PREM SAMUEL PRAKASH (Migration)

[2021] AATA 661

PREM SAMUEL PRAKASH (Migration) [2021] AATA 661 (4 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MR PREM SAMUEL PRAKASH

CASE NUMBER:  1813979

HOME AFFAIRS REFERENCE(S):          BCC2017/2201248

MEMBER:Phoebe Dunn

DATE:4 February 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 04 February 2021 at 4:27pm

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition Nomination stream – position of Graphic Pre-Press Trades Worker – financial capacity to employ the nominee for at least 2 years – updated financial information since the COVID-19 pandemic – previous and future employment of the nominee – terms and conditions of employment – training expenditure – decision under review set aside     

LEGISLATION

Fair Work Act2009
Migration Act 1958, ss 140, 245
Migration Amendment (Skilling Australians Fund) Act 2018
Migration Amendment (Skilling Australians Fund) Regulations 2018
Migration Regulations 1994, rr 1.13, 1.20, 2.59, 2.87, 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 Home Affairs on 27 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).

2. The applicant applied for approval on 22 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).

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 the financial capacity to meet its employment obligations to the nominee, including by employing the nominee full-time for at least two years on terms that did not preclude renewal.

5. The applicant appeared before the Tribunal by videoconference on 20 January 2021 to give evidence and present arguments.

6. The hearing was held during the COVID-19 pandemic by video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

8. 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

9. 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.

10. At the hearing, Mr Prakash gave detailed evidence regarding the nature of the business and the nominee’s role with the business. Mr Prakash stated that he commenced the business in 2007 as a small, privately owned and operated commercial printing business, providing offset and digital printing services. He stated that much of his business comes from word of mouth and from other printers who outsource offset printing and some digital printing jobs to his business. He stated that he does a range of work for different clients, such as docket books, business cards, flyers, letterheads and stationery.

11. Mr Prakash stated that the nominee commenced working for him in January 2015, initially part‑time as a volunteer to get practical experience while she was undertaking studies. He stated that he met the nominee through her husband, who had engaged him to print some flyers for his trucking business. He stated that he agreed to give her some volunteer work and to assess her skills. He stated that he was happy with her skills and that she was exactly what he needed to support his business and determined to employ her, rather than going to market. He stated that at that time he had one other person working for him full-time, but that employee went part-time. He stated that he had since employed another Graphic Pre‑Press Trades Worker in October 2016, whom the nominee knew through their studies.

12. At the hearing, the Tribunal explored the financial capacity of the business, noting that this was the determinative issue in the case. In response, Mr Prakash stated that the business had been impacted by the COVID-19 pandemic and that he had closed the business from 23 March 2020 to 2 November 2020. He stated that since he had reopened the business, he had been very busy and was getting a lot of work direct from printers across Melbourne. He stated that he had also engaged a freelancer who was assisting with bringing in new work, which has freed him up to focus on delivering the work for customers, making the process more efficient. He stated that he believed the freelance arrangements would assist with achieving a solid result for the 2021 financial year (FY) which he expected would exceed FY2020 performance notwithstanding the business had been closed for the first five months of FY2021. He noted that he does not pay rent as he operates the business from his home, and his other overheads are low. He also noted that he had just purchased another colour printing machine, enabling him to undertake more of the work in-house rather than outsourcing.

13. The Tribunal requested further submissions and documentation from the applicant to be provided post-hearing, including addressing the financial capacity of the business in the context of the COVID-19 pandemic and compliance with training benchmark commitments and obligations.

    The application must be compliant: r.5.19(3)(a)

14. 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.

15. The application was made on the prescribed form and was accompanied by the required certification and fee. The application identified Ms Gurjit Kaur, the nominee, who according to Departmental records held a Subclass 457 visa from 14 April 2015. The occupation identified in the application is that of Graphic Pre-Press Trades Worker (ANZSCO 392211). The Tribunal is satisfied based on the employment documents for the nominee that the occupation identified is the same occupation carried out by the nominee as the holder of a Subclass 457 visa.

16. Given the above findings, the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

17. 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.

18. Departmental records show that the applicant was the standard business sponsor that last identified the nominee in a nomination made under s.140GB of the Act. Accordingly, r.5.19(3)(b)(i) is met.

19. The Tribunal has had regard to ABN documentation, which confirms that the ABN was most recently registered on 28 May 2020 and is current. The Tribunal has also received current information evidencing that the applicant is actively and lawfully operating a business in Australia as a sole trader, including financial statements from financial year (FY) 2019 to FY2020, tax returns for FY2019 and FY2020, and business activity statements (BAS) from 1 April 2016 to 31 March 2017 and from 1 July 2019 to 39 June 2020. The applicant has also provided a copy of its current Workcover Certificate of Currency for the business. Accordingly, r.5.19(3)(b)(ii) is met.

20. 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 or r.2.59(h) of the Regulations. Accordingly, r.5.19(3)(b)(iii) is met.

21. Given the above, the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

22. 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 two of the three 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 two years in the three years immediately before the application.

23. In this case, r.5.19(3)(c)(i) is the relevant provision. The nominee was granted a Subclass 457 visa on 14 April 2015 to work as a Graphic Pre-Press Trades Worker (ANZSCO 392211), commenced full-time work in the nominated position on 11 May 2015 and the nomination was lodged on 22 June 2017.

24. The Tribunal has considered documentary evidence, including the nominee’s current and previous employment contracts, dated 15 November 2020, position description and taxation records for the nominee from FY2015 to FY2020. The current contract provides for a salary of $54,000 per annum plus superannuation at the legislated rate and the nominee’s taxation records and bank account records are consistent with the contracted salary.

25. The applicant has provided evidence of the nominee being employed full-time in the nominated position for at least two years prior to lodgement of the application, including PAYG summaries and ATO Notices of Assessment from FY2015 to FY2020, payslips from 11 May 2015 to 2 June 2017, superannuation statements for the nominee for 2015 and 2016 and business bank account statements showing transfer of wages to the nominee for the relevant period. The applicant has also provided copies of the nominee’s bank account statements from October 2017 to date, which indicate that the nominee received fortnightly pay of $1,684.93 into her account for the period from 31 October 2017 until 23 March 2020 when the business was temporarily closed due to COVID-19 to 2 November 2020, and thereafter $1,726.92 for the period from 17 November 2020 to date.

26. On the basis of the information before it, the Tribunal is satisfied that the nominee has worked for the applicant full-time in the position of Graphic Pre-Press Trades Worker for at least two years in the three years immediately before the application and is further satisfied that the position carried out by the nominee is that of a Graphic Pre‑Press Trades Worker.

27. 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)

28. 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 two years on terms that do not expressly preclude the possibility of an extension.

29. The determinative issue in this case is whether the applicant has the financial capacity to employ the nominee full-time in the nominated position for a minimum of two years on terms that don’t expressly exclude the possibility of renewal.

30. As noted above, the financial capacity of the applicant to meet its employment obligations for at least two years, including providing full-time employment to the nominee to work in the nominated position on the contracted terms and conditions of employment, was explored in detail at the hearing. The applicant noted that the business was closed temporarily due to the COVID-19 pandemic, during which time the nominee did not receive a salary. The applicant stated that since reopening, the business has been very busy, such that he is looking to exceed FY2020 turnover figures notwithstanding that the business was closed for five months.

31. In post-hearing submissions, the applicant has stated that:

    The business has been operating since 2007 and has developed a strong and loyal customer base as depicted by continuing and strong revenues over the years. Our loyal customer base will ensure the business continues to trade at similar or stronger levels and as such we are clearly able to afford the nominated role on a full-time basis paying the nominee and the other employees in the business agreed and fair market salary rate aligned with salaries being paid to Australian employees performing similar roles in similar work places.

32. The Tribunal notes that it has the benefit of financial statements from FY2018 to FY2020, together with business activity statements from September 2018 to June FY2020 that were not before the delegate at the time of making the original decision. These financial statements show that the applicant made a profit of $65,110 in FY2018, $69,241 in FY2019 and $83,021 in FY2020. In written submissions to the Tribunal the applicant has confirmed that since the business reopened it has been in high demand.

33. The applicant has also provided a letter from its accountant dated 20 January 2021 which states that the business is an established, well-run business, is trading profitably and has no material external debt aside from current trade creditors. The accountant states that in his opinion, the applicant is financially viable and able to meet its debts as and when they fall due. The accountant also states that based on the information before him, he anticipates that the business should achieve gross income of between $200,000 to $250,000 in FY2021.

34. The Tribunal has also considered the most recent signed employment contract in respect of the nominee dated 15 November 2020, outlining the terms and conditions of employment at an annual salary of $54,000 plus superannuation, and providing for a minimum of two years’ employment with no express exclusion of renewal, subject to the nominee maintaining an appropriate working visa. The Tribunal has also taken into consideration the applicant’s employment responsibilities to another employee working for the applicant. The Tribunal has carefully considered the submissions and documentation received from the applicant and finds that the applicant has established that the nominee will be employed on a full‑time basis for at least two years on terms that do not expressly exclude the possibility of extension.

35. 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)

36. 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.

37. There are no other full-time employees who are Australian citizens or permanent residents performing the same role for the business. Evidence before the Tribunal indicates that the nominee is paid a salary of $54,000 per annum plus superannuation at the legislated rate. The nominee’s contract is subject to the Fair Work Act2009 and national employment standards. The applicant has stated that the terms and conditions of employment are no less favourable that those that would be provided to an equivalent Australian citizen or permanent resident employed in an equivalent role at the same location.

38. In advance of the hearing, the applicant provided a market salary review for the nominated position which confirmed that the nominee’s salary is consistent with market expectations. This includes salary data from Payscale extracted on 23 November 2020 which shows that the average salary for a Graphic Pre-Press Trades Worker in Australia is $56,154, with a range of between $41,000 to $65,000, depending on level of experience. It also includes job advertisements on Seek.com with a range of between $50,000 to $60,000.

39. Accordingly, the Tribunal finds that the terms and conditions applicable to the position are no less favourable than those that would be provided to a permanent resident performing equivalent work in the same workplace at the same location.

40. Accordingly, the requirement in r.5.19(3)(e) is met.

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

41. 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.

42. The most recent standard business sponsorship (SBS) for the applicant was approved on 24 September 2016 for a period of five years to 24 September 2021. In written submissions to the Tribunal, the applicant has stated that it has met its training commitments and obligations under Training Benchmark B.

43. The Tribunal notes that when the nomination was lodged on 22 June 2017, the applicant was required to comply with the training benchmark commitments and obligations set out in r.5.19(3)(f) as it applied at that time. These requirements have since been replaced with the requirement to pay the ‘Skilling Australians Fund’ training contribution charge by the Migration Amendment (Skilling Australians Fund) Act 2018 and the Migration Amendment (Skilling Australians Fund) Regulations 2018 (the amending Regulations). The new training contribution charge requirement applies to nomination applications made on or after 12 August 2018.

44. Relevantly for the applicant in this case, the obligation in r.2.87B of the Regulations for sponsors to meet the training benchmarks was repealed by item 33 of the amending Regulations from 12 August 2018, and there is a transitional provision exempting a sponsor from complying with the repealed r.2.87B in relation to a period of 12 months ending on or after 12 August 2018.

45. This means that for the applicant’s most recent SBS, the applicant is exempt from complying with r.2.87B for the second year of the most recent SBS as it ended after 12 August 2018. However, the requirement to ‘fulfil any commitments’ under r.5.19(3)(f)(i)(A) remains. There is no evidence before the Tribunal that the applicant made any other commitments relating to training beyond complying with the r.2.87B obligations.

46. IMMI 13/030 states that for the purposes of meeting Training Benchmark B, the applicant is required to demonstrate recent expenditure by the business to the equivalent of at least 1% of the payroll of the business in the provision of training employees who are Australian citizens and permanent residents and that it is related to the purpose of the business. Relevantly, this includes evidence of payment of external providers to deliver training for Australian citizens and permanent resident employees, but cannot include expenditure on training confined to only one or a few aspects of the business’s broader operations, unless the training is in the primary business activity and is only undertaken by persons who are not Australian citizens or permanent residents or only undertaken by persons who are principals in the business or their family members.

1. For the period of the most recent standard business sponsorship, the applicant has provided the following evidence of meeting its training benchmark commitments and obligations under Training Benchmark B:

   a.    Receipt dated 25 November 2016 from Maple Terra Australis Pty Ltd for $2,101;

   b.    Training Plan from Maple Terra Australis Group Pty Ltd showing the training was delivered to a permanent resident employee who was working part‑time for the business together with another temporary resident employee who was working full‑time;

   c.     Receipt dated 4 January 2108 from Edusoft Services for $2,255 for online training courses: managing work stress and prioritising work showing the training was delivered to a permanent resident employee who was working part‑time for the business together with another temporary resident employee who was working full-time;

   d.    Receipt dated 23 January 2019 from Edusoft Services for $1,320 for online training courses: assertive communication; advertising and promotion. The applicant states that this training was delivered to a permanent resident employee who was working part-time for the business together with another temporary resident employee who was working full-time; and

   e.    Receipt dated 18 January 2020 from Edusoft Services for $880 for online training courses: identifying market opportunities. The applicant states that this training was delivered to a permanent resident employee who was working part-time for the business.

2. The Tribunal notes that it has evidence before it that the applicant met its commitments and obligations under Training Benchmark B in the first year of the most recent SBS by spending money on training Australian citizens and permanent resident employees on matters relevant to the business in accordance with IMMI 13/030. In the first year of the most recent SBS (24 September 2016 to 23 September 2017), the total payroll of the business (wages and superannuation) was $118,100.26 (based on the Tribunal’s calculations), equating to a requirement to spend at least $1,118.10 on training Australian citizens or permanent resident employees on business relevant training.

3. Based on the evidence before it, the Tribunal is satisfied that the applicant met its training benchmark commitments and obligations in the first year of its most recent SBS by spending $2,101 on training a permanent resident employee and a temporary resident employee on matters relevant to their employment in accordance with the requirements of Training Benchmark B and IMMI 13/030.

4. In relation to the second year of the most recent SBS (24 September 2017 to 24 September 2018), the applicant has provided copies of invoices and receipts detailing expenditure on industry related training to a total value of $2,255. In relation to the third year of the most recent SBS (24 September 2018 to 24 September 2019), the applicant has provided copies of invoices and receipts detailing expenditure on industry related training to a total value of $1,320 and in relation to the fourth year of the most recent SBS (24 September 2019 to 23 September 2020), the applicant has provided copies of invoices and receipts detailing expenditure on industry related training to a total value of $880. Based on this evidence, the Tribunal is satisfied that the applicant has demonstrated ongoing expenditure on industry relevant training.

5. The Tribunal finds that by virtue of the introduction of the Skilling Australians Fund levy, the applicant’s obligations under r.2.87B have ceased, and further that there is no evidence before the Tribunal that the applicant made any commitments relating to training beyond complying with the r.2.87B obligations. The Tribunal notes that the applicant met its commitments and obligations in the first year of the most recent SBS and has provided evidence of prior compliance with its commitments and obligations in relation to the previous SBS, as well as evidence of ongoing expenditure on training. Accordingly, the Tribunal considers it is reasonable to exercise its discretion in r.5.19(3)(f)(ii) to disregard any failure by the applicant to meet its ongoing commitments to training in the second and third years of the most recent SBS, noting that they overlapped with the introduction of the Skilling Australians Fund levy.

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

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

7. 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.

8. There is no evidence before the Tribunal to indicate that there is adverse information known to Immigration about the applicant or an associated person.

9. Accordingly, the requirement in r.5.19(3)(g) is met.

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

10. 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.

11. There is no evidence before the Tribunal to indicate that the nominator does not have a satisfactory record of compliance with workplace relations laws in the locations where it operates a business.

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

13. 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

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

    Phoebe Dunn
    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.