevant sponsorship period. These being receipts dated 4 November 2014 $3,600 and 11 December 2017 $3,300, accordingly the Tribunal has not included these receipts in the consideration of training expenditure.

4. The Tribunal is satisfied that the applicant’s expenditure over the approved sponsorship period was at least 1% of the payroll expenditure. The Tribunal notes that the expenditure exceeded the 1% requirement.

5. The Tribunal is therefore satisfied that the applicant has spent 1% of payroll expenditure in the most recent period of their standard business sponsorship approval and that the applicant has satisfied training benchmark ‘B’ requirements. 

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

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

7. 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. 

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

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

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

10. 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.

11. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.

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

13. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19(3) for approval of the nomination of the position in Australia.

    DECISION

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

    Karen McNamara
    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.