Oakstar Holdings Pty Ltd (Migration)

[2020] AATA 4893

Oakstar Holdings Pty Ltd (Migration) [2020] AATA 4893 (9 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Oakstar Holdings Pty Ltd

CASE NUMBER:  1711729

HOME AFFAIRS REFERENCE(S):          BCC2016/3962508

MEMBER:Nicola Findson

DATE:9 September 2020

PLACE OF DECISION:  Perth

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

Statement made on 09 September 2020 at 6:26pm

CATCHWORDS

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

LEGISLATION

Migration Act 1958, ss 140, 245
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 and Border Protection on 19 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 24 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)(i) of the Regulations because the delegate was not satisfied that the applicant had demonstrated the nominee will be employed on a full time basis for at least 2 years.

5. On 2 June 2017, the applicant applied to the Tribunal for review of the delegate’s decision and included a copy of the primary decision record for the purpose of the review. 

6. During the review process and in response to an invitation by the Tribunal on 13 December 2019 to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (3), the applicant provided additional material in support of its application, including but not limited to:

   ·ASIC records in relation to the applicant company;

   ·Financial Statements of the applicant for the years ended 30 June 2018 and 2019, as well as a draft Financial Statement for the year ended 30 June 2020;

   ·Company Tax Returns lodged for the years ended 30 June 2018 and 2019;

   ·Business Activity Statements (BAS) for the periods July to September 2019, October to December 2019, January to March 2020 and April to June 2020;

   ·Business bank statements for the period 2014 to 2018;

   ·Current organisational structure chart;

   ·Contract of employment signed on 17 November 2016, between the applicant and the nominee, recording that the base salary will be $54,000 plus superannuation;

   ·Position description for the nominated position;

   ·Current organisational structure chart;

   ·Evidence of expenditure incurred by the applicant during the period of its most recent sponsorship approval, including tax invoices;

   ·Payroll records in relation to the nominee (including payslips, Notices of Assessment for the financial years ended 30 June 2015, 2016, 2017, 2018, 2019 and 2020); and

   ·Notice of approval as a Standard Business Sponsor dated 2 June 2017 (valid until 2 June 2022).

7. The applicant’s Director, Mr Arockiaraj Savarimuthu, appeared before the Tribunal on 14 August 2020, to give evidence and present arguments on behalf of the applicant.

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

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. On the basis of the information in the Department’s file, the Tribunal is satisfied that the application was made on the approved form, that the prescribed fee has been paid and that the relevant written certification relating to conduct that contravenes s.245AR(1) has been provided as part of the application form.

13. The Tribunal is also satisfied, on the basis of information in the Department’s file, that the application for approval identifies Ms Jatinder Kaur as the relevant 457 visa holder and identifies the occupation (Café or Restaurant Manager – 141111) in relation to the position that is listed in ANZSCO and has the same four-digit occupation unit group (1411) as the occupation carried out by the relevant holder of the subclass 457 visa.

14. Given the above findings, the requirements of r.5.19(3)(a) are 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. Departmental records confirm that the nominator is the standard business sponsor who last identified Ms Jatinder Kaur in a nomination made under section 140GB of the Act.

17. The Tribunal has received current evidence that the business is actively and lawfully operating a business in Australia, including ASIC information and financial documents.

18. The Tribunal has also had regard to Departmental records and is satisfied 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).

19. Given the above, the requirement in r.5.19(3)(b) is 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. The nominee was granted a Subclass 457 visa on 15 August 2014 to work in the nominated occupation of Café or Restaurant Manager with the nominator. This nomination was lodged on 24 November 2016. At the hearing, Mr Savarimuthu provided details of the tasks carried out by the nominee in the position, which the Tribunal is satisfied is consistent with Café or Restaurant Manager.

22. The applicant has had regard to payroll documents for the nominee, including payslips and tax assessment notices for the 2015, 2016 and 2017 financial years.  The Tribunal has also had regard to the business’ bank records which show wage transfers to the nominee.

23. On the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the relevant position for at least 2 years in the 3 years before the nomination was made. The requirements of r.5.19(3)(c)(i) are therefore satisfied.

24. 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)

25. 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.

26. It was the delegate’s view that the financial information before him was unable to satisfy this requirement.  The applicant has provided additional information and updated financial reports to the Tribunal that indicate the company does have the financial capacity to employ the nominee at the specified salary, and the Tribunal accepts this evidence. 

27. It is now over three years since the delegate’s decision, and documents provided by the applicant show that the nominee has continued to be employed in the nominated position.  The Tribunal has also had regard to the terms and conditions of employment as set out in the employment contract signed by the parties on 6 October 2016 as well as the employment contract most recently signed on 4 January 2019.  The contract indicates that the nominee will be employed as a Café or Restaurant Manager on a full-time basis for at least two years with a base salary of $54,000 plus superannuation.  There is nothing in the contract that expressly excludes the possibility of extending the employment period. 

28. The Tribunal notes that the applicant operates a well-established business, which commenced trading in 2007 and which receives good reviews on social media websites. In addition, on the evidence before it - including financial material and the written and oral evidence of Mr Savarimuthu - notwithstanding significant construction works within close proximity to the business address (ongoing between 2015 and 2019) as well as the Covid-19 pandemic, which have disrupted business, the business has remained profitable. 

29. Having regard to the totality of the evidence before it, the Tribunal is satisfied that the nominator has the financial capacity to maintain the nominee’s employment, as it has done since February 2014.

30. The Tribunal is also satisfied, on the basis of the evidence before it, 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. 

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 Tribunal has considered information from payscale.com.au, which indicates Café or Restaurant Managers in Western Australia are paid between $40,000 and $68,000 per annum. The Tribunal has considered that the nominee’s terms and conditions of employment are in accordance with the Fair Work Act 2009.

34. The Tribunal also observes that the nominee was granted her Subclass 457 visa on the basis of the proposed base salary and the Department was satisfied that the base salary was no less favourable than that which would be provided to an Australian citizen or permanent resident performing equivalent duties in the same location.

35. On the basis of the information before it, the Tribunal is satisfied that the nominee’s base salary is within the appropriate range of that normally paid to an experienced Café or Restaurant Manager.

36. The Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

37. Given the above, the requirement in r.5.19(3)(e) is met.

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

38. 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.

39. The instrument relevant to this matter, IMMI 13/030 – Specification of Training Benchmarks, identifies the following training benchmarks for established businesses: Recent expenditure, by the 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 (Training Benchmark A); or Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business (Training Benchmark B).

40. Since the Department made their decision refusing the nomination application, the Department has given further approval to the applicant as a standard business sponsor.  This approval was granted on 2 June 2017, for a period of five years.  As this is the most recent approval as a standard business sponsor, the Tribunal is required to consider whether the applicant has fulfilled any commitments made in relation to that period. 

41. The applicant has provided to the Tribunal financial documentation which reveals that the total payroll expenditure in the period of the standard business sponsorship, from July 2017 to June 2018 was $107,775, July 2018 to June 2019 was $113,389, and July 2019 to June 2020 was $135,330.

42. The evidence before the Tribunal (tax receipts issued by Curtin University) is that the expenditure by the business during the abovementioned period, in payments allocated to an industry training fund that operates in the same industry as the business, was $2155.49 (for the year ended June 2018), $2267.77 (for the year ended June 2019) and $2706.60 (for the year ended June 2020), in satisfaction of Training Benchmark A.

43. On the basis of the evidence before it, the Tribunal is satisfied that the applicant’s training expenditure over the three-year period of its most recent standard business sponsorship approval has been at least 2% of the payroll expenditure, and that the applicant has satisfied the Training Benchmark A requirements.

44. Having made these findings, the Tribunal is satisfied the applicant has fulfilled commitments made relating to meeting the training requirements during the relevant period and therefore complied with the applicable sponsorship obligations relating to the applicant’s training requirements during that period.

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

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

46. 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.

47. The Tribunal has had regard to the Department’s electronic records for the applicant company which indicate that Departmental monitoring of the applicant company was finalised with a warning in 2009.  At the hearing, the Tribunal queried Mr Savarimuthu about whether there was any adverse information known to the Department about the applicant or any person associated with the applicant.  Mr Savarimuthu indicated to the Tribunal that he was unaware of any adverse findings against the applicant as an outcome of any investigations.  He also confirmed that he had purchased the applicant company in 2014, and that there had been no concerns bought to his attention by the Department in the time he had owned it. 

48. The Tribunal also notes that the Department approved the applicant as a standard business sponsor, most recently in 2017.

49. Having regard to the relevant definition of adverse information in r.1.13A, the Tribunal notes that the information before it does not indicate that the applicant, or an associated person, has been found guilty of an offence, acted in contravention of a relevant law or has been the subject of an administrative action for contravention of such a law. Furthermore, at the time of this decision, the applicant is not under investigation and is not subject to disciplinary action or legal proceedings regarding contravention of a relevant law.

50. On the information before it, the Tribunal is satisfied that there is no adverse information known to the Immigration about the nominator or an associated person. Accordingly, the requirement in r.5.19(3)(g) is met.

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

51. 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.

52. There is no evidence before the Tribunal to indicate that the applicant has not complied with workplace relation laws.

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

    Conclusion

54. 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

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

    Nicola Findson
    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.