P R Henderson & J A Johnson (Migration)

P R Henderson & J A Johnson (Migration) [2021] AATA 328 (13 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  P R Henderson & J A Johnson
CASE NUMBER:  1813619
HOME AFFAIRS REFERENCE(S):          BCC2017/2017742
MEMBER:Jane Bell
DATE:13 January 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 13 January 2021 at 10:09pm
CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition Nomination stream – occupation of Cook – evidence of training requirements – reasonable to disregard training requirements – actively and lawfully operating a business in Australia – financial capacity to employ the nominee for at least 2 years – terms and conditions of employment – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration Act 1958, ss 245, 360
Migration Regulations 1994, rr 1.13, 2.59, 5.19
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 23 April 2018 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).
The applicant applied for approval on 7 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 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f)(i) of the Regulations because there was insufficient evidence to substantiate the claim that an appropriate amount was spent on training employees pursuant to r.5.19(3)(f) of the Regulations.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
The applicant was represented in relation to the review by its registered migration agent.
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 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)
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.
On the basis of information in the Department’s file, the Tribunal is satisfied that the nomination was made on the approved online form, that the prescribed fee has been paid and that the relevant written certification has been provided as part of the application that it had not engaged in conduct that contravenes s.245AR(1) of the Act.
The Tribunal is also satisfied on the evidence in the Department’s file that the application for approval identifies Paresh Hemubhai Charaniya as the relevant person who holds a Subclass 457 visa granted on the basis of satisfying cl.457.223(4) of Schedule 2 to the Regulations and identifies an occupation of Cook in relation to the position that is listed in ANZSCO as 351411 and has the same 4 digit code as the occupation carried out by the Subclass 457 visa holder.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.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 Department’s file indicates the nominator was approved as a standard business sponsor on 23 April 2012 to 23 April 2015 for a period of 3 years and a further standard business sponsor application was approved on 18 November 2015 to 18 November 2020 for a period of 5 years.
The Tribunal is satisfied that the nominator was the standard business sponsor who nominated Paresh Hemubhai Charaniya for a Subclass 457 visa. The Tribunal is further satisfied that the nominator did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.
The Tribunal has current information as evidence that the nominator is actively and lawfully operating a business in Australia including:
AAT File
·ABN Lookup & ABN Historical details submitted by applicant;
·ASIC extract dated 20 April 2017 – status registered – registration date 5 September 2003;
·2019 Partnership Tax Return (The Hot Poppy);
·2018 Partnership Tax Return (The Hot Poppy);
·2019 Financial Report (The Hot Poppy);
·2018 Financial Report;
·2017 Financial Report;
·Organisation Chart as at November 2020 listing Peter Henderson as Head Chef and the nominee as Cook;
·Letter from the applicant’s accountant;
DHA file
·ABN Lookup – Historical details & ABN Lookup dated 26 November 2010;
·ASIC extract dated 20 April 2017;
·2016 Financial Report – The Hot Poppy;
·2015 Partnership Tax Return (The Hot Poppy);
·2015 Financial Report (The Hot Poppy);
·Business Activity Statements: July 2016 to Sept 2016, Oct 2016 to Dec 2016, Jan 2017 – March 2017;
·Evidence of nominee’s full-time employment;
·Nominee’s PAYG Payment Summary for 2015 & 2016;
·Letter from accountant dated 28 April 2017;
·Employment Agreement between RA and nominee dated and signed on 3 May 2017;
·Home Affairs Sponsorship Approval notices.
Given the above, the requirement in r.5.19(3)(b) met.
Previous employment of the nominee: r.5.19(3)(c)
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.
The Tribunal has reviewed the occupations specified in IMMI 13/067 for the purposes of r.5.19(3)(c)(ii) which appears as the second dot point above and is satisfied that the nominated occupation of Cook is not included in the list. Accordingly, the applicant must meet the requirements of r.19(3)(c)(i) which appears as the first dot point above.
The Tribunal is satisfied on the evidence before it that:
·The nominator runs a business where the principal activity is a café business. Its business address is 9 Errol Street, North Melbourne VIC 3051;
·The nominator has been running the business since 2001;
·Paresh Hemubhai Charaniya is the only foreign employee working as a Cook. The business has 8 employees including the 2 owners. 4 of the employees are Australian citizens or permanent residents and 4 are on work or student visas. 3 of the employees work part-time;
·Paresh Hemubhai Charaniya has held one 457 visa from 10 March 2015 to 10 March 2018 for a period of 3 years for the position of Cook ANZSCO 351411. In his application the nomination type is listed as “Temporary Residence Transition” stream;
·There is evidence of Paresh Hemubhai Charaniya PAYG Payment Summaries for the years ending 2015, 2016, 2017, 2018 and 2019 noting the payer as the nominator;
·The nominee has been employed full-time as a Cook since 2015 after receiving his Subclass 457 visa and has worked continuously in the business in the same role since that date and still works in the business. The nomination application was made on 7 June 2017 which demonstrates that the nominee worked in the position while holding a Subclass 457 visa for at least 2 years prior to the nomination application as required by r.5.19(3)(c)(i).
The Tribunal has had regard to the nominee’s PAYG Payment Summaries for the years ending 2015, 2016, 2017, 2018, 2019 and 2020 noting the payer as the nominator, the nominee’s latest Employment Agreement between the nominator and the nominee dated 3 May 2017, the nominee’s Position Description and ATO Notice of Assessments for the years ending 2017, 2018, 2019 and 2020.
On the evidence before it, the Tribunal is satisfied that the nominee has been employed full- time in Australia by the nominator in the position of Cook for at least 2 of the 3 years preceding the nomination application and has held the Subclass 457 visa for the relevant period.
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)
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.
The nominee has been employed full-time by the nominator as a Cook since 2015 after receiving his Subclass 457 visa and has worked continuously in the business in the same role since this date and still works in the business.
The Tribunal has before it a copy of the most recently signed Employment Agreement signed by a director of the business and the nominee dated the 3 May 2017. The contract states that the nominator will provide permanent full-time employment for the nominee in the position of Cook at a salary of $54,000 per annum plus 9.5% superannuation for a duration of 3 years. The terms and conditions of the nominee’s employment do not expressly exclude the possibility of extending the period of employment.
There is also a statement from the nominator detailing the position description for the nominated position.
Furthermore, the Tribunal has copies of the nominator’s financial information including its Company’s Financial Reports for the years ending 2016, 2017, 2018 and 2019, Partnership Tax Returns for 2018 and 2019, ATO Income Statement 2020 for the nominee, the ATO Business Activity Statements for 2017, 2018 and 2019 and PAYG Statements for 2015, 2016, 2017, 2018, 2019 and 2020.
After reviewing the above documents, particularly recent financial statements and the Profit and Loss statements for the last 3 years, the Tribunal is satisfied that the nominator experienced healthy turnover each year in the last 3 years, with the total income and net profit for the latest financial year being profitable after all expenses had been paid including wages, salaries, superannuation and workers compensation. The Tribunal is further satisfied that the nominator’s wage payments clearly exceeded the nominee’s salary for the last 3 financial years, as evidenced by the financial statements for 2017, 2018 and 2019.
Based on the documentary evidence provided by the nominator, including the nominee’s Employment Agreement and its financial information, the Tribunal is satisfied that the nominator is running a viable business and remains financially capable of meeting the wage costs of continuing to employ the nominee in his full-time position on a salary of $54,000 per annum plus superannuation for at least 2 years.
Furthermore, based on the Tribunal’s review of the nominee’s Employment Agreement dated 3 May 2017, the Tribunal finds that the terms and conditions of the nominee’s employment do not expressly exclude the possibility of extending the period of employment.
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)
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 has evidence before it, including the nominator’s Organisational Chart, and is satisfied that there are no Australian citizens or permanent residents performing equivalent work as the nominee with the nominator.
The nominee’s Employment Agreement dated 3 May 2017 for the nominated position provides for a salary of $54,000 per annum plus superannuation. The Tribunal has information before it, including recent salary surveys and online research for the position. Payscale states that an average cook’s hourly pay in Australia is $22.23 per hour and that the average cook’s salary in Melbourne, Vic is $54,222 per year. Furthermore, Indeed states that the average hourly rate for a cook in Melbourne is between $21 and $25. The nominee is paid $54,000 per annum plus 9.5% superannuation. The Tribunal is satisfied that the nominee’s salary is in accordance with contemporary market rates and within the range of cooks in the same location.
The Tribunal is satisfied that the Employment Agreement for the nominee has standard provisions relating to annual and sick leave and other terms and conditions of employment that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards.
Given the above, the Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than the terms and conditions 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: r.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 applicant was approved as a standard business sponsor on 23 April 2012 to 23 April 2015 for a period of 3 years. A second standard business sponsor application was approved on 18 November 2015 to 18 November 2020. The criterion requires consideration of the training requirements “during the period of the applicant’s most recent sponsorship approval”, which is the sponsorship approved on 18 November 2015.
As part of the sponsorship approval, the applicant undertook to meet either Training Benchmark A or B, which required the applicant to contribute a percentage of its payroll expenditure of the business, in the provision of training of employees in the business.
The Tribunal notes that the Department refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because the applicant had not provided sufficient evidence that it had met its training commitments since it was approved as a standard business sponsor on 18 November 2015. Specifically, the Department stated that it had not met its training commitments in the first period of the sponsorship from 18 November 2015 to 18 November 2016.
The nominator has subsequently provided additional documentary evidence to the Tribunal regarding its payroll expenditure and evidence of paying for training of its employees and therefore meeting its training requirements.
Payroll expenditure (including wages and superannuation) incurred from 18 November 2015 to 18 November 2016 amounted to $160,825. There is a lack of evidence of payroll expenditure for training during this period. The Tribunal is not satisfied that the applicant fulfilled its commitments for Training Benchmark A or B for the period 18 November 2015 to 18 November 2016.
Payroll expenditure (including wages and superannuation) incurred from 18 November 2016 to 18 November 2017 amounted to $225,167. The applicant incurred applicable expenditure for the provision of training for its employees as evidenced by a receipt dated 1 June 2017 from TAFE Queensland for $3,216.50 for training. This payment amounts to greater than 1% of the applicant’s payroll for this period. The Tribunal is satisfied that the applicant fulfilled its commitments for Training Benchmark B for the second period 18 November 2016 to 18 November 2017.
With respect to the third period from 18 November 2017 to 18 November 2018, amendments to the regulations occurred on 18 March 2018. Since 18 March 2018, there are no training obligations or commitments made for the purpose of satisfying the sponsorship approval criteria because the criteria in regulations 2.59(d) and (e) with respect to meeting training benchmarks no longer applies.
Accordingly, the Tribunal finds that as the third period of 18 November 2017 to 18 November 2018 falls after the amendments to the regulations, the sponsorship did not include any training commitments to be fulfilled for the purposes of satisfying r.5.19(3)(f) during this period. Given that the sponsorship obligation to provide training no longer applied for this period, then the Tribunal considers that the training requirement has been met for this period.
Therefore, the Tribunal has evidence that the nominator has fulfilled its commitments made relating to meeting its training requirements during the second and third years of its sponsorship period, and complied with the applicable sponsorship obligations relating to the applicant’s training requirements during the second and third period of the sponsorship approval; however, it did not do so for the first period due to a lack of evidence for payroll expenses in the first period.
The Tribunal then considered whether it was reasonable to disregard the requirements in r.5.19(3)(f)(i). In considering whether it was reasonable to disregard the requirements in r.5.19(3)(f)(i), the Tribunal had regard to the substantial evidence of receipts and invoices provided by the applicant since 2016. For the financial year 2017, the applicant paid $3216.50 to TAFE Queensland as well as paid $2,251.67 for training which amounted to over 2% of its payroll; and for the financial year 2018, the applicant paid $2,530 to DV Training Solutions for training which amounted to over 1% of its payroll for that year.
The Tribunal gives significant weight to the fact that the applicant has been committed to training and providing education to its Australian citizen and permanent resident employees consistently over the last few years, notwithstanding that due to the change in the regulations, that its standard business sponsorship obligations effectively finished in November 2017, demonstrating its ongoing commitment to paying for training for its employees.
Given the above, the Tribunal finds that it is reasonable to disregard the requirements to fulfil its commitments made relating to training requirements and reasonable to disregard the requirements to comply with the applicable sponsorship obligations relating to the nominator’s training requirements during the period of the sponsorship approval.

Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.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 rr.1.13A and 1.13B.
The Tribunal has reviewed the Department’s records and has not found anything to indicate that there is any adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.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 Tribunal has information from the Fair Work Ombudsman stating that there are no current records of investigations that had resulted in the application of an enforcement tool for the nominator.
There is nothing in the Department’s records to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates a business and employs staff.
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.
Jane Bell
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.

[2021] AATA 328

13 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies