PRIME ENTERPRISE HOLDINGS PTY LTD (Migration)

PRIME ENTERPRISE HOLDINGS PTY LTD (Migration) [2021] AATA 1891 (23 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  PRIME ENTERPRISE HOLDINGS PTY LTD
CASE NUMBER:  1818719
HOME AFFAIRS REFERENCE(S):          BCC2017/4095666
MEMBER:Nicola Findson
DATE:23 April 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 April 2021 at 4:19pm
CATCHWORDS
MIGRATION – approval of a nomination – Temporary Residence Transition nomination stream – occupation of Café or Restaurant Manager – genuine need for the position – updated business information – terms and conditions of employment no less favourable – training commitments – reasonable to disregard adverse information – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.13, 5.19, 5.37
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 25 June 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 3 November 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)(i) of the Regulations because the delegate found that the applicant had failed to demonstrate a genuine need to employ the nominee, as a paid employee, to work in the position under the nominators direct control.
Ms Baorong Jia, Director of the applicant, appeared before the Tribunal on 10 March 2021, to give evidence and present arguments. The Tribunal also received oral evidence from Management Consultant to the applicant, Mr Tim Song. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent. The migration agent also attended the Tribunal hearing.
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 applicant company operates multiple businesses in the food services industry. It has nominated the position of Café or Restaurant Manager (ANZSCO 141111), in relation to Ms Ranqi Zheng, for approval.
On 30 November 2020, the Tribunal wrote to the applicant, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (4). The applicant responded by the extended due date and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:
·ASIC and ABN records;
·Financial Statements for the years ended 30 June 2018 and 2019;
·Company Tax Returns for the years ended 30 June 2019 and 2020;
·Profit and Loss Statement for the year ended 30 June 2020;
·Business Activity Statements (BAS) for the period July 2018 to September 2020;
·Current organisational structure chart;
·Updated Employment Contract between the applicant and nominee dated 18 November 2020;
·Payroll records in relation to the nominee (including payslips, PAYG Summary Statements and Notices of Assessments from 2015 to 2020);
·Evidence of market salary rate, including information from PayScale, relevant to the nominated position;
·Evidence of payroll and training expenditure incurred by the applicant during the period of its most recent sponsorship approval; and
·Position description for the nominated position, including examples of work duties undertaken in the nominated position and photographs.
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, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.
From the material on the Departmental file, and the material provided to the Tribunal, the Tribunal is satisfied that the nomination application complied with the above requirements.
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 records indicate that the applicant was most recently approved as a standard business sponsor from 15 May 2017 to 14 May 2022, and before that, on 7 November 2013. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Ms Ranqi Zheng, and nominated her for a Subclass 457 visa. The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.
In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from the financial documents provided from 2018/19 to 2019/20, recent BAS to September 2020, and the evidence of its current ABN and ASIC registrations that the applicant is actively and lawfully operating a business in Australia.
Given the above, the requirement in r.5.19(3)(b) is 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 applicant has provided to the Tribunal evidence that the nominee commenced working in the nominated occupation of Café or Restaurant Manager with the nominator - at ‘Sushi Master’, Hillarys, Western Australia - as the holder of a Subclass 457 visa, in September 2015. This nomination was lodged on 3 November 2017.
The applicant has provided to the Tribunal evidence (payroll records, including payslips, PAYG Payment Summaries and Notices of Assessment) that the nominee has been employed in the position since September 2015 and has continued to be employed since. The evidence before the Tribunal confirms that the nominee has worked in a full-time capacity in the position of Café or Restaurant Manager, for the applicant, for a period of two years whilst holding a Subclass 457 visa.
On the evidence before it, the Tribunal is satisfied that the nominee has been employed full time in Australia in the relevant position for at least 2 years in the 3 years before the nomination was made. The requirements of r.5.19(3)(c)(i) are therefore satisfied.
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.
As set out above, the Tribunal is satisfied that the nominee has been employed by the applicant since September 2015 on a full-time basis, based on the financial documentation provided (including PAYG summary statements from the nominee and a selection of her payslips).
The Tribunal has before it a copy of an updated contract of employment between the applicant and nominee, which sets out that the applicant will provide full time employment for the nominee for a period of 2 years. The contract, which sets out the terms and conditions of employment, indicates that the period of employment is a minimum of 2 years full time from the date of the visa grant, with capacity to extend the employment.
The Tribunal has had regard to the applicant’s financial capacity to employ the nominee and is satisfied, on the basis of the financial reports and its ability to maintain the nominee’s employment to date, that the applicant can provide employment to the nominee for a period of at least 2 years.
Given the above, the Tribunal is satisfied 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. It follows that 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 had regard to the terms and conditions of employment as set out in the updated employment contract dated 18 November 2020 before it. The contract provides for the nominee’s leave entitlements and indicates that the base salary will be $58,000pa plus 9.5% superannuation. The Tribunal is satisfied that the nominee’s terms and conditions of employment reflect current employment laws.
The Tribunal has considered information before it, including current information from payscale.com.au, which indicates that a Restaurant Manager in Australia can expect to earn between $48,000 and $69,000 per annum. On the basis of this information, the Tribunal is satisfied that the nominee’s base salary is within the range of that normally paid to a similarly experienced Restaurant Manager.
In addition, based on the information provided, the Tribunal observes that the applicant employs other Managers to work in other restaurants operated by it, and each of those Managers receive the same salary for the same work as the nominated person.
The Tribunal is satisfied that the terms and conditions applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
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.
Department records indicate that the applicant was most recently approved as a standard business sponsor on 15 May 2017, for a period of five years.
The applicant claims to have fulfilled the training commitment made in relation to meeting the training requirement and has provided evidence of expenditure in respect of trainee, Mr Chan, in the FYE 2018 (including a Training Contract, a selection of payslips and a PAYG Summary for the year ended 30 June 2018). The information indicates that the total expenditure on payroll and training in respect of that employee for that period was $52,000.
The applicant has provided to the Tribunal evidence that the total payroll expenditure for the FYE 2018 was $430,394 (including superannuation). The Tribunal is therefore satisfied that the applicant’s expenditure on training during that period was at least 1% of the payroll expenditure.
On 12 August 2018, Schedule 1 of the Migration Amendment (Skilling Australians Funds) Regulation 2018 commenced, which had the effect of repealing r.2.87B and replacing it with new requirements. Rather than requiring an assessment of whether sponsors have met training benchmarks, the new scheme only requires employers to make a financial contribution on the lodgement of a new nomination application (post 12 August 2018), known as the SAF Levy. Also included with these amendments was the addition of a transitional provision in schedule 13 of the Regulations, cl.7602(5), which states:
A person is not required to comply with subregulation 2.87B(2) or (3) in relation to a period of 12 months ending on or after the commencement day.
The impact of the transitional arrangement is that there is no obligation on the applicant in this case to comply with the requirement set out in the repealed r.2.87B from the period of 12 months starting on 15 May 2018, the anniversary of the sponsor’s approval.
Having made these findings, the Tribunal is satisfied the applicant has fulfilled commitments made relating to meeting the training requirements during the relevant period and therefore complied with the applicable sponsorship obligations relating to the applicant’s training requirements during that period.
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 notes that the relevant version of r.1.13A provides that ‘adverse information’ is any adverse information relevant to a person’s suitability as a nominator within the meaning of r.5.19, and includes information that the person (or a person associated with the person):
- has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of matters including discrimination, immigration, industrial relations, occupational health and safety, people-smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism or trafficking in persons and debt bondage;
- has, to the satisfaction of a competent authority, acted in contravention of such a law;
- has been the subject of administrative action (including being issued with a warning) by a competent authority, for a possible contravention of such a law;
- is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or
- has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and s.95 of the Corporations Act 2001 (r.1.13A(1)(a) to (e) and (2)).
Regulation 2.57 provides that a ‘competent authority’ is a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.
Subregulation 1.13A(3) provides that the conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the previous 3 years.
Information provided to the Tribunal by the applicant, indicates that on 11 September 2020, the Australian Border Force (ABF) made a decision under section 140M to bar the applicant for six months from making future applications for approval as a standard business sponsor. In addition, the information indicates the applicant being subject to an enforceable undertaking with the Commonwealth of Australia (represented by the Office of the Fair Work Ombudsman) from 29 June 2018. The Tribunal accordingly finds that there is adverse information known to Immigration about the nominator.
The Tribunal notes that on 9 March 2021, the Department issued a certificate pursuant to s.376 of the Act, in relation to a recommendation report arising out of the monitoring undertaken in relation to the applicant company in 2020. At the hearing, the Tribunal discussed the validity of the non-disclosure certificate with the applicant. It indicated that its preliminary view was that the certificate was valid for the reason of its disclosure being contrary to the public interest, as outlined by the delegate on the certificate. When invited to do so, the applicant did not make any submission as to the validity of the certificate.
The Tribunal has the discretion to disclose information which is the subject of a certificate issued under s.376, or it may withhold the information, having regard to any comments raised by the delegate in the certificate. The Tribunal decided that the s.376 was valid and, having reviewed the material, determined not to release it to the applicant. In forming this view, the Tribunal considered that the details which led to the sponsorship ban had already been provided to the Tribunal by the applicant and that it was simply unnecessary to release the report because it would not have assisted to provide the applicant with natural justice in this review.
In considering whether it is reasonable to disregard the adverse information, the Tribunal has had regard to a written submission provided by the applicant as well as the oral evidence of both Ms Jia and Mr Song about the circumstances surrounding the ‘significant failures’ identified by the ABF in its decision.
The ABF found that the applicant had failed in its obligation to ensure equivalent terms and conditions of employment between 6 July 2019 and 5 August 2019, and underpaid a sponsored person by $4,146.15. The applicant claimed that the underpayment was as a result of the unpaid leave taken by the relevant employee. It also claimed that the ABF referred to policy requirements in relation to the 457 visa program (“extended leave without pay does not meet policy requirements is not compatible with the purpose of the (457) visa”), which were not readily available or communicated to the applicant until the time of the ABF decision. The material before the Tribunal indicates that the applicant ensured the sponsored person was able to access leave entitlements, to satisfy the obligation to ensure equivalent terms and conditions of employment; the leave did not exceed 3 months; she remained in full-time employment; and the leave was taken for a legitimate reason (English language studies) and mutually agreed between the applicant and sponsored employee. The material also reflects that since the ABF decision, the applicant has taken steps to rectify the underpayment and paid the correct amount to the relevant person.

The ABF found that the applicant had failed in its obligation not to recover, transfer or take actions that would result in another person paying for certain costs. This failure identified by the ABF concerned transactions from a sponsored person to the applicant’s then migration agent. The ABF was of the view that these transactions were recovered from the sponsored person for costs incurred in relation to the company sponsorship. The applicant claims this is not the case, and that it was not given the opportunity to provide evidence in support of its claim before the ABF made its decision. The Tribunal observes that the material before it indicates that the amount transferred from the sponsored person to the migration agent was for costs incurred in relation to visa application charges, including costs related to a skill assessment, health insurance, and migration agent fees.
The ABF also found that the applicant had failed to continue to meet an enforceable undertaking imposed by the Fair Work Ombudsman. The applicant claims, and the evidence supports, that it has rectified issues identified by the Fair Work Ombudsman by making the required repayments, provided training to management and payroll staff and implemented a system of regular review. In addition, the Fair Work Ombudsman has confirmed that the applicant complied with the enforceable undertaking.
The Tribunal has considered all of the evidence before it and is persuaded that the applicant has demonstrated that the failures identified by the ABF were not intentional; has complied with the Fair Work Ombudsman enforceable undertaking; and has rectified the underpayments raised in the decision of the ABF. The Tribunal has had regard to a submission on behalf of the applicant that Departmental policy describes a sponsorship bar of 6 months as a “shorter period” and that the ABF stated in its decision that the applicant was cooperative at all times with its monitoring activity. The Tribunal further notes that the period of the bar has now passed. Given the nature of the ‘failures’, the explanation provided in respect of them, and the efforts made by the applicant to address them, the Tribunal considers that in the circumstances it is reasonable to disregard the adverse information known.
Given the above, the Tribunal finds that r.5.19(3)(g)(ii) is satisfied.
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 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.
There is no evidence before the Tribunal to indicate that the applicant has not complied with workplace relation laws.
Accordingly, the requirement in r.5.19(3)(h) is met.
Genuine need to employ nominee: r.5.19(3)(i)
Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account additional evidence before the Tribunal which was not available to the delegate at the time of decision, regarding the nature and scope of the applicant’s operations, as well as an explanation as to why there is a genuine need for a Restaurant Manager in the applicant business. Ms Jia gave oral evidence that the applicant company currently operates several restaurants, which open for lunch and dinner from Monday to Saturday. She indicated that each of the restaurants are significant businesses – each offering dine-in table service as well as takeaway and catering services.
The Tribunal was told that Ms Jia is not involved in the day to day operations of the restaurants. Rather, her main responsibility and focus is to manage the long-term strategic direction and profitability of the entire applicant company.
The Tribunal was told that it is the Restaurant Manager who is the ‘core of the business’, playing a critical role in ensuring the business runs smoothly and driving the quality, people and profit of the restaurant. Ms Jia gave detailed evidence about the nominee’s duties and responsibilities and her contributions to the applicant business based on her skills, experience and length of service.
The Tribunal accepts the evidence before it regarding the applicant’s efforts to find a suitably qualified and experienced person to fill the nominated position, on a long-term basis. The evidence before the Tribunal is that the applicant is committed to providing employment opportunities to Australian citizens and permanent residents, and consistently advertises locally to recruit staff for its restaurants. Ms Jia indicated to the Tribunal that it is very difficult to find reliable and capable employees to work in the food services industry, especially in the current climate.
The Tribunal is satisfied that the nominee has genuinely been carrying out the duties of a Restaurant Manager described by ANZSCO for the applicant for more than five years. The Tribunal also accepts the evidence before it that the nominee has the requisite skills and experience to perform the role, and will continue to be a valuable employee of the applicant and crucial to the success of the applicant’s business operations.
Having considered all of the evidence before it, the Tribunal is persuaded that there is a genuine need for the applicant to employ the nominee, as a paid employee, to work in the position under the applicant’s direct control, and it finds that the requirement in r.5.19(3)(i) is met.
Conclusion
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.
Nicola Findson
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and
(b)be accompanied by the fee mentioned in regulation 5.37.
Temporary Residence Transition nomination
(3)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)       is made in accordance with subregulation (2); and
(ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and
(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

[2021] AATA 1891

23 April 2021

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