PUNJAB DELIGHT PTY LTD (Migration)

PUNJAB DELIGHT PTY LTD (Migration) [2019] AATA 4573 (10 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  PUNJAB DELIGHT PTY LTD
CASE NUMBER:  1719130
DIBP REFERENCE(S):  BCC2017/2313508
MEMBER:Karen McNamara
DATE:10 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 10 October 2019 at 1:11pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Cook – financial capacity to maintain nominee’s future employment – reported salary expenses not reflective of staffing level – nominee’s period of employment in the business – 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 3 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 29 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) of the Regulations. The delegate noted that the applicant failed to provide supporting evidence with their application to demonstrate that the applicant would employ the nominee for at least two years.
The applicant was represented at the hearing by Mr Narinder Singh Birdi. Mr Birdi appeared before the Tribunal on 24 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee Mrs Paramjit Kaur. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
At the conclusion of the hearing, the Tribunal invited the applicant to provide further documentation including the applicant and nominee’s bank statements, nominee’s pay slips, superannuation details, PAYG’s and Notice of Assessments (NOA’s).
On 8 October 2019, the Tribunal received copies of bank statements, nominee’s pay slips, NOA’s, superannuation details and PAYG summaries for all staff.
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.
Background
The applicant operates an Indian cuisine restaurant trading as Maroubra Bay Indian Delight Restaurant, based at Maroubra NSW. The Tribunal was told the business was registered in 2013 but the restaurant has been operating since 2007. Until 2017, the applicant operated two restaurants but due to high rental costs affecting the viability of the second establishment, he closed the Charing Cross Indian Delight Restaurant at Waverly NSW. The business was registered with ASIC on 1 August 2013.
The applicant sponsored Mrs Paramjit Kaur (the nominee), for her Subclass 457 Visa, which Department records confirm that she held at the time of the nomination application.
The applicant’s most recent approval as a standard business sponsor was 10 May 2018 until 10 May 2023.
Department records show that the nominee was granted her 457 Visa on 26 March 2014. The Tribunal was told that the nominee commenced full time employment with the applicant on 15 April 2015 and has occupied the position of Cook (ANZSCO 351411) since.
The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.
The Tribunal discussed with the applicant the requirements of r.19(3). The following is a summary of the oral and written evidence provided to the Tribunal during and following the hearing.
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.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and accompanied by the prescribed fee. The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly the requirements of r.5.19(3)(a)(i) are met.
The application for approval identifies Mrs Paramjit Kaur, who according to Department records, was granted a subclass 457 Visa on 26 March 2014 on the basis of satisfying cl.457.223(4) of Schedule 2. Accordingly the requirements of r.5.19(3)(a)(ii) are met.
The occupation identified in the application is Cook (ANZSCO 351411). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee, the nominee’s contract of employment, payroll records and Department records that the occupation identified is the same occupation as that carried out by the nominee as the holder of a subclass 457 Visa. The Tribunal is also satisfied that this occupation carries the same four digit code as the occupation carried out by the nominee whilst she held the Subclass 457 Visa. Accordingly the requirements of r.5.19(3)(a)(iii) are met.
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 confirm the applicant was granted the most recent business sponsorship in the period 10 May 2018 until 10 May 2023.
The applicant has provided to the Tribunal copies of ATO tax returns, BAS returns and financial records, recording the business has income from sales and has paid wages and withheld tax. The business’s financial statements confirm that the business derives income from the operation of a restaurant. ASIC records before the Tribunal confirm that the business name is registered.
Based on ASIC information, financial documents, business insurance policies and the applicant’s oral evidence, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and did not, meet regulation 1.20DA or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor.
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.
Department records show that the nominee was granted a subclass 457 visa on 26 March 2014. Evidence before the Tribunal including the nominee’s PAYG summaries, NOA’s, payroll records and bank statements, show that the nominee commenced full time employment with the applicant on 15 April 2015 and has continued to be employed full time by the applicant in the position of Cook since. The applicant has provided copies of the nominee’s ATO PAYG Summaries, payslips, bank statements and NOA’s confirming that the nominee, during the term of her employment with the applicant, has been paid the full time nominated salary of $57,000 per annum.
Based on this evidence, the Tribunal is satisfied the nominee has been employed full time in the occupation of Cook, since commencing full time employment with the applicant whilst the holder of a Subclass 457 Visa on 15 April 2015. The Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 Visa for at least two years in the three-year period immediately before this nomination application was made. The requirements in r.5.19(3)( c)(i) have therefore been met.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
The Tribunal notes that the occupation, for which the nominee held the Subclass 457 Visa, is that of Cook (ANZSCO 351411). As the occupation is not one of those specified in the relevant instrument for the purposes of r.5.19(3) (c )(ii), the nominee is not a person described in r.5.19(3) (c )(ii) and the applicant is therefore not exempt from having to satisfy the requirement in r.5.19(3)(d). As the nominee is a person described in r.5.19(3)(c)(i), the applicant must satisfy the requirements of r.5.19(3)(d).
In considering whether the business has the financial capacity to pay the nominated base salary of $57,000 per annum plus 9.5% superannuation to the nominee for two years, the Tribunal has taken into consideration evidence before it including the business’s financial statements and documents submitted to the ATO. The Tribunal notes that the applicant’s financial statements, tax return and BAS returns for the 2019 financial year, recorded sales of $405,666, net equity of $64,144, a net profit of $26,550 and $175,085 in wages. In the 2018 financial year, the applicant recorded sales of $558,675, net equity of $37,584, a net profit of $25,194 and $208,659 in wages.
At the hearing, the Tribunal raised with the applicant that the amount of wages recorded in the applicant’s 2019 financial statements, ATO tax returns and BAS was not reflective of the applicant’s staffing level and questioned the applicant’s capacity to pay three full time salaries. The applicant told the Tribunal that during the 2019 financial year some staff had taken extended leave without pay hence why the reported salary amount was not reflective of the staffing level. Following the hearing, the applicant provided to the Tribunal a copy of all employee’s PAYG’s since the 2017 financial year and a written submission supporting the amount of salary paid to staff during the 2018 and 2019 financial years.
Evidence before the Tribunal shows that applicant employs three fulltime Cooks (two are EN 186 nominees) and approximately four part time employees. Mr Birdi told the Tribunal that he does not receive a salary from the business. The Tribunal has taken into consideration the applicant’s explanation for the reduced amount of wages recorded and has considered the applicant’s capacity to meet three full time salaries (including the nominee’s) in addition to part time salary costs.
As part of the consideration the Tribunal has given weight to information before it including the applicant’s bank statements, Tax and BAS returns and financial statements dating back to 2016, which support the applicant, has met payroll and operating costs since 2016. Further weight has been afforded to the applicant’s 2019 financial year recorded net equity of $64,144 and net profit of $26,550. The Tribunal is satisfied that the total profit and equity of the applicant, if required, will cover any shortfall in salary costs.
Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to maintain the nominee’s full time employment as they have done since the nominee commenced full time employment with the applicant in April 2015.
Accordingly, the requirement in r.5.19(3)(d)(i) is met.
The Tribunal has had regard to the contract of employment for the nominee dated 28 June 2017, which sets out the terms and conditions of employment and indicate that the period of employment is two years upon the granting of a visa. At the hearing, the applicant advised the Tribunal that the business would employ the nominee indefinitely for as long as the nominee wished to stay in their employ. The contract stipulates the base salary is $57,000 per annum exclusive of superannuation with hours of work 38 hours per week. There is no term excluding an extension of the contract.
The Tribunal is satisfied based on the employment contract dated 28 June 2017 and other material before it that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(3) (d) (ii) is met.
As the criteria in both r.5.19(3)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(3)(d) are 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 contract of employment dated 28 June 2017 sets out the nominee’s terms and conditions of employment and indicates that the nominee’s base salary is $57,000 per annum, exclusive of superannuation with hours of work 38 hours per week. The nominee’s leave entitlements include annual, personal/carers, parental and long service leave.
The Tribunal has received payslips, ATO PAYG summaries, NOA’s and bank statements confirming that the nominee since 15 April 2015 has been paid the nominated salary amount of $57,000 per annum. Superannuation statements provided to the Tribunal support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and condition applicable to the 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.
The Department’s records confirm the applicant was granted the most recent business sponsorship in the period 10 May 2018 to 10 May 2023.
From 18 March 2018, a number of criteria relating to approval as a standard business sponsorship are no longer applicable even in relation to applications for approval made prior to that date. These were:[1]
·if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more - the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing (r.2.59(d));
·if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months - the applicant has an auditable plan to meet the benchmarks specified in the written instrument (r.2.59(e));
·if the applicant has previously been a standard business sponsor, either the applicant fulfilled any commitments and complied with applicable obligations relating to training requirements, or it is reasonable to disregard that requirement (r.2.59(j)).
[1] r.2.59(d), (e), and (j) were repealed by F2018L00262, and specified to no longer apply to applications for approval as a standard business sponsor made, but not finally determined before 18 March 2018 (see clause 6704(2) of Schedule 13 of the Regulations).
It should be noted that even if failure to satisfy one of these criteria was the reason for a Departmental delegate (before 18 March 2018) refusing to approve an applicant as a standard business sponsor, this will no longer be relevant to reviews conducted by the Tribunal.
For subclass 482 nomination applications lodged on or after 12 August 2018, sponsors (or individuals who have applied to become a standard business sponsor or a labour agreement sponsor) must pay the applicable nomination training contribution charge (referred to as a contribution to the SAF or the ‘SAF levy’). The nomination training contribution charge is payable in full at the time of lodging a nomination application. The payment of a SAF levy replaces the training benchmark requirements and obligations relating to training requirements for approval as a standard business sponsor.
The Tribunal finds that as the applicant’s most recent sponsorship approval as a standard business sponsor was on 10 May 2018 and because this approval was not subject to training requirements and obligations, the requirements for the applicant to have met them for the purposes of satisfying r.5.19(3)(f) are no longer applicable.
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.
There is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.

Accordingly, the requirement in r.5.19(3)(h) is met.
Conclusion
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19(3) 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.
Karen McNamara
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.

[2019] AATA 4573

10 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal