Punjab Curry House Pty Ltd (Migration)

[2021] AATA 1671

Punjab Curry House Pty Ltd (Migration) [2021] AATA 1671 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Punjab Curry House Pty Ltd

CASE NUMBER:  1806913

HOME AFFAIRS REFERENCE(S):          BCC2017/5579

MEMBER:De-Anne Kelly

DATE:31 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 31 March 2021 at 10:07am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Cook – tax returns provided – profitable business – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 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 9 March 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 2 January 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 applicant had not demonstrated that it could provide a full time permanent position to the nominee and pay her an annual salary of $54,675 plus the legislated superannuation payment (total remuneration cost of $59,869.12 based on superannuation rate of 9.5%) for at least the next two years.

5. The applicant appeared before the Tribunal on 15 October 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.

6. The applicant was represented in relation to the review by its registered migration agent, Ms Suzanne Weel MARN: 0316130 of Ausway Migration, Surfers Paradise Qld 4217.

7. 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

8. 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.

9. The business is a restaurant located in Toowoomba Qld and was represented by Mr Ratinderpal Singh the director of the company.  He purchased the business in December 2014 from the previous owner for whom he had worked on a casual basis. Mr Singh works in a health care facility as an assistant in nursing and cannot work in the business. His wife also works in aged care and they have two children.

10. Four people work in the business including the nominee. The business is growing very well and has not used Jobkeeper according to the director.

11. The organisation chart shows the director; a restaurant manager; the nominee as cook; two kitchen hands and (TBC) wait staff.

12. The following tax returns were provided showing a profit for each year from 2016 to 2019.

Tax Return	Q3 2020	2019	2018	2017	2016
Income	135,694	465,557	463,218	460,423	385,720
Superannuation	2,581	10,340	14,919	17,299
Wages	43,975	179,500	201,201	200,443	163,029
Expenses	75,395	447,822	445,919	447,631	372,730
Profit	35,542	17,735	17,299	12,791	12,990

1. On 2 January 2017 the applicant Punjab Curry House Pty Ltd ABN: 98157829591 trading as Punjab Curry House lodged a Regional Sponsored Migration Scheme - visa subclass 187 nomination application in the Temporary Residence Transition (TRT) stream for the position of Cook- ANZSCO 351411 on $54,675 in favour of Ms Manjit Rani.

2. Documents including the following were provided with the original application;

   1)Prep work for recipes.

   2)Letter dated 2 January 2017 from the then registered migration agent, Amit Chandwani MARN: 1001305, regarding necessity for sponsorship; no less favourable conditions and viability of the business.

   3)Letter dated 22 December 2016 from the director advising the nominee has been employed for two years in the position and commenced work on 16 December 2014 to the present day and signed by Mr Ratinder Pal Singh.

   4)Declaration forms -payment for visas dated 22 December 2016.

   5)Selection of advertisements for cooks.

   6)Bank statements 02 December 2013 to 2016. It is noted that employee payment to Sandeep dated 23 January 2013 reads ‘Payment Sandeep pay 23-Jan - $ 1,396.00”; 28 January 2013 reads’ Payment Manjeet Pay 250Jan - $1,396.00”.There is a line item “Withdrawal – Payment Manjit rani wages 09-Feb - $845”.

   7)Letter dated 22 December 2016 regarding duties of the nominated position.

   8)Employment contract dated 22 December 2016 with job description attached.

   9)Letter dated 22 December 2016 from the accountants regarding financial position of the business.

   10)Organisation chart.

   11)Menu.

   12)Photos of storeroom and kitchen.

   13)ABN look up.

   14)Tax invoices for training.

   15)BAS for 2013; 2014; 2015.

   16)Food business license.

   17)ASIC registration dated 2017.

   18)Acknowledgement of nomination application dated 2 January 2017.

   19)Online application for nomination dated 2 January 2017.

   Documents including the following were provided with the review application;

   20)ABN registration.

   21)Selection of training invoices.

   22)BAS for 2012; 2103; 2014; 2015;2016

   23)Organisation chart showing external accountant; Restaurant Manager; Cook F/T (the nominee); Cook P/T; 1 x Kitchen Hand F/T; 1 x Kitchen Hand P/T; 1 x Waiter F/T and 1 x Waiter P/T.

   24)Balance sheet for FY 2017.

   25)Employee reference for the restaurant manager Mr K dated 12 June 2017.

   26)Bank statement for the Restaurant Manager Mr K from 8 May 2015 to 31 Oct 2015.

   27)List of wages transaction s for the Restaurant Manager Mr K from 12 June 2015 to 9 June 2017.

   28)Bank statement for Punjab Curry House Pty Ltd from 02 January 2014 to

   29)Profit and Loss for FY 2017

   30)Letter from the Tribunal dated 30 November 2020 regarding the undated and unsigned PAYG payment summaries for the FY 2015 which cover the period of two years immediately prior to the employer nomination being lodged.

   31)Response from the applicant dated 14 December 2020.

   Section 359AA of the Act

3. At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.

4. Section 359AA provides as follows:

   (a)   The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)   if the Tribunal does so—the Tribunal must:

   (i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii) orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

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

5. 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.

6. Applications must be in the approved form and must be accompanied by the prescribed fee to be valid and acknowledged by the Department of Home Affairs. An acknowledgement dated 2 January 2017 was sent by the Department to the nominator as evidence of a valid application. The Department accepted a declaration made on the online form that the nominator had responded yes in the online form to the following: ‘the applicant certifies that they have not engaged in conduct in relation to this nomination that constitutes a contravention of subsection 245AR (1) of the Migration Act 1958’.

7. The Tribunal is satisfied that the application was made on the approved form 1395 (Internet) for post 23 March 2013 applications, accompanied by the prescribed fee and the nominator has included a written certification stating the nominator has not engaged in conduct in relation to the nomination that contravenes s.245AR(1) of the Act.

8. The application identified a person who holds a subclass 457 visa, namely Ms Manjit Rani which was granted on the basis of satisfying cl.457.223(4) of the Regulations. The application identified an occupation, namely Cook- ANZSCO 351411 that is listed in ANZSCO and has the same 4-digit code as the occupation carried out by the Subclass 457 visa holder.

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

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

10. 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.

11. In the hearing the director confirmed that their restaurant did not utilise Jobkeeper during the pandemic and is currently operating as usual.

12. Punjab Curry House Pty Ltd ABN: 98157829591 trading as Punjab Curry House was the standard business sponsor who identified Ms Manjit Rani as the holder of a Subclass 457 visa in a nomination made under s.140GB of the Act. The sponsor is actively and lawfully operating a business in Australia as evidenced by tax returns from 2016 to 2019 and a BAS for Q3 2020.

13. The most recent business sponsorship was not granted on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

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

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

15. 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.

16. In the hearing the director advised that he purchased the business on 19 November 2015 and had worked casually for the previous owner. The business had retained the same legal entity and ABN number, so the nominator was the same.  The nominee had commenced work for the company after Christmas 2014. The nomination application was lodged on 2 January 2017 so at a minimum the nominee would have had to work from 31 December 2014 to 1 January 2017 such that 2 of the 3 years preceding the nomination application were undertaken as an employee of the nominator in the position of Cook.

17. The PAYG payment summary for FY 2015 show the nominee paid $25,962 however it and the remaining payment summaries for the other staff were not signed and dated. It was noted that the nominee had submitted a PAYG summary where the signature was redacted so little weight could be given to it.

18. The Tribunal wrote to the applicant regarding this matter and were advised by the accountant that they were unable to download a copy of the PAYG summaries from the ATO website as the download was not available. They are only required to hold documents for five years. As a result, all they had access to was the soft copy in their computer system which was unsigned. The accountant advises that are comfortable that these documents are a true and correct reflection of what was provided to the ATO. The nominee’s tax return concurs with the PAYG summary and show her earning $25,962 from the applicant and $25,975 from another company, so approximately 6 months with the applicant which would be 1 January 2015 to 30 June 2016. PAYG payment summaries for the nominee show her earning full wages of $54,000; $55,039; $54,000; $54,000 and $54,000 for the FY’s 2016 to 2020.

19. The Tribunal examined the bank statements and found that bank transfers had been made for the wages of the nominee during the relevant periods of time.

20. The Tribunal finds that the applicant worked 2 out of 3 years in the full-time position of Cook on a subclass 457 visa immediately before the employer nomination was lodged.

21. 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)

22. 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.

23. The applicant advised that they shut down the dining during the COVID-19 pandemic and just did takeaway which went very well. The Tribunal notes the company is profitable albeit and notes that the applicant and his spouse earnt for the FY 2020 respectively $31,603 and $33,820 from their aged care employment which appears to be a comfortable income for a family of four.

24. The current employment agreement dated 15 October 2020 states that it is for “at least ‘two years with no exclusion to further extensions.

25. The Tribunal finds that the applicant has the financial capacity such 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.

26. 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)

27. 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.

28. Payscale shows the salary for a Cook between $40,000 and $56,000 so the nominated positions salary $54,675 is 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.

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

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

30. 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.

31. The applicant submitted a notification of approval as a standard business sponsor granted on 16 September 2020 and valid to 16 September 2025. The Migration (Skilling Australians Fund) Charges Regulations 2018 repealed training requirements and implemented a fee that is paid by nominators at the time of application. Since the new sponsorship period commences on 16 September 2020 and after the implementation of the above act, the sponsor is exempt from complying with the training obligations under Division 2.19 as follows;

    (1) This regulation applies to a person who was lawfully operating a business in Australia
    at the time of:
    (a) the person’s approval as a standard business sponsor (Emphasis added).

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

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

33. 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. 

34. A search of the ASIC website finds the director is not on the banned or disqualified list and there is no other adverse information known to Immigration or to the Tribunal. This was also confirmed at the hearing.

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

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

36. 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.

37. A search of the Fair Work Ombudsman website shows no results for the applicant and indicates they are not the subject of any action by the ombudsman regarding workplace relations. This was confirmed at the hearing.

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

39. 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

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

    De-Anne Kelly
    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.