Phase 33 Pty Ltd (Migration)

Phase 33 Pty Ltd (Migration) [2019] AATA 5610 (2 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Phase 33 Pty Ltd
CASE NUMBER:  1719182
DIBP REFERENCE(S):  BCC2017/2101444
MEMBER:Peter Emmerton
DATE:2 December 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 02 December 2019 at 2:51pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Chef – financial capacity to maintain term of employment – training commitments and obligations – established business – eligible expenditure – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 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 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).
The applicant applied for approval on 14 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).
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)(d) or r.5.19(3)(f) of the Regulations because documents were not produced that satisfied the delegate that the nominee would be employed on a full-time basis in the position for at least 2 years, (5.19(3)(d)). Nor had the application identified and demonstrated that the nominator met the training requirements in relation to 5.19(3)(f).
The applicant represented by Mr Terence Chua, 1 of the 3 Directors, appeared before the Tribunal, via video, on 2 December 2019 in a joint hearing with MRT file reference 1723258 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Zamry Bin Kader Meerah, the visa applicant. The Tribunal found all those presenting evidence to be credible and they appeared to answer questions in an open and honest manner without obfuscation.
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 of the requirements must be met.
In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.
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.
The company applied on the approved form and paid the required application fee. The application therefore satisfies r.5.19(3)(a)(i).
The application identifies Mr Zamry Bin Kader Meerah for the nominated occupation of Chef. The Department’s movement details confirm that his original 457 visa was granted on 3 December 2014. The Tribunal is satisfied from this evidence that the nominee held a Subclass 457 (Temporary Work (Skilled)) visa at the date the application was made on 14 June 2017. The applicant therefore, satisfies the requirement in r.5.19(3)(a)(ii).
Regulation 5.19(3)(a)(iii) requires the applicant to identify an occupation with the same ANZSCO unit code as the occupation carried out by the holder of the Subclass 457 visa identified in the application. The company nominated the position of Chef in the application for approval of the nomination, ANZSCO 351311. The Tribunal has carefully considered the tasks undertaken by the nominee and compared these to the tasks for Chef listed in ANZSCO 351311. The Tribunal is satisfied that the nominee is undertaking the role of Chef within the business. The Tribunal notes that subsequent to the original application the visa applicant has been promoted to Head Chef. The Tribunal finds that the applicant has identified the occupation of Chef ANZSCO 351311, which has the same (4 digit occupation unit) group code as the occupation carried out by Mr Meerah. Accordingly, the Tribunal finds that the applicant satisfies r.5.19(3)(a)(iii).
The Tribunal observed that the visa applicant was clearly very experienced and knowledgeable in his field. There was a solidly demonstrated relationship of mutual respect and reliance between the nominating entity and the visa applicant.
Given the above findings, the requirements in r.5.19(3)(a) are 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 records confirm the company was approved as a Standard Business Sponsor, most recently for 5 years from 15 December 2015. The Tribunal has had regard to the business registration and ABN records on the ASIC public databases, as well as financial records, Tax Returns up to FY 2018 and recent BAS statements, for the business, provided by the applicant to the Tribunal. The Tribunal accepts from this that the applicant is currently registered as a business, Phase 33 Pty Ltd, (ABN 36 163 943 128) and ASIC records show that it has been registered since 24 May 2013. The Tribunal is satisfied based on the fore-mentioned evidence that the applicant is actively and lawfully operating a business in Australia. It therefore, satisfies regulation r.5.19(3)(b)(ii).
The Department's records confirm the applicant was the Standard Business Sponsor who last identified Mr Meerah in a nomination under section 140GB of the Act. In that case, it satisfies regulation r.5.19(3)(b)(i).
The Department's records also confirm the applicant did not obtain approval as a Standard Business Sponsor on the basis that it was operating a business outside Australia. In that case, it meets the criteria in regulation r.5.19(3)(b)(iii).
Given the above, the requirements in r.5.19(3)(b) are 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 they hold 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 they were 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 is satisfied from the employment contracts produced, dated 11 June 2017 and September 2018 and evidence given to the Tribunal plus evidence provided by the Department, that Mr Meerah has worked for the company since December 2014.
The Tribunal finds from the above evidence discussed that Mr Meerah was employed full-time in Australia, as a Chef for more than two of the three years preceding the nomination application made on 14 June 2017. During this period, he was the holder of a Subclass 457 visa granted on 23 January 2014.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Term of employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The Tribunal notes that the business is substantial and it appears to be stable with sufficient income and adequate profit to pay the nominee. The Tribunal notes a profit before tax of 10% on revenue of approximately $2.5m. This was demonstrated to the Tribunal by the provision of current BAS documentation, Profit and Loss statements for FY 2018 and FY 2017 and current payroll advice.
The Tribunal is satisfied that it will be able to sustainably employ the nominee for the required 2-year period minimum.
The Tribunal has had regard to the signed Employment Agreement, dated 11 June 2017, with a salary inclusive of Superannuation of $66,662-50 and the subsequent Employment Agreement as Head Chef, dated 24 September 2018 with a salary of $70,000 plus Superannuation. The Tribunal is satisfied that the nominee will be appointed for a period of at least 2 years employment from grant of visa and the terms of employment do not include an express exclusion of 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 condition 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 been provided with the nominee’s current employment contract. The Tribunal accepts that the nominee’s current annual salary of $70,000 plus Superannuation, as appropriate and is reflective of his experience relevant to the nominated position. Additionally the Tribunal researched the salaries offered for similar positions and had regard for the salary determination evidence presented by the nominating entity. The Tribunal was furnished with pay slips and Taxation documents demonstrating the salary and superannuation as stated in the contract.
The Tribunal acknowledges the challenges of recruiting and retaining qualified Chefs throughout large portions of Australia and is likewise cognisant of the labour market distortions brought about by the fluctuating mining cycles in Western Australia. One of the challenges faced by the nominator is their reliance upon their Head Chef. The Tribunal spent some time exploring the current employment challenges in the restaurant industry in Western Australia and some of the exacerbating circumstances with the nominator. The Tribunal is satisfied that the terms and conditions of employment are equivalent to other employees with the same experience, performing equivalent work in the same workplace.
Accordingly the requirements of r.5.19(3)(e) are 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.
A person who is a standard business sponsor of at least one primary sponsored person must comply with requirements relating to training of Australian workers, in each year the person engages a Subclass 457 visa holder.[1]
[1] r.2.87B as inserted by SLI 2013 No.146. In addition to sanctions being able to be imposed for breach of this sponsorship
The requirements relating to training are specified by the Minister in an instrument in writing,[2] and are the same requirements as the benchmarks for the training of Australian citizens and Australian permanent residents specified for the criteria for approval as a standard business sponsor under r.2.87B.
[2] r.2.87B(2) and (3). The current instrument is in the Register of Instruments – Business Visas, under the ‘Training’ tab.
For an established business as is the case here, expenditure that can count towards this benchmark includes:
·    paying for a formal course of study for the business’s 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 business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or 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 business’s 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;
·    on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating:
o the learning outcomes of the employee at each stage;
o how the progress of the employee will be monitored and assessed;
o how the program will provide additional and enhanced skills;
o the use of qualified trainers to develop the program and set assessments;                    and
o the number of people participating and their skill/occupation.
The Tribunal notes that the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(f) of the Regulations because they were not satisfied that the nominator had demonstrated their compliance with the stipulated training requirements. It was not possible for the delegate to reach an alternate conclusion as the nominator had failed to provide the requested supporting documentation.
The Tribunal has carefully reviewed the detailed information subsequently provided to it, by the applicant, in relation to the nature of the expenditure undertaken for training its’ Australian citizens or permanent resident personnel and is satisfied that it fits within the descriptions above of expenditure that can count towards this benchmark. The Tribunal notes that substantially more relevant information supporting the training claims was provided to it, than was initially provided to the delegate.
Evidence of the appropriate levels of expenditure was provided in the form of payroll advice, PAYG summaries and apprenticeship training timesheets, invoices and debtor statements from Hospitality Group Training. The amounts substantially exceed the required percentage of annual payrolls.
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 r.1.13A and 1.13B. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with the immigration laws of Australia.
Accordingly the requirements of r.5.19(3)(g) are met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires that the applicant 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. There is no evidence before the Tribunal that the applicant has anything but a satisfactory record of compliance with workplace relations law in Australia.
Accordingly the requirements of r.5.19(3)(h) are met.
Conclusion
Based on the findings above, the Tribunal is satisfied that the applicant meets all the requirements of r.5.19(3) and therefore, 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.
Peter Emmerton
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.

obligation, applicants for variation of sponsorship approval under r.2.68 are required to have complied with this obligation
during the period of the applicant’s most recent approval as a standard business sponsor in order to have their application for
variation of the terms of their sponsorship approved. See r.2.68(k)(i)(B) as inserted by SLI 2013 No.146 for applications for the
variation of the terms of approval as a sponsor made, but not finally determined, before 1 July 2013 or made on or after 1 July

2013.

[2019] AATA 5610

2 December 2019

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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