Mr Rafiqul Alam Khan (Migration)

[2020] AATA 5550

Mr Rafiqul Alam Khan (Migration) [2020] AATA 5550 (26 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rafiqul Alam Khan

CASE NUMBER:  1930062

HOME AFFAIRS REFERENCE(S):          BCC20154004252

MEMBER:John Cipolla

DATE:26 October 2020           

PLACE OF DECISION:  Sydney

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

Statement made on 26 October 2020 at 3:56pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Federal Circuit Court remittal – procedural fairness – putting the applicant on notice of issues of concern – Temporary Residence Transition nomination stream – Accountant (General) – financial capacity to maintain nominee’s employment – profitability of the business – consistent history of paying the nominee’s salary – training commitments and obligations – evidence of Australian citizenship – decision under review set aside

LEGISLATION
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 and Border Protection on 23 January 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 22 December 2015. 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)(f) of the Regulations because they had failed to meet either training benchmarks A or B as stipulated in the relevant instrument, IMMI 13/030. These require that in the 12 months prior to the most recent Standard Business Sponsorship agreement, there be expenditure equivalent to at least 2% of payroll be paid into an industry training fund in the same sector as the business, or an amount equivalent to at least 1% of payroll paid for the provision of training to employees matching specific categories listed by the Instrument. The business provided submissions against the latter and declared $3050 spent in training employees, however the delegate noted that no evidence had been provided which showed that the recipients of the training were actually Australian citizens or Australian permanent residents as required by the categories listed in the Instrument. The application was accordingly refused on 23 January 2017.

5. On 10 February 2017 the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review, and a decision was issued by the Tribunal (differently constituted) on 25 May 2018. In this decision, the Member noted the apparent reluctance of one of the employees to provide proof of their citizenship in accordance with requirements of the business to meet the training benchmark requirements in 5.19(3)(f). The Member then proceeded to an assessment under 5.19(3)(d) which requires that the nominee be employed of a full-time basis for at least two years on conditions that do not preclude possibility of an extension. The Member noted the small size of the business, the declining profits of the business in recent years in records provided, the reliance of the business on modestly remunerated casual staff, the modest and declining remuneration of the nominee with the business, the record that the owner appears to have drawn no income from the business and the record that the business had paid no tax in the first half of FY18. The decision to refuse the application was affirmed by the Tribunal on 25 May 2018 on this basis.

6. The application was appealed to the Federal Circuit Court of Australia (FCCA) and was remitted by judgement on 23 September 2019. The FCCA cited error on the basis of procedural unfairness and noted that the Tribunal was required to put the applicant on notice of the respective issue of concern. It assessed that the general letter that had been issued to the applicant did not identify the Tribunal’s concern as to the financial capacity of the business to employ the nominee on a full-time basis for two years. The FCCA deemed that had the Tribunal put the issue of concern to the applicant, they may have been able to provide an explanation to the changes they would have been able to make to meet the requirement. The FCCA noted that there was no requirement on the Tribunal to identify the significance of the questions it asks, however, it was still required to allow the applicant the capacity to put their case and identify those issues which would be dispositive.

7. The applicant appeared before the Tribunal on 8 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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

9. 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

10. 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)

11. 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.

12. The Tribunal is satisfied, on the basis of material in the Department’s file, that the application was made on the approved form and accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.

13. The application identifies Ms Farjana Rahman (the nominee) who, according to Departmental records, was granted a Subclass 457 visa on the basis of satisfying cl.457.223(4). The application identifies the occupation of Accountant (General) – ANZSCO 221111. The Tribunal is satisfied that the position listed in ANZSCO has the same 4-digit code as the occupation carried out by the nominee.

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

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

15. 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.

16. The nominator was most recently approved as a Standard Business Sponsor on 8 February 2016 for a period of 3 years. Departmental records indicate that the nominator was the sponsor who last identified the nominee, who is the relevant 457 visa holder, in a nomination made under s.140GB. The Tribunal is accordingly satisfied that the requirement in r.5.19(3)(b)(i) is met.

17. At the hearing, the proprietor of the business, Mr Rafiqul Alam Khan, gave evidence the nominator operates a tax consultancy business, Accotax Consultant, in Mascot in New South Wales. The business currently employs the nominee as an Accountant. The Tribunal has also had regard to the supporting material provided regarding the business’ operations, including company registration documents, recent business activity statements, recent financial reports, an organisational chart, an employment contract, bank statements and wage records, and is satisfied, on the evidence, that the applicant is actively and lawfully operating a business in Australia. The requirement in r.5.19(3)(b)(ii) is therefore met.

18. The nominator was not granted the most recent business sponsorship on the basis of operating a business outside Australia. The requirement in r.5.19(3)(b)(iii) is therefore met.

19. Given the above, the requirements in r.5.19(3)(b) are met.

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

20. 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.

21. In this case, r.5.19(3)(c)(i) is the relevant provision. This nomination was lodged on 22 December 2015. The nominee was granted the Subclass 457 visa on 28 November 2013 to work for the applicant in the nominated occupation of Accountant (General) – ANZSCO 221111.

22. The Tribunal has before it PAYG payment summaries for nominee for 2014,2015,2016,2017, 2018, 2019 and 2020. The Tribunal also had regard to the proprietor’s oral evidence at hearing about the nominee’s employment. The Tribunal was furnished with the business activity statements for the above periods along with the businesses bank accounts which it has duly considered. On the evidence before it, the Tribunal is satisfied that the nominee has been employed on a full-time basis in Australia for the relevant two-year period. 

23. The Tribunal has next considered whether the nominee was employed in the position for which she holds the 457 visa. As noted above, the nominee was nominated to work in the position associated with the occupation of Accountant (General).

24. On the totality of the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the position for which she holds the 457 visa for a period of at least 2 years in the 3 years before the nomination was made. 

25. 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)

26. 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.

27. The applicant has provided to the Tribunal a signed contract of employment in respect of the nominee dated 10 October 2016 and an updated contract signed and dated 23 September 2020. The contracts set out the terms and conditions of employment and provides a term of two years employment from the date of the visa grant. 

28. Employment records for the nominee indicate that the nominator has been paying the specified wages to the nominee throughout her employment in the position as the holder of a 457 visa. The most recent financial reports also indicate that the nominator is operating profitably and has been able to pay its employees. The evidence provided at hearing was that COVID 19 has had some impact on the business but the business is diversifying its practices to ensure that it is able to reach a greater market through the development of a website, subcontracting of services and tapping into overseas clients.

29. The previously constituted Tribunal had concerns about the overall profitability of the business and its capacity to pay the salary of the nominee for at least 2 years in terms that do not preclude the possibility of an extension. The previously constituted Tribunal decision was made in May 2018 and the evidence before this Tribunal is that in the two and a half years since that decision was made the business has continued to pay the salary of the nominee for her employment on a full time basis.  A whole range of supplementary evidence was provided to this Tribunal at review including PAYG summaries, business activity statements, profit and loss statements, tax returns of the business and business bank account statements with the ANZ bank. The careful consideration of this evidence indicates that the business will be able to continue to offer the applicant full time employment for at least 2 years without excluding the possibility of extending the period of employment.

30. The Tribunal is satisfied on the material before it that the nominee will be employed on a full-time basis for at least 2 years on terms that do not exclude the possibility of extending the period of employment.

31. 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)

32. 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.

33. The employment contract indicates that the nominee’s base salary is $60,000 plus 9.5% superannuation based on 38 hours a week. Apart from the applicant there are no other full time Accountants employed in the business with two other employees Mr Fahad and Mr Islam employed on a part time basis.

34. The representative notes that Market Salary Research (MSR) was provided with the application and that additional and updated MSR has been provided and duly considered by the Tribunal at merits review. The representative also provided a Salary survey and job advertisements from an equivalent position.

35. Having had regard to the terms and conditions of employment as set out in the employment contract, and in considering the evidence overall, the Tribunal is satisfied that the terms and condition applicable to the nominated position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

36. Given the above, the Tribunal is satisfied that the requirement in r.5.19(3)(e) is met.

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

37. 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.

38. The Tribunal has had regard to the most recent sponsorship approval.

39. Having regard to the evidence before it at review namely payroll expenditure and monies expended on training (which has been quantified with the provision of training recepts) the Tribunal is satisfied that the business has fulfilled its commitment relating to training requirements.  Further to this, the business has complied with its training requirement obligations during the period of the most recent sponsorship approval.

40. Of issue to the delegate and the previously constituted Tribunal was the fact that no evidence had been adduced which confirmed that the training had been provided to Australian citizens or Australian permanent residents.  That information was not provided at that time as an ex-employee of the business, who had attended the training, had failed to comply with a request to provide evidence of his Australian citizenship.  This information has now been provided in the form of a certified copy of the ex-employee, Mr Siddique’s Australian passport.  The Tribunal is satisfied on the basis that the said training was provided to an Australian citizen employee of the business.

41. The Tribunal is satisfied based on the evidence before it that the applicant has kept the required records showing that they have complied with their sponsorship obligations relating to the training requirement.

42. Given the above, the Tribunal finds that the requirements of r.5.19(3)(f) are met.

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

43. 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. 

44. The definition of ‘adverse information’[1] includes any adverse information relevant to a person’s suitability as an approved sponsor or nominator, including having been the subject of administrative action (including being issued with a warning) by a competent authority (as defined in r.2.57(1) of the Regulations) for a possible contravention of the law, found guilty by a court of an offence under a Commonwealth, State or Territory law, being under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law or having become insolvent.

    [1] As in force immediately before 18 March 2018, as provided for in cl. 6703 of Schedule 13 to the Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (F2018L00262).

45. The matters specified in r.1.13A(2) include immigration law, industrial relations and occupational health and safety, discrimination, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage. 

46. The definition also specifies that the ‘conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the last 3 years’ – see r.1.13A(3). 

47. Regulation 2.57(1) provides that a ‘competent authority’ means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.

48. Having regard to the evidence before it the Tribunal finds that there is no adverse information before it. The applicant therefore meets r.5.19(3)(g)(ii). Accordingly, the requirement in r.5.19(3)(g) is met.

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

49. 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.

50. There is also no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with applicable workplace relations laws. The Tribunal is accordingly satisfied that the requirement in r.5.19(3)(h) is met.

    CONCLUSION

51. 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

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

    John Cipolla
    Senior 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.