Raktacino Holdings Pty Ltd (Migration)

[2021] AATA 605

Raktacino Holdings Pty Ltd (Migration) [2021] AATA 605 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Raktacino Holdings Pty Ltd

CASE NUMBER:  1819227

HOME AFFAIRS REFERENCE(S):          BCC2017/3762265

MEMBER:Mary Sheargold

DATE:3 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 03 March 2021 at 10:31am

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – training requirements – sponsorship obligation to provide training no longer applies – applicant company acquired by new directors between times when application made and decided – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 359, 359C
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 16 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).

2. The applicant applied for approval on 13 October 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)(f) of the Regulations because it did not demonstrate that it had met the requirements in relation to training during the period of its most recent standard business sponsorship approval, and the delegate did not find it reasonable to disregard that requirement.

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. 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.

8. On 20 November 2020, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting it to provide updated information in relation to its business.  The letter stated that a response was due by 4 December 2020.  The applicant’s representative first corresponded with the Tribunal in relation to this letter on 11 December 2020, requesting an extension of time to provide the information requested as, due to understandably stressful personal circumstances, he had misread the response date.

9. The Tribunal notes that it does not have the power to grant an extension of time to respond to a request for information pursuant to s.359(2) of the Act in circumstances where that request is received after the response is due.  Rather, s.359C(2) of the Act is invoked, and pursuant to s.360(2)(c) of the Act, the applicant lost its entitlement to a hearing in relation to this application. 

10. The Tribunal notes that on 11 December 2020 and 21 December 2020, the applicant’s representative provided a volume of material in response to the Tribunal’s request of 20 November 2020.  These comprised:

    ·a current and historical company extract from the Australian Securities and Investments Commission (ASIC) for Raktacino Holdings Pty Ltd dated 24 November 2020;

    ·copies of business activity statements (BAS) for each quarter from July 2018 to September 2020 inclusive;

    ·a copy of the trust tax return for the Raktacino Café Unit Trust for the financial year ending on 30 June 2020 and the financial year ending on 30 June 2019;

    ·a detailed financial statement for the applicant’s business for the financial year ending on 30 June 2020;

    ·an organisational chart for the applicant’s business;

    ·a position description for the nominated position;

    ·a copy of the current employment contract between the applicant and the nominee dated 12 November 2020;

    ·a copy of the previous employment contract between the applicant and the nominee dated 7 July 2014;

    ·copies of the nominee’s PAYG statements for the financial years ending on 30 June 2019 and 2020;

    ·copies of the nominee’s notices of assessment from the Australian Taxation Office for the financial years ending on 30 June 2018, 2019 and 2020;

    ·evidence of payments to the nominee’s superannuation fund in each of the 2018-19 and 2019-20 financial years;

    ·a copy of the applicant’s approval as a standard business sponsor from 12 June 2014 to 12 June 2017;

    ·evidence in relation to payroll and training expenditure between 12 June 2014 and 12 June 2017; and

    ·a letter from the applicant’s representative.

11. The Tribunal considered these documents and submissions, and determined that it could not make a favourable decision on the basis of that information alone.  Therefore, on 11 February 2021, the Tribunal issued a further request for information pursuant to s.359(2) of the Act.  In this instance, the Tribunal invited the applicant’s director, Mr Vijay Pachhai, to attend an interview with the Tribunal on 17 February 2021.  At that interview, the Tribunal learned that the applicant had been acquired by new directors in the period between the date the application was made to the Department and the date the application was refused by the Department.  The Tribunal requested further documents from the applicant to be received by 17 March 2021, being documents verifying the nominee’s employment with the applicant whilst she held a Subclass 457 visa, as well as further evidence in relation to the applicant’s most recent standard business sponsorship approval.

12. On 2 March 2021, the applicant provided the Tribunal with payroll summaries for each financial year ending on 30 June from 2015 to 2018 inclusive, as well as evidence of the applicant’s recent approval as a standard business sponsor from 18 February 2021 to 18 February 2026.

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

13. 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.

14. The Tribunal has reviewed the documentation in the Department’s file, and is satisfied that the applicant’s nomination application was made on the approved internet form, and the relevant s.245AR(1) certification was also provided in the application form.  The letter from the Department to the applicant dated 13 October 2017 indicates that the nomination application fee has been paid.

15. The application for approval identifies Ms Lorna Eileen O’Toole, the nominee who, according to Departmental records, held a Subclass 457 visa from 29 July 2014 that was granted on the basis of satisfying cl.457.233(4) of Schedule 2 to the Regulations.

16. The application for approval identifies the occupation of Café or Restaurant Manager, ANZSCO 141111.  Based on the employment documents for the nominee, the Tribunal is satisfied that the occupation identified is the same occupation as that carried out by her as the holder of a Subclass 457 visa.  Accordingly, the Tribunal is satisfied that this occupation carries the same 4 digit code (1411) as the occupation carried out by the nominee whilst she held the Subclass 457 visa.

    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 confirm that the nominator was the standard business sponsor who last identified Ms O’Toole in a nomination made under s.140GB of the Act.  The nominator was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h), or r.2.68(i).

19. The applicant has provided the Tribunal with a copy of its ASIC records dated 24 November 2020, a detailed financial statement for the year ending on 30 June 2020, trust tax returns, BAS, and numerous other documents demonstrating that it is operating its business in Australia. 

20. On the basis of the material before it, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia. Therefore, the requirement in r.5.19(3)(b) is met.

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

21. 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.

22. In this case, the relevant provision is set out in r.5.19(3)(c)(i). The nomination application was made on 13 October 2017.

23. The nominee was granted her Subclass 457 visa in the nominated occupation of Café or Restaurant Manager on 29 July 2014, sponsored by the applicant.  The applicant was approved as a standard business sponsor from 12 June 2014 to 12 June 2017 and more recently from 18 February 2021 to 18 February 2026. 

24. The Tribunal has had regard to the payroll summaries for the applicant for the financial years ending on 30 June 2015, 2016, 2017 and 2018, the PAYG statements for the nominee for the last 3 financial years, and the previous employment contract for the nominee, and finds that the nominee has been working for the applicant in the role of Café or Restaurant Manager continuously since that time.

25. 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)

26. 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.

27. The Tribunal has considered the latest contract of employment between the applicant and the nominee and notes it provides for “continued” “permanent” employment with the applicant in the position of Restaurant Manager on a “full time basis” and on an “ongoing basis”.  The Tribunal has considered the terms of the employment contract along with the evidence given by Mr Pachhai at interview where he stated that the nominee is a critical employee in the applicant’s business and that the applicant wishes to retain her indefinitely.  Therefore, the Tribunal is satisfied that the terms and conditions of employment do not expressly exclude the possibility of extending the period of employment after the applicant has held a Subclass 186 visa for at least 2 years.

28. The Tribunal has considered the detailed financial statement for the most recent financial year, and notes that the applicant’s business has a strong turnover and modest net profits.  The Tribunal notes that the nominee’s salary is already incorporated into the wages in the profit and loss statement for the business.  The Tribunal notes that the applicant holds significant cash at the bank.

29. Based on all of the evidence before it, 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 exclude the possibility of extending the period of employment.

30. 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)

31. 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.

32. The Tribunal notes that the employment contract provides for a base salary of $54,812.00 based upon a 38 hour week, with provision for paid overtime.  The employment contract notes that superannuation is payable at the applicable rate required by law.

33. The Tribunal has considered the Restaurant Industry Award 2020 (MA000119) (the Award) and notes that the highest grade of waitstaff covered is a Food and Beverage Supervisor.  Clause 18 of the Award states that the minimum weekly pay for a full-time employee at that classification is $916.60.  The Tribunal notes that this equates to an annual salary of $47,663.20, and notes that the nominee’s base salary is in excess of this amount.  The Tribunal notes that the nominee is also entitled to paid overtime for hours worked above 38 hours per week. 

34. The Tribunal has considered the terms of the employment contract and finds that the provisions with respect to leave, notice, and termination are in accordance with the obligations in the Award and the minimum standards set out in the National Employment Standards and relevant workplace relations legislation.

35. Based on all the evidence before it, 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.

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

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

37. 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.

38. As set out above, the Tribunal notes that the applicant’s most recent standard business sponsorship was approved on 18 February 2021.  The requirements at the time of the most recent sponsorship approval did not include any training commitments that have to be fulfilled by the applicant. The Tribunal notes that the sponsorship obligation to provide training no longer applies.  In the circumstances, the Tribunal considers that the requirements relating to training have been satisfied.

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

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

40. 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. 

41. There is no information before the Tribunal to indicate that there is adverse information known to the Department about the nominator or an associated person.

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

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

43. 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.

44. There is no information before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relations laws.  The Tribunal notes that the applicant has provided evidence that it pays superannuation to its employees, and notes that the employment contract provides the minimum terms and conditions of employment set out in workplace relations legislation.

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

    Genuine need to employ nominee: r.5.19(3)(i)

46. 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.

47. At the interview with the Tribunal, Mr Pachhai emphasised that the nominee is an integral part of the applicant’s business and that she has been responsible for training all the floor staff, including many apprenticed trainees, during her time working in the applicant’s business.  The Tribunal notes the body of supporting evidence demonstrating the nominee’s work in training the staff working within the applicant’s business.

48. The applicant has provided a detailed job description for the role of Restaurant Manager. The Tribunal has considered the duties for a Café or Restaurant Manager (ANZSCO 141111) against the job description for the nominee’s role provided by the applicant, and the Tribunal is satisfied that they generally correspond with each other, and the Tribunal is satisfied that the nominee genuinely has been carrying out these duties for approximately 6.5 years.

49. Accordingly, the Tribunal is satisfied 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 therefore finds that the requirement in 5.19(3)(i) is met.

50. 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

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

    Mary Sheargold
    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.