Ozkick Australia Pty Ltd (Migration)

Ozkick Australia Pty Ltd (Migration) [2021] AATA 3745 (23 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ozkick Australia Pty Ltd
CASE NUMBER:  1827641
HOME AFFAIRS REFERENCE(S):          BCC2017/406547
MEMBER:Warren Stooke AM
DATE:23 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 September 2021 at 6:07pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – financial capacity to pay full-time salary for 2 years – contract of employment and financial information provided to tribunal – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(3)(d)(i)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 September 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 31 January 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream for the position of Cook – ANZSCO Code: 351411.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(3)(d)(i) and reg 5.19(4) of the Regulations because the business has not demonstrated the financial capacity to be able to pay the full-time salary for the nominated position for at least 2 years.
The applicant appeared before the Tribunal on 18 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Hyun Young LEE, the nominee for the position of Cook – ANZSCO Code: 351411.
The applicant confirmed to the Tribunal that he had received and read a copy of the delegate’s decision of 4 September 2018, which he had provided to the Tribunal with his application. The applicant stated that he understood the application had been refused because of the profitability of the business.
The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.
At the conclusion of the hearing, the Tribunal asked the applicant to provide the Tribunal with evidence of superannuation contributions from 2018 to 2020; Medical insurance payments by the nominee and Training contributions from 2015 to 2018.
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
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 reg 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 applicant provided evidence that the business, Bluestone 520 Café, was registered with ASIC on 25 September 2014 and assigned an ABN: 14 168 699 009.
The applicant provided a contract of employment with Hyun Young LEE, which was dated 3 October 2016, that operated on the basis of a lawful right to work in Australia and employed on a full-time basis for at least 2 years upon issue of an ENS visa and a salary of $59,000 gross plus superannuation. A subsequent contract was signed on 6 May 2021 with a salary of $56,500.
The applicant stated that the nominee had been working with the business since July 2014 and had worked with the previous owner.
The applicant provided written certification relating to conduct that contravenes s 245AR(1), which was dated 3 October 2016.
The applicant provided evidence that Bluestone 520 Café is engaged in the hospitality industry in the CBD of Melbourne, which was purchase in July 2014. It was stated that the business had 13 employees at that time and now has 6 employees on rotation because of no support from government.
The applicant stated that the business operated from 6.00am to 4.00pm Monday to Friday pre Covid 19 to service the corporate area.
The owner stated that he would do anything to keep the business going and that he attends to the tables, maintenance and cleaning outside, whilst his wife does duties that includes the books.
The applicant stated that of the six employees there are 4 Australian citizens and that the nominee, who was formerly subject to a sponsored 457 visa and is now on a Bridging Visa A. The other visa holder (Vanessa) works in the front of house and manages front aspects of the shop.
The applicant stated that the Hospitality Industry Award applied to employees and that all employees were provided with a Fair Work Information Statement upon employment.
The applicant stated that the nominee is employed as a Cook and that she is employed on a full-time basis having historically started as a casual and then employed on a full-time basis. In this regard, the applicant stated that the designation of the nominee on the organisation chart as a part-time employee was an error on the chart.
The applicant stated that a new contract of employment was put in place on 6 May 2021, which has a salary of $56,500.
The applicant provided evidence that the nominee in the position of Cook – ANZSCO Code: 351411 undertakes the following duties:
a.Preparation and cooking of Café menu;
b.Preparation and cooking food for Catering functions;
c.Monitoring quality of dishes at all stages of preparation;
d.Discussing food preparation issues with the manager;
e.Examining foodstuffs to ensure quality;
f.Washing, peeling, cutting & seeding fruits & vegetables to prepare them for consumption;
g.Carving & trimming meats to ready them for different menu dishes;
h.Weighing, measuring & mixing ingredients according to recipes & personal judgment;
i.Regulating temperatures of ovens, broilers, grills, & roasters;
j.Preparing and cooking food;
k.Seasoning & cooking food according to recipes & personal judgment;
l.Turning & stirring foods to ensure even cooking;
m.Observing & testing foods to determine if they have been cooked sufficiently;
n.Portioning, arranging & garnishing foods;
o.Store foods in temperature controlled facilities;
p.Minimise food wastage and maintaining excellent hygiene standards;
q.Preparing food to meet special dietary requirements;
r.Adhering to guidelines for keeping utensils, food equipment, storage chambers, and cooking areas clean;
s.Constantly checking the freshness and quality of ingredients to prevent contamination and food-related illness;
t.Follow daily, weekly and monthly Maintenance Schedule for all equipment in the Kitchen;
u.Suggesting ways of minimizing any potential hazards.
The applicant stated that the applicant was working 38 to 40 hours per week pre Covid but the hours now fluctuate.
The applicant stated that the position required a good understanding of food practices and a Certificate III and IV in Commercial Cookery.
The applicant provided evidence that the position was advertised in 2014 and that his experience was that Australian residents had a different attitude to international people and a better work ethic. He stated that he employed the nominee because she was hard working; had a legal right to work; a work ethic and excels in the kitchen.
The applicant provided advice to the Tribunal following the hearing of the wages, superannuation and training payments that had been expended for the period 2015 to 2018, as follows:

Salary and Wages

Superannuation

Training Payments

2015

$277,027

$30,443

$3,200

2016

$276,715

$20, 231

$3,500

2017

$261,776

$20,321

$3,500

2018

$286,105

$26,951

$3,600

2019

$282,522

$17,439

NA

2020

$271,838

$20,986

NA

The applicant provided information to the Tribunal concerning the financial performance of the business from FYE 2017 to 2020, as follows:

2017

2018

2019

2020

Total Income

$537,505

$557,299

$534,767

$487,626

Total Expenses

$549,117

$551,269

$527,604

$483,021

Profit/Loss

($11,611)

$6,030

$7,163

$4,605

Evidence of Hyun Young LEE (the Nominee)

The nominee stated that she came from South Korea to study commercial cookery in Australia, at the end of 2006.
The nominee was granted a Bridging Visa A on 31 January 2017 that provides full permission to work and study but does not permit travel.
The nominee undertook an IELTS English language test on 29 August 2015 with an overall score of 5.5.
The nominee provided the Tribunal with a resume prior to hearing that she had completed a Certificate III and IV in Commercial Cookery and Diploma of Hospitality Management , at Meridian International Hotel School between 26 February 2007 and 23 November 2008.
The nominee confirmed in evidence that she successfully obtained trade recognition assessment with Trade Recognition Australia and was granted a 485 graduate visa from 13 May 2010 to 1 November 2011.
The nominee provided the Tribunal with income details through copies of her ATO Tax return for 2016 to 2020, as follows:

2016

2017

2018

2019

2020

Income

$55,950

$56,090

$56,260

$56,475

$41,095

The nominee provided the Tribunal with evidence that she has maintained health insurance with BUPA since 28 November 2014.
The application must be compliant: reg 5.19(3)(a)
The applicant lodged the most recent application to nominate the nominee for the position of Cook – ANZSCO Code: 351411 with the business on 31 January 2017 on Form 1395 (Internet) and payment of the nomination application fee was acknowledged by the Department. The completed form included a response to the written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravenes s. 245AR(1). In this regard, the Tribunal is satisfied that the applicant has provided confirmation of not engaging in conduct that would contravene s. 245AR(1).
The applicant has provided an organisation chart and declaration to the Tribunal that identifies a claim for a need for the nominee to fill the advised position under the nominator’s direct control.
Further, the Tribunal is satisfied that the business is profitable, based upon the evidence submitted, that ensures the viable ongoing performance of the business. In this regard, the Tribunal accepts that the registered business has employed the nominee since July 2014, when the business was purchased and has demonstrated that it is able to meet its employment obligations for the next two years, from the grant of a visa, as has been evidenced since July 2014.
The Tribunal accepts that the business can meet its financial obligations and employ the nominee in the position of Cook – ANZSCO Code: 351411.
Accordingly, the requirement in r.5.19(3)(a) is met.
Given the above findings, the requirement in reg 5.19(3)(a) is met.
Status of the nominator: reg 5.19(3)(b)
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.
The Tribunal is satisfied that the applicant has been the sponsor of the nominee and has complied with the requisite obligations pertaining to employment.
Further, the Tribunal is satisfied that Ozkick Pty Ltd business was registered with ASIC on 25 September 2014 with an assigned ABN: 14 168 699 009 and that there is no evidence before the Tribunal 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).
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: reg 5.19(3)(c)
Broadly speaking, to meet the requirement in reg 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.
The evidence before the Tribunal is that the nominee was continuously employed by the applicant from 3 October 2016, initially on a Student visa, and then on a 457 visa, which was prior to application for a 186 Direct Entry Stream visa of 31 January 2017. The evidence confirmed to the Tribunal that the employment has continued subsequent to the delegate’s decision of 4 September 2018. In this regard, the new contract of employment will continue to apply from the 6 May 2021 on the basis that the nominee has permanent employment, that is not dependent upon the grant of a 186 visa. As such, the Tribunal is satisfied that employment will be for a period that exceeds 2 years.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: reg 5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in reg 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.
The applicant provided the Tribunal with evidence that the nominee has a new contract of employment that commenced on 6 May 2021 and that the nominee has a contract of not less than 2 years, with an undertaking to employ the nominee for a minimum period of two years from the grant of the visa. In this regard, the evidence identified that the nominee will be paid a salary of $56,500 per annum, including 9.5 per cent superannuation for the position of Cook – ANZSCO Code: 351411.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: reg 5.19(3)(e)
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.
The Tribunal is satisfied that the terms and conditions of employment are 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.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: reg 5.19(3)(f)
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.
The Tribunal notes that since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. The Tribunal notes that the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) states at cl.7602- Operation of amendments that “...(5) A person is not required to comply with subregulation 2.87B(2) ... in relation to a period of 12 months ending on or after the commencement day.” The Tribunal notes that the commencement day set out in the Migration Amendment (Skilling Australians Fund) Regulations 2018 (Cth) is 12 August 2018. Accordingly, the Tribunal finds that the applicant was not required to meet training Benchmark A or training Benchmark B beyond the first year of its current standard business sponsorship approval.
Further, the applicant provided evidence that the business expenditure on training was $3,500 in 2016; $3,500 in 2017 and $3,600 in 2018, which in each of the designated periods exceeded the Benchmark B requirement prescribed in the regulations.
As set out in the paragraph above, since the Skilling Australians Fund came into effect on 12 August 2018, the applicant is no longer obliged to meet the training benchmarks. Therefore, the applicant does not have an obligation to meet the training benchmarks in this current year of its most recent standard business sponsorship approval.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: reg 5.19(3)(g)
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 regs 1.13A and 1.13B.
The Tribunal is satisfied 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.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: reg 5.19(3)(h)
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.
The evidence before the Tribunal identifies that the applicant has a contract of employment with the nominee that is operative from 6 May 2021 and is in compliance with the Fair Work Act 2009 requirements in terms of conditions of employment and has a salary that exceeds the minimum award entitlement. In this regard, the applicant stated that the nominee is paid a salary of $56,500 per annum, which includes 9.5 per cent superannuation.
Accordingly, the requirement in r.5.19(3)(h) is met.
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.
Warren Stooke AM

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.

[2021] AATA 3745

23 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies

Salary and Wages	Superannuation	Training Payments
2015	$277,027	$30,443	$3,200
2016	$276,715	$20, 231	$3,500
2017	$261,776	$20,321	$3,500
2018	$286,105	$26,951	$3,600
2019	$282,522	$17,439	NA
2020	$271,838	$20,986	NA