Naiban Australia Pty Ltd ATF Halu Family Trust (Migration)

[2019] AATA 2839

Naiban Australia Pty Ltd ATF Halu Family Trust (Migration) [2019] AATA 2839 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Naiban Australia Pty Ltd ATF Halu Family Trust

CASE NUMBER:  1719893

DIBP REFERENCE(S):  BCC2017/2331138

MEMBER:Ian Berry

DATE:22 May 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 23 May 2019 at 2:21pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – training benchmark and requirements – Tribunal not satisfied with calculations in training of Australian employees and Australian permanent residents and requirements – insufficient evidence – Tribunal attempted to contact applicant – no response – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 359, 360, 363
Migration Regulations 1994 (Cth), r 5.19

CASES
Hasran v MIAC [2010] FCAFC 40

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 9 August 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 30 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 (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 following criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application because the applicant’s nomination did not satisfy the regulations (with the regulation summary) below. The Delegate’s reasons were that the nominator did not give any information or documents.  The delegate stated:

   ‘Since the lodgement, apart from the application form the nominator has not provided any information is to support this application.

Regulation	Summary of the Regulation
R.r.5.19(3)(b)(ii)	The nominator is actively and lawfully operating a business in Australia
R.r.5.19(3)(c)	In the 3 years before making the nomination application the nominee and alter a 457 Visa for at least 2 years and has been employed in the position for which the 457 visa was granted
R.r.5.19(3)(d)	Nominee will be employed for at least 2 years on a full-time basis with possibility of extending the employment
R.r.5.19(3)(e)	The identified nominee will be employed on a full-time basis in the position for at least 2 years terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions applicable to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location
R.r.5.19(3)(f)	Nominator has fulfilled commitments and meeting the nominator’s training requirements during the period of the moment nominator’s most recent approval as a standard business sponsor and complied with training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or reasonable to disregard

1. The applicant’s registered migration agent represented it in relation to the review.

2. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

3. On 1 February 2019, the Tribunal requested information from the applicant and in particular, information on training benchmarks and training requirements compliance. This letter invited the applicant to provide the information required by the Tribunal:

   ‘8Information about the applicant’s compliance with training commitments and sponsorship obligations

   Øfor example, invoices or contracts for employee training, a training program that includes a course outline, attendance and identifies increased work competencies, or records of investment in certain industry training funds or recognised industry bodies.’

4. The applicant’s migration agent, requested[1] an extension of time within which to comply with the invitation to provide information. The request was through an email misdirected and not received by the Tribunal, at least not concerning this matter’s case-number, the extension requested, was not received by the Tribunal until expiry of period to provide information:

   ‘I did send this form on the 18/2/19 however I see that my email attaching the form was wrongly linked to another matter.  The agent’s form relates to my acting for the sponsor company Naiban Australia Pty Ltd atf Halu Family Trust.  1719893, not the individual, I apologise for this.  Also, you may remember that I did previously request an extension of time to rely to your request for information/documents relating to the sponsor company Naiban Australia Pty Ltd atf Halu Family Trust.  Your request gave until today 19/2/19 to respond.  I had just taken over the matter and requested an extension for 7 to 10 days.  Can I ask if this is agreeable to you?’

   [1] T1: folio 21

5. The Tribunal responded to the applicant’s migration agent advising that to the time within which to request an extension was on or before 18 February 2019.  The letter explained that as the Tribunal received the request on 19 February 2019, the Tribunal was placed in the position of being unable to extend the date for the receipt of information.  Therefore, the applicant lost any entitlement it might otherwise have had under the Migration Act 1958 to appear before the Tribunal.  The letter explained that the applicant was welcome to provide the Tribunal with any information or evidence for the Tribunal to consider.

6. On 21 February 2019, the applicant under the cover of letter from the migration agent dated 21 February 2019 supplied information and documents. Of the information received by the Tribunal, the following documents were relevant to ‘training benchmark and requirements’ information:

   a.Sushi Train Greenslopes Station Staff List dated 20 February 2019.

   b.Undated staff list. 

   c.Submission by the applicant dated 21 February 2019.

   d.Submission entitled ‘regulations r.5.19(3)(e) - Equivalent Australian Worker

   e.Statement of director Akihiko Kuwajima confirming the payroll amount is as set out in a table, is correct

   f.Letter from the migration agent dated 25 February 2019 relating to ignoring certain documents sent with the information.

   g.Organisational chart (it was not included for the tribunal to view).

   h.ABCT (Australian Business Consulting & Training Pty Ltd) receipt dated 8 January 2016 , for the period 1 July 2015 to 8 January 2016

   i.ABCT receipt dated 8 January 2017, for the period 8 January 2016 to 8 January 2017.

   j.ABCT receipt dated 12 August 2018, for the period 8 March 2018 to 12 August 2018.

   k.A.R.M.S. receipt dated 8 January 2015, for the period 8 January 2014 to 8 January 2015.

   l.A.R.M.S. receipt dated 30 June 2015, for the period 8 January 2015 to 30 June 2015.

7. The 21 February 2019 letter outlined the submission concerning training.  The Tribunal’s invitation to supply information concerning training is set out in paragraph 8.  The response by the applicant is as follows:

   COMMENT:      the employer confirms that the amount spent on training staff is sufficient to meet IMMI’s requirements.  This is supported by the enclosed training documents from AIMS and several natural documents attached.

8. The information and documents set out in paragraph 11 h. to l., above, was summarised by the applicant in the following way:

Period	Payroll amount	Remarks
8 January 2014 – 8 January 2015	$770,763	Old partnership
8 January 2015 – 8 January 2016	$404,767 + $374,155**	Old + New Partnership
8 January 2016 – 8 January 2017	$722,002	New partnership (Naiban)
8 January 2018 – 12 August 2018	$300,804	New partnership (Naiban)
**8 January 2015 – 30 June 2015	$404,767	Old partnership
**1 July 2015 – 8 January 2016	$374,155	New partnership

13.      The underlying information does not calculate the amount the applicant is required to pay to satisfy part of the benchmark. The sponsorship period is required to calculate the anniversary of each payment. The date of the approval of the applicant’s nominee’s approval as a UC-457 visa holder. The source and calculation of the payroll amount and the payment liability based on the legislative percentage intended to be used by the applicant. In this case, the applicant’s case is 1%.

14.      The Tribunal has not identified a document, which could be considered an organisation chart. However, the Tribunal has considered all the information and documents provided by the applicant.

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.

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

2. Regulation 5.19(3)(f) requires the applicant to have fulfilled all the commitments relating to meeting training requirements. Compliance with the training benchmarks and training  requirements must be considered in the light of the informaiton given by the applicant. Then, if the Tribunal is not satisfied the applicant has complied, then consider whether these requirements may be disregarded if it is reasonable to do so.

3. The applicant has provided to the Tribunal, information relevant to ascertaining whether the applicant has complied with the training requirements as set out in IMMI 13/030.  The information is insufficient to make a calculation as to its liability.

4. With the information provided by the applicant, the Tribunal should embark upon the exercise of making of the calculation.

5. The legislative instrument is IMMI 13/030. In summary:

   a.IMMI 13/030 commenced on 1 July 2013 and is relevant to the applicant’s nomination application by reason of clause 1. The benchmarks for the training of Australian citizens and Australian permanent residents, for the purposes of paragraphs… R.5.19(4)(h)(i)(B)(I) and r.5.19(4)(h)(i)(B)(II)…

   b.The applicant is not required to demonstrate that it is an industry leader in training.

   c.The applicant is required to show that the training has been, and continues to be, provided to employees who are or were Australian citizens and Australian permanent residents related to the purpose of the applicant’s business.

   d.The training benchmarks for an established business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.

   e.The alternative is expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, and the provision of training to the relevant employees of the business.

   f.The instrument sets out the expenditure that can count towards this benchmark (meaning for the provision of training to employees of the business):

   ·Paying for a formal course of study for the businesses 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 businesses employees who are Australian citizens and Australian permanent residents or, for TAFE 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 businesses 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.

   ·Expenditure that can count - 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 toward the benchmark concerning training employees:

   oDelivered 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’.

   oConfined only to 1 or a few aspects of the businesses broader operations, unless the training is in the primary business activity.

   oOnly undertaken by persons who are not Australian citizens or permanent residents.

   oOnly undertaken by persons who are principals in the business or their family members.

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

6. The applicant has not provided any information toward satisfying the training to be at 2% by having paid sums to a training organisation. The applicant is intending to satisfy the training requirements through the training of employees, thus the 1% of payroll is to be used.

7. The Tribunal is not satisfied as to the calculations in the training of Australian employees and Australian permanent residents, as required by the legislative instrument IMMI 13/030, as there is insufficient information to either calculate or corroborate the compliance with the training obligations.

8. On 5 April 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting it to provide information and to comment upon the applicant’s obligations to comply with the training requirements under IMMI 13/030. The Tribunal considered that this information would be part of the reason, or the reason for affirming the decision under review. The invitation requested the applicant to respond in writing. The Tribunal stated to the applicant that the information requested was relevant to the review particularly to its obligation to comply with r.5.19(3)(a)(f) of the Regulations.

9. The invitation was sent to the last address provided in connection with the review and advised that, if the information and comments were not provided in writing by 23 April 2019, the Tribunal may make a decision on the review without taking further steps to obtain the information and or comments and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The applicant has not provided the information and or comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information and or comments.

11. R.5.19(3)(f)(ii) requires the Tribunal to consider whether it is reasonable to disregard that subregulation. The applicant has not put forward any submission as to why that subregulation should be disregarded. Therefore, the Tribunal has considered all the information and documents before it and has not found a ground upon which it is reasonable to disregard the training requirement obligations placed on the applicant.

12. The Tribunal is not satisfied that the amounts paid by the applicant cannot be accurately ascertained to represent its obligation.  It is acknowledged that on the applicant’s calculations it may have had a liability of $24,220.94.  Again, on the information supplied, though there was a duplication of receipts and tax invoices in the various years, the applicant may have paid $32,780.  The applicant has not made any calculation other than supplying information for the tribunal to wade through the information and make its own calculations.

13. The Tribunal cannot ascertain from the supplied staff lists (one of which has a date in 2019 which is irrelevant, and the other is undated) as to whether the training includes Australian citizens and Australian permanent residents.  The applicant’s business of making sushi and other Japanese dishes, involves employees who have, as an observation, Japanese names.  The Tribunal is not in the position to ascertain, of the employees, who are Australian citizens and Australian permanent residents.  Some of the employees are students.  Again, it cannot be ascertained as to whether they are Australian citizens or Australian residents all the children of visa holders.

14. Accordingly, the requirement in r.5.19(3)(f) is not met.

15. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

16. The Tribunal affirms the decision under review to refuse the nomination.

    Ian Berry
    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.